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Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 (15 August 2024)
Last Updated: 15 August 2024
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Supreme Court
New South Wales
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Case Name:
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Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as
Rebeka Deligiannis)
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Medium Neutral Citation:
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Hearing Date(s):
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5, 6, 7 August 2024
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Decision Date:
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15 August 2024
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Jurisdiction:
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Equity
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Before:
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Leeming JA
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Decision:
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Direct the parties to file and serve either an agreed short minute of
order, or alternatively proposed short minutes of order for
which they contend,
accompanied by submissions not exceeding five pages, within 14 days of today,
followed by submissions in reply
not exceeding three pages 7 days thereafter.
The submissions in reply are to indicate whether either side seeks an oral
hearing or
is content with any dispute to be resolved on the papers.
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Catchwords:
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PROBATE — testamentary capacity — knowledge and approval
— undue influence — elderly testatrix altered will
so as to dilute
entitlement in favour of son — whether suspicious circumstances —
testimonial and documentary evidence
as to capacity and knowledge and approval
— whether daughter had received real property during lifetime —
whether additional
reasons for diluting daughter’s entitlement —
significance of those reasons — probate granted in favour of son
—
claim for mesne profits for period of daughter’s occupation of family home
— whether claim available —
consideration of Minister of State for
the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 and Richardson v
Richardson [2021] NSWSC 353 SUCCESSION — claim by daughter
— whether adequate provision made — whether real property received
by her during
lifetime — application refused
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Legislation Cited:
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Civil Procedure Act 2005 (NSW), s 63Common Law Procedure Act 1853
(NSW), ss 37, 165 Common Law Procedure Act 1852 (15 & 16 Vict c 76), ss
41, 214 Common Law Procedure Act 1899 (NSW), s 49 Fair Trading Legislation
(Repeal and Amendment) Act 2015 (NSW) Landlord and Tenant Act 1899 (NSW), ss
1D, 12Probate and Administration Act 1898 (NSW), s 44Recovery of
Possession by Landlords Act 1820 (1 Geo 4, c 87) Stamp Duties Act 1920
(NSW) Succession Act 2006 (NSW), ss 58, 59, 60Supreme Court Act 1970
(NSW), ss 8, 79, 92 Supreme Court Rules 1970 (NSW) Pt 8 r 1, Pt 78 r
69 Uniform Civil Procedure Rules 2005 (NSW), rr 6.18, 7.10, 9.1
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Cases Cited:
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Texts Cited:
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J Chitty and T Chitty, Chitty on Pleading (Sweet and Stevens, London,
1836) G Lindsay, “The ‘Why?’ and ‘What?’ of
‘Suspicious Circumstances’ in Probate Litigation”,
paper
delivered to Law Society of South Australia Succession Law Conference, Adelaide,
16 November 2018 R Lush, The Practice of the Superior Courts of Law at
Westminster (C Reader, London, 1820) C Mitchell and L Rostill, “Making
Sense of Mesne Profits: Causes of Action” (2021) 80 Cambridge Law Journal
130New South Wales Law Reform Commission, ‘Supreme Court
Procedure’, Rep 7 R Stevens, “Should Contributory Fault Be
Analogue or Digital?” in A Dyson et al (eds), Defences in Tort (Hart
Publishing,
2017) 247 R Therry, Reminiscences of Thirty Years’
Residence in New South Wales and Victoria (facsimile of 2nd ed 1863 published
1974,
Sydney University Press)
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Category:
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Principal judgment
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Parties:
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In 2022/345407: Marika Dedakis (Plaintiff/Cross-defendant) Jim
Deligiannis (Defendant/Cross-claimant)
In 2022/103382: Jim Deligiannis
(Plaintiff)
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Representation:
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Counsel: T Alexis SC, S Speirs (Marika Dedakis) C P Birtles (Jim
Deligiannis)
Solicitors: Di Girolamo Lawyers (Marika
Dedakis) Deutsch Miller (Jim Deligiannis)
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File Number(s):
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2022/345407; 2022/103382
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Publication Restriction:
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Nil
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JUDGMENT
- LEEMING
JA: Two proceedings were heard by me, both arising from the death of Ms
Rebeka Deligiannis on 22 January 2022 aged 85. The parties
to each are two of
her three children, Ms Marika Dedakis and Mr Jim Deligiannis. For convenience
and without disrespect or unwarranted
familiarity I shall refer to the various
family members by their given names in the form used at the trial, noting that
Rebeka is
variously spelt, and was also known as Aunt Rena, Jim was also known
as Dmitri, and Marika was often known as Maria and is so named
in the will, but
“Marika” conveniently distinguishes her from her cousin Maria and
her sister-in-law Mary, each of whom
gave evidence in Jim’s case. The only
substantial asset in the deceased estate is a home in Australia St, Camperdown
which
is valued at some $2.9 million. Aside from the costs of this litigation,
the liabilities are few, such that the net value of the
estate is approximately
$2.74 million.
Procedural background
- By
summons in the Succession & Probate List (Probate) dated 6 May 2022, Jim
seeks a grant of probate in common form in respect
of a will executed by the
deceased on 20 August 2013 appointing him as sole executor which leaves the
estate 75% to him and 25% to
Marika. Marika responded by two general caveats,
the first filed on 17 May 2022, and the second on 17 November 2022 (upon the
lapsing
of the first: Supreme Court Rules 1970 (NSW), Pt 78 r 69).
- By
summons in the Succession & Probate List (Family Provision) filed on 16
November 2022, Marika opposes the will being admitted
to probate, on the bases
of capacity, knowledge and approval, and undue influence. She seeks a
declaration that her mother died intestate.
Marika also makes a claim for a
family provision order under the Succession Act 2006 (NSW). Her
application was made within the 12 months specified by s 58(2), and it is
accepted that she is an “eligible person”.
- By
cross-claim filed in the proceeding commenced by Marika, Jim seeks a grant of
probate in solemn form, as well as a claim for mesne
profits for the period
during which Marika remained in possession of the home after her mother’s
death. The cross-claim also
seeks possession of the home, but that relief is no
longer needed (although the claim is relevant to an issue concerning the
availability
of mesne profits). Jim obtained a representation order pursuant to
r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) on 27 October 2023
for the purposes of the family provision claim and the cross-claim, and an order
for administration pendente lite of the estate for the purposes, inter
alia, of preparing the house for sale and selling it. Marika vacated possession
on 20 February
2024. The property has not been sold, although it seems
inevitable that that will occur on any view of the outcome of the litigation,
and Jim’s evidence is that he intends to do so.
- Nothing
turns on there being two proceedings. That has been brought about because the
parties are, sensibly, having two quite different
aspects of their dispute
resolved at the same time. One is a question of probate: whether there should be
a grant of probate of the
2013 will. The other is whether a family provision
order should be made in favour of Marika. The two are inter-related. When
opening
the case, Mr Alexis SC, who appeared with Mr Speirs for Marika,
confirmed that he only pressed the claim for an order for family
provision if
Marika’s challenge to the grant of probate failed (T12.32). When closing
the case, Mr Birtles who appeared for
Jim confirmed that he did not press his
claim for mesne profits if Jim succeeded in obtaining a grant of probate
(T214.33).
- It
was open to Jim to have filed in the probate proceeding a summons for the caveat
to cease to be in force, in which case the pleadings
which would have ensued
would, as a matter of administrative practice, have been filed in the same
proceeding: see Re Estate Capelin, Deceased (2022) 107 NSWLR 461; [2022]
NSWSC 236 at [17]. Had that course been taken there probably would have been a
single proceeding. But that did not occur, and Marika filed a separate
summons
(as, so far as I can see, she was entitled to do). I mention this only to
indicate why there are two proceedings. So far
as I can see, nothing substantive
turns on it save that this Court’s orders will have to dispose of two
originating processes.
Both proceedings were heard together, with evidence in
each being evidence in the other.
- I
saw and heard each of Marika, Jim, their brother Spiro, his wife Mary, their
cousin Maria and the family solicitor Mr Nicholas Coombes
being cross-examined
on affidavits they had sworn. Mr Coombes had prepared the will as well as
witnessing its execution. I also heard
evidence in chief and cross-examination
of Mr Fotis Kakaroubas, who attended in response to a subpoena ad
testificandum. He had come to know the deceased as a friend of his mother,
and in 2013 he had prepared a document in English at Rebeka’s
request
explaining the rationale for her will, which document was located with the will
in Mr Coombes’ office. No other documents
from any file were available.
The other witnesses were not required for cross-examination.
Issues
- The
principal legal issues are readily stated. They are: (a) whether Jim has
established that the deceased (i) had capacity in 2013
and (ii) knew and
approved the will, (b) whether Marika has established undue influence, and (c)
if probate is granted, (i) whether
adequate provision for the proper
maintenance, education or advancement in life of Marika has not been made by the
will and (ii),
if not, whether an order should be made and in what amount.
- The
principal factual issues will not be obvious from the above, but it is
convenient to state them now: (a) whether there was a pre-existing
will and its
effect and whether that was known to Jim, (b) how the 2013 will came to be
drafted and executed, (c) whether the justification
contained in the will for
the less generous provision to Marika is correct – this turns on the
circumstances by which Spiro
came to own property at Belmore and Marika came to
own property at Wiley Park, and (d) whether there were reasons for the limited
provision made to Marika other than those stated in the will.
- The
parties joined issue as to whether there were “suspicious
circumstances”. I find that suspicious circumstances attended
the making
of the 2013 will. That is a result of the collocation of circumstances that (a)
an elderly woman made a will so as to
leave unequal portions amongst her
children, (b) prior to its being made, the son and daughter shared equally in
the mother’s
deceased estate, (c) the new will was made when the daughter
was out of the country, (d) the new will was executed in the presence
of the son
who became the primary beneficiary, (e) the son who became the primary
beneficiary took the testatrix to the solicitors
in order for the will to be
made, and (f) the solicitor has been unable to produce any file note or any
contemporaneous record of
instructions made by him.
- However,
I have heard full evidence on all issues, including capacity, knowledge and
approval and undue influence. This is not a case
that should be decided by
reference to onus, and I find it difficult to see how anything turns on whether
or not there be suspicious
circumstances. Indeed, my experience in this trial
confirms my view that where there has been a full hearing, the introduction of
a
requirement of “suspicious circumstances” which if found cause an
evidentiary onus to shift is generally unwarranted.
That approach introduces an
additional issue, to no useful purpose, and may (as occurred in Mekhail v
Hana; Mekail v Hana [2019] NSWCA 197) contribute to error by distracting
from an evaluation of the totality of the evidence. I agree with Justice
Lindsay’s extra-judicial
observation on this point:
In the modern form of ‘judge alone (case managed) trial’ it is
generally artificial, at least at a final hearing, to
analyse a case in terms of
a ‘prima facie case’ or dispositive
‘presumptions’. By the time a judge is called upon to determine a
case, it generally must
be determined on all the evidence then before the Court,
drawing whatever inferences may be available from that evidence: G Lindsay,
“The ‘Why?’ and ‘What?’ of ‘Suspicious
Circumstances’ in Probate Litigation”, paper
delivered to Law
Society of South Australia Succession Law Conference, Adelaide, 16 November
2018.
- That
passage was approved in Mekhail v Hana; Mekail v Hana at [168] (albeit in
obiter), and was followed in (without seeking to be exhaustive) Chalik v
Chalik [2024] NSWSC 117 at [282] (Henry J), Estate of Guamani; Guamani v
De Cruzado [2023] NSWSC 502 at [225] (Meek J); Dybac v Czerwaniw
[2022] NSWSC 1279 at [235] (Slattery J) and Re Estate Capelin, Deceased
(2022) 107 NSWLR 461; [2022] NSWSC 236 at [98] (Lindsay J). It is also
reflected in the criticisms by Ward CJ in Eq and Hallen J of the artificiality
of a two-stage approach involving
presumptions in Estate of the late
Genevieve Bryan [2022] NSWSC 965 at [425] and Starr v Miller [2021]
NSWSC 426 at [472]- [474] (appeal dismissed [2022] NSWCA 46) respectively.
Further, it coheres with the absence of any presumption of undue influence in
probate: see Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118.
In short, as Williams J observed in Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 at
343; [1942] HCA 13, “[u]sually the evidence is such that the question upon
whom the onus of proof lies is immaterial”.
- None
of the foregoing detracts from the force of the observations in Tobin v
Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [43]- [54]. True it is that
a rational will proven to have been duly executed entails a presumption of
capacity and of knowledge and approval,
absent circumstances which raise a doubt
as to either. It will be seen that I have concluded that this is a rational
will, and it
has at all times been common ground that it was duly executed. But
no court having heard full evidence is entitled to shut its eyes
to evidence
concerning the testatrix’s capacity or her knowledge and approval of the
will and grant probate. The reality of
most modern litigation is that there is
no opportunity for any determination of capacity or knowledge and approval in
advance of
the trial. In truth, the role of the presumptions flowing from the
due execution of a rational will primarily affects not so much
the conduct of
the trial and the determination by the Court, but the preparation of litigation
in advance of trial, and in particular
the decisions to adduce evidence of
cognitive capacity and the circumstances surrounding the execution of the
will.
- This
litigation also indicates a further difficulty with the utility of the notion of
“suspicious circumstances”. Despite
whether or not there are
suspicious circumstances being a binary question, if suspicious circumstances
are found to exist, then it
is necessary to weigh in the balance the strength of
the case disfavouring a grant of probate against the case propounded by the
executor. Another way of putting this is that “suspicious
circumstances” has both a digital and an analogue aspect,
failing to
appreciate which can lead to error; cf (in a completely different context), R
Stevens, “Should Contributory Fault
Be Analogue or Digital?” in A
Dyson et al (eds), Defences in Tort (Hart Publishing, 2017) 247. After
all, as Viscount Simonds said in Wintle v Nye [1959] 1 WLR 284 at 291,
“[t]he degree of suspicion will vary with the circumstances of the case.
It may be slight and easily dispelled. It
may, on the other hand, be so grave
that it can hardly be removed.”
Uncontroversial
facts
- All
of the events occurred more than a decade ago, and many occurred more than three
decades ago. Memory is fallible and malleable,
especially memory concerning past
beliefs. One of Lord Leggatt’s first judgments contains an extensive and
influential consideration
of the frailties of memory, including (relevantly for
present purposes) that memories of past beliefs are revised to make them more
consistent with present beliefs: Gestmin SGPS SA v Credit Suisse (UK) Ltd
[2013] EWHC 3560 (Comm) at [18]. It is usually desirable to start with reliable
contemporaneous documents and uncontroversial facts. “Usually, the
rational
resolution of an issue involving the credibility of witnesses will
require reference to, and analysis of, any evidence independent
of the parties
which is apt to cast light on the probabilities of the situation”:
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA).
That is not to deprecate the potential significance of testimonial evidence. In
particular, as was said by Bell P in
ET-China.com International Holdings Ltd
v Cheung [2021] NSWCA 24; 388 ALR 128 at [27]- [29], testimonial evidence may
provide valuable assistance in explaining the context of, and omissions from,
the contemporaneous documents.
That is of particular pertinence in the present
case, in respect of the property transactions which occurred in 1988 and 1992.
Accordingly,
I start with what is either uncontroversial or established by
contemporaneous documents.
- There
were three children of the marriage of Rebeka and Con Deligiannis: Spiro (born
in 1960), Marika (born in 1966) and Jim (born
in 1968). All children lived with
their parents at the Australia St property until they were married, and, in the
case of Marika,
after she was married. Very little emerges from the evidence
about Rebeka’s and Con’s early life. According to her death
certificate, she was born in Agios Kostantinos Sparti in Greece, and arrived in
Australia aged 21. Rebeka only ever spoke broken
English, and seems to have been
unable to write in English. She had an English signature, but revealingly a
signature she made in
2016, when she was ailing, uses Greek characters (the
‘e’s in Rebeka are epsilons and the ‘g’ in her surname
is a gamma). It seems probable that she arrived in Australia from Greece after
the Second World War, like many others, and worked
hard to establish herself in
a new country. There is evidence that the traditions of the church, especially
Easter and Christmas,
were very important to Rebeka.
- Sadly
Con passed away in 1982, when the children were aged 21, 15 and 13. At that
stage, Rebeka inherited not only the Australia St
family home, but also a
property on Bridge Rd in Belmore. She did not remarry. An issue to which I shall
return is whether Rebeka
made a will after her husband’s death.
- The
older son Spiro has renounced all claims to the estate (both in the event of
intestacy and under the Succession Act). The circumstances in which that
occurred are relevant to Marika’s claims.
The purchase and
sale of Lakemba
- In
1980 Spiro became a co-owner, with his parents, of property at McDonald St
Lakemba. On paper, he was tenant in common as to half,
and his parents as joint
tenants of the other half interest. The purchase price was $46,000. Spiro gave
evidence that his parents
were guarantors; it also seems likely that their
presence was necessary in order to obtain a bank loan, prior to the deregulation
of the banking system a few years later.
- Spiro
gave evidence in cross-examination, and I did not understand there to be any
challenge to it, that he made all of the repayments
of principal and interest by
himself, and became entitled to the entirety of the proceeds of sale in 1988.
That this was uncontroversial
was made clear from Spiro’s
cross-examination:
Q. ... I think many years after, you were surprised to see – that the
Lakemba unit was purchased not only in your name, but
also in the name of your
parents?
A. In those days, what I was - I was 20 years old, but couldn’t get a bank
loan, so I went with my father to the CBC Bank to
get the loan, and it was, you
know, on the proviso that he’s the - their name’s on the title also.
Now, the situation
is that I worked nightshift. I worked Friday nights and
Saturday nights. I full gave up my - my - my life to get a - to get ahead
in
life.
Q. Understood. This isn’t controversial, I don’t think, but I just
want to tick this off with you, if I may. Your mother
and father didn’t
contribute one cent to the purchase of the home unit at Lakemba?
A. That’s correct.
Q. They, for all intents and purposes, treated you as the only owner, the sole
owner of the property?
A. Correct.
- In
1988, after Con’s death, Rebeka and Spiro sold the Lakemba property, for
around $59,000. There was uncontroversial evidence
that there was talk of
giving it to Marika, who found the property unsuitable.
The
acquisition of Wiley Park by Spiro and Marika
- In
1988, Marika paid a holding deposit of $500, and then Spiro paid the balance of
the deposit of $11,000, on a flat in Denman Avenue
Wiley Park acquired by them
at a price of $115,000. Spiro and Marika acquired the property as tenants in
common in equal shares,
with the balance of the purchase price coming from a
loan from the National Australia Bank in the amount of $60,000, and the rest
from Spiro.
- In
around June 1988 when Marika obtained a half interest in Wiley Park, she was
aged 21 (about to turn 22) and living at home. Marika
made no suggestion that
she contributed any of the deposit (save for the $500) or any of the funds
required at settlement, although
it is also common ground that she was solely
responsible to service the mortgage. She accepted that Spiro’s
contribution to
the purchase price was $59,131.40 (being $11,000 of the deposit
and the entirety of the amounts required on settlement (principally,
stamp duty
of $2,515.50 and $1,588.45 charged by Coombes, Lucas & Co) save for the
$60,000 borrowed from the bank).
- The
memorandum of costs and disbursements at settlement includes an amount of $95
described as:
TO OUR COSTS of acting on your behalves in relation to Power of Attorney and
attending to the stamping and registration thereof say
- No
other evidence, so far as I can see, refers to any power of attorney. However,
there is no reason to doubt that one came into existence
at this time. The donor
must have been Spiro or Marika or both of them. The memorandum of transfer is
signed by the vendors, but
not signed by either Spiro or Marika but instead is
signed by the “solicitor for transferee”, Nicholas Constantine
Coombes
(although to be clear he does sign explicitly as the donee of a power of
attorney). Nonetheless, it seems likely that neither Spiro
nor Marika attended
settlement. This curiosity was not explored in the evidence, despite the
contrast with what occurred in 1992.
- The
property at Wiley Park was tenanted thereafter, initially at a rent of $140 per
week, which was almost sufficient to meet the
repayments required by the bank
(which were $656 per month for a 20 year mortgage of $60,000 at 14.5% per
annum). Spiro gave evidence
that he made no repayments, and that it was agreed
between the siblings that Marika would be solely responsible for the repayments
and outgoings, and solely entitled to the rent. Marika accepted that it was a
relatively spacious unit, renovated by Jim ten years
ago, with two bedrooms and
an internal laundry.
Marika acquires full ownership of Wiley Park
and Spiro is given Belmore
- In
1990, Spiro married his first wife, and left the Australia St home. His wife
died in 1992, following which Spiro returned to the
family home, living there
until 1999.
- Two
memoranda of transfer were signed on 20 March 1992. In one, Rebeka transferred
the Belmore property to Spiro. In the other, Spiro
transferred his half interest
in the Wiley Park property to his sister.
- Both
memoranda of transfer identified a consideration. There is no suggestion in the
evidence that any money was paid by anyone in
these intra-family transfers, but
the fact that a transaction was not for valuable consideration did not mean that
ad valorem duty was not payable, and accordingly it was necessary to
determine a price. In the case of Rebeka’s transfer of Belmore to
Spiro,
the stated consideration was $140,000, and the document has a handwritten
annotation of $3,388 which is highly suggestive
of stamp duty (it is almost
exactly “$1,290 plus $3.50 for every $100 or part thereof by which the
amount exceeds $80,000”
which was the rate prescribed for conveyances of
property where the amount of consideration exceeded $80,000 but did not exceed
$300,000
in Part 1 of the Second Schedule to the Stamp Duties Act 1920
(NSW)). In the case of Spiro’s transfer of a half interest in Wiley
Park to Marika, the stated consideration was $62,500. The
transfer is stamped,
but the amount of duty paid is illegible on the copy tendered.
- The
signatures of each of Rebeka and Spiro on the Belmore transfer, and each of
Spiro and Marika on the Wiley Park transfer, were
witnessed by Mr Coombes.
- The
transfer of Spiro’s half interest was not lodged until some months later,
at the same time as Marika, now as sole owner,
mortgaged the land to secure her
obligation to the bank. At that stage, the mortgage appears to have been stamped
for loan security
duty on the basis of indebtedness of $64,000. (The stamp is
unclear, but the handwritten numbers 64,000 and 197 are perfectly legible,
and
loan security duty was payable at the time at the rate of “$5 for the
first $16,000 and 0.4% on the amount exceeding the
first $16,000”, and 197
= 5 + 0.004 x 48,000.) That is suggestive, although not determinative, of
Marika’s indebtedness
to the bank in 1992, almost four years into the term
of the facility, having increased to $64,000.
- To
reiterate, it was common ground that Spiro received Belmore – where he
lives to this day – as an “early inheritance”,
and that in
fact he paid nothing for it. (He received it in 1992, but he gave evidence that
the property required complete demolition
and rebuilding.) It was common ground
that Marika paid nothing for the half interest in Wiley Park which was
transferred by Spiro
to her.
- It
is true that Rebeka did not convey any real property directly to Marika
during her lifetime. Marika contended that Spiro’s decision to give her
his one half interest in Wiley Park was his
own decision, not her
mother’s.
- Marika
continues to own the Wiley Park property. It continues to be tenanted. It also
continues to be mortgaged. At some stage Marika
refinanced with Westpac. It may
be that this occurred in July 2003. Exhibit D is an incomplete collection of
Westpac bank statements
concerning both a “variable rate investment
property loan” and a “fixed rate investment property loan”
obtained
by Marika. The earlier Westpac statements show debt to that bank not
exceeding $28,000, while on 15 July 2003 the same account has
withdrawals of
$101,369.24 and $17,859.88, at least one of which is consistent with paying out
indebtedness exceeding $100,000 to
the National Australia Bank. There are also
debits of $17,000 on 1 April 2015 and $20,000 on 21 April 2015 (Marika said she
withdrew
large amounts to buy a car and to pay for repairs to the roof of the
house). The overall effect of the withdrawals combined with
limited repayments
(at this time, approximately $50 each week), was that the debt increased from
$162,904 in January 2015 to $229,987
by July 2015.
- Marika
disclosed in her first affidavit in November 2022 a mortgage debt of $270,000.
After being cross-examined on the most recent
bank statements, she gave this
evidence:
Q. Ms Dedakis, the statements that I’ve taken you to show that your loan
account balance has increased from about $50,000 to
about $294,000 over the last
20 years. Do--
A. Yes.
Q. --you agree? The reason for that increase is twofold: (a), capital purchases
- things like cars; and (b), you’ve drawn down
on your loan to repay your
credit cards. Do you agree?
A. I agree.
- During
his cross-examination, Spiro expressed surprise that Marika had not repaid the
relatively small mortgage on Wiley Park, more
than 30 years
later.
Events between 1993 and 2013
- As
noted above, Spiro returned to Australia St in 1992, where he lived until his
second marriage in 1999. Jim lived in Australia St
until he married in 1996.
Marika lived in Australia St with her mother for the entirety of her life, until
February this year. However,
in 2013 she married, and thereafter her husband
also lived at Australia St.
The 2013 will and handwritten
document
- The
will is a straightforward document of four short clauses. It was plainly typed
in Mr Coombes’ office. Clause 1 revokes earlier
wills. Clause 2 appoints
Jim as executor and trustee. Clause 3 gives the entirety of Rebeka’s
estate 75% to Jim and 25% to
Marika. Clause 4 provides:
I CONFIRM that I have intentionally and specifically not provided in this my
Will for my son SPIRO DELIGIANNIS or a greater share
for my daughter MARIA
DELIGIANNIS as I have assisted them both financially during my life and in
particular but not limited to SPIRO
DELIGIANNIS in respect of a residential
property in Belmore and MARIA DELIGIANNIS in respect of a residential unit in
Wiley Park.
- The
will was signed by Rebeka, using English characters. Her signature was witnessed
by Mr Coombes and another solicitor in the office.
- Mr
Coombes did not retain a file for the steps taken in 2013. However, he produced
the following document which was kept with the
will in his safe, which became
Exhibit F:
- It
was uncontroversial that most of the handwriting was that of Mr Fotis
Kakaroubas, a friend of Rebeka (or more precisely, the son
of her friend) who
lived nearby and who got to know the deceased while he and his mother were
walking in Camperdown. The signature
at the bottom left (which is in a different
pen) appears to be that of Rebeka, and closely resembles that on the will. The
writing
at the top right is that of Mr Coombes, and says “Prepared by a
neighbour!”
- It
may be noticed that while the will speaks of Marika receiving the unit in Wiley
Park, the note refers to her receiving the unit
at Lakemba. Wiley Park and
Lakemba are neighbouring Sydney suburbs.
Events between 2013
– 2022
- There
was no challenge to Marika’s evidence that she first learnt of the 2013
will in around 2016. She said that after her mother’s
cognitive function
had declined, she attended Mr Coombes’ office with Jim and perhaps Spiro
for the purpose of Rebeka executing
an enduring power of attorney and appointing
an enduring guardian. Those documents were executed and are dated 22 July 2016.
- Marika
said she was shocked when, while waiting for Mr Coombes in his offices, there
was a conversation to the following effect between
her and Jim after she
suggested that they look at their mother’s will, with a view to its being
updated to include Stacie (Jim’s second child) and Constantine
(Spiro’s child). She said that the following exchange then
occurred:
Jim: Don’t worry, it’s been fixed.
Marika: What do you mean, it’s been fixed?
Jim: 70-30.
Marika: What do you mean 70 – 30?
Jim: 70 per cent to me and 30 per cent to you. Why should the kids get my
inheritance? And the money is not going to end up in Canberra.
- Jim
agreed that most of the above exchange took place, and the two of them were
whispering, waiting to be called into Mr Coombes’
office. Marika
and Jim agreed that Rebeka did not react to the conversation. Marika suggested
but Jim denied that that reflected Rebeka’s
dementia at that stage; Jim
said that the two of them were whispering and their mother had not heard them.
But it is clear that on
that day, Rebeka was unable to sign one of the
documents, save with a cross, and she had been diagnosed with dementia more than
a
year earlier, in June 2015. I note that no medical records whatsoever were
tendered in this trial, and June 2015 is a reference to
Jim’s
substantially unchallenged testimonial evidence.
- Marika
said she was shocked and speechless and had a feeling of helplessness. She said
that she would “never forget” the
abrupt response she received from
Mr Coombes when she told him she was in a state of shock because she had just
learned of the will,
and he said “Well, that was your mother’s
wishes”.
- On
1 December 2016 Marika forwarded an authority, purportedly signed by her mother,
to Mr Coombes which stated:
Dear Nick,
I authorize your office to provide to my daughter Marika Dedakis (Maria
Deligiannis) a copy of my will.
Yours faithfully
[signature]
Rebeka Deligiannis
- The
signature resembled that of Rebeka. In cross-examination, Marika volunteered
that she had forged her mother’s signature.
Neither the enduring power of
attorney nor the appointment as enduring guardian authorised her to do so.
However, Marika’s
counsel observed that while it had been wrong for Marika
to deceive Mr Coombes, her claim that she had been under a deal of pressure
at
the time was not challenged in cross-examination, and far from seeking to
conceal what she had done, she volunteered the fact
that she had signed the
letter as soon as the issue was raised. I agree with Mr Alexis that very little
turns on Marika’s credit
in this litigation.
- Mr
Coombes provided the copy of the will to Marika.
- Thereafter,
Marika spent some five years knowing that her mother was not competent to write
another will. Rebeka stayed at home until
May 2017, where she was cared for
principally by Marika. Commencing in May 2017 (a date established by financial
records), Rebeka
began to spend many days each month at a day care nursing home
run by Uniting Care Service, which also included occasional overnight
stays. For
example, in October 2017, Rebeka attended at the centre for 25 days and two
nights. At some stage thereafter, she moved
to full-time residence at an aged
care facility in Marrickville. Marika said she visited her mother every day
prior to Covid restrictions.
Rebeka passed away on 22 January 2022, aged
85.
- In
April 2022 Marika’s solicitors wrote to Mr Coombes querying the will, and
stating that Marika had serious reservations about
it including her beliefs that
Rebeka lacked capacity and that the will did not contain her testamentary
intentions. Mr Coombes confirmed
that he did not retain a file, and that he did
not have a 1998 will. After the first caveat was lodged, Mr Coombes wrote a
longer
letter in response which included:
The executor is greatly offended by the allegations in your letter. There was no
lack of capacity and there was no undue influence.
We are in possession of a
considerable body of evidence that clearly demonstrates that there is no merit
in the allegations made
in your letter.
- Mr
Coombes thereafter declined the solicitor’s request to be provided with
the considerable body of evidence. It is not entirely
clear to what he had been
referring. Shortly thereafter he ceased to act, and Jim’s current
solicitors were retained. They
wrote a long letter dated 26 August 2022, which
included an open offer, and which attached emails from Maria (Jim’s and
Marika’s
cousin) and Mary (Jim’s and Marika’s sister-in-law),
both dated 1 August 2022.
- Maria’s
email included the following:
I am writing this email so you can have some information tomorrow and are happy
to provide a formal statement to the three of you
at a later date.
My statement will include my conversations to the best of my recollection
-outlined below:
On three separate occasions during my visits with Aunty Rena (Rebeka
Deligiannis) with my mother (Kostoula Deligiannis) Aunty Rena
expressed concerns
about her home xxx Australia street Camperdown.
Time frame Before Maria's Wedding to Kosta Dedakis
Visit one and two
Aunty Rena stated she was worried about Kosta and Maria making a claim on her
home (the xxx Australia street Camperdown property)
since Maria and Kosta
[Dedakis] will be living there after Maria and Kosta's marriage. Aunty Rena
specifically stated she did not
want Kosta or his family making any claim on her
home. Aunty Rena also asked if Kosta Dedakis could make a claim on her home
should
Maria and Kosta divorce if they were living her home after their
marriage. Aunty Rena stated that her home which she bought with
her late husband
(Kosta Deligiannis) was to be left to her son Jim (Deligiannis), since the other
two children (Spiro, Maria) had
already been given their inheritance over the
years and that Jim was the only child that had not received any inheritance.
I reassured aunty Rena as best as I could. I unpacked her concerns so I could
understand them and broke them down so I could confirm
what she was saying. I
recommended having this type of conversation (raising her concerns and wishes)
first with Maria as she is
a reasonable person and would want to protect her
(aunty Rena) and the family home. Then with all three children present without
their partners so all three children are aware of her concerns and wishes. I
said to her that I did not know what her legal situation
was and that I was not
across the legal stuff regarding her concerns so maybe it would be a good idea
to get some independent legal
advise.
1. About Aunty Rena's concerns that Kosta (Dedakis) and his family making a
claim on xxx Australia Street Camperdown - I suggested
speaking to all three
children first and then obtain legal advise eg maybe get some legal document
signed by the relevant parties
to protect Aunty Rena's house before Kosta and
Maria get married and move in. I asked if she had a lawyer which she stated she
did
and he spoke Greek. I encouraged her to have a meeting with him to express
her concerns and what she could do to safeguard her home
as per her wishes.
2. About Aunty Rena's will – I asked if Aunty Rena if she had a will.
Aunty Rena informed me she did have a will. I said to
her I did not know the
details but it was my understanding over the years was that Spiro had received
Belmore house as his inheritance
and Maria had received a flat in Wiley park or
Lakemba as her inheritance and Jim was to inherit Australia street upon her
death.
I asked her if that was correct? Aunty Rena replied that was correct. I
reassured her then that everything should be ok but she should
check with her
lawyer to ensure that her concerns and wishes were also reflected in her will.
Aunty Rena informed me that she would
do that. Aunty Rena specifically and
strongly stated that the family home and I quote “their fathers home is to
stay with Jim
(Deligiannis) and not go to the Canberrians”
Time frame After Maria’s wedding
Visit one
Aunty Rena was very concerned expressing her concerns outlined in points one and
two above. I asked her if she had she spoken to
Maria specifically or to her
other children before Maria got married or had she got legal advise. Aunty Rena
stated she found it
difficult to approach Maria as she feared that they would
argue. She stated that she would get legal advise.
Visit two
Aunty Rena told me not to worry as she has taken care of her concerns re xxx
Australia Street Camperdown.
- Mary’s
email included the following:
I cannot recall the exact date(s) of the conversation(s) between my
mother-in-law and my-self but they were at a time frame prior
to her daughter,
Maria Deligiannis’, wedding.
I spoke on the phone and visited my mother-in-law on a regular basis and it was
during one of those one-on-one visits where she confided
in me that she wanted
to find someone to take her to her solicitor in Marrickville to amend [her] last
Will. I did not want [to]
become involved in such a private family matter
between her and her children and so I did not take her. She mentioned it to me
again
on another occasion but again I did not want to become involved and so did
not offer to take her.
After a certain amount of time (I cannot recall date) my mother-in-law confided
in me that she found someone to take her to her solicitor
and that she changed
her Will. She did not tell me who took her nor what the change involved and nor
did I ask.
I prefer not to be involved in the current situation of my mother-in-law’s
last Will. I wish to remain a neutral party between
Jim and Maria as I value
them both.
- The
essence of the offer made by Jim’s solicitor was vacation of the home by
30 September 2022, a waiver of any entitlement
to an occupation fee for the
seven months Marika had lived at Australia St after Rebeka’s death, and an
increase in Marika’s
entitlement under the will to one third.
- Thereafter
Marika caused a series of questions to be asked of her older brother Spiro in an
email exchange, part of which was in evidence.
The questions referred to a 1988
will, which in her evidence Marika said was an error for 1998. The questions
followed by Spiro’s
answers in bold included the following:
(i) is he aware that your mother made a Will in 1988, and if so:
In 1988 I was overseas for approx. 4 months, I do recall that a will was done
as mentioned by Maria.
(a) who was the solicitor who drafted the 1988 Will.
Nicholas Coombes is/was the solicitor
(b) did he take your mother to the solicitor to make the 1988 Will;
I can’t recall. I think Anastasios Spyroulias took her
(c) did the 1988 Will leave your mother’s estate 50% to you and 50% to
your brother Jim.
I didn’t or haven’t seen the will, at the time our mother stated
that it was equal shares [between] Maria and Jim
- The
offer in Jim’s solicitor’s letter was not accepted, and proceedings
were commenced by Marika in November.
- Rather
than summarising the testimonial evidence, which was relatively brief, (with the
cross-examination lasting one and a half days)
and all of which was affected by
the passage of time, it is more efficient to proceed directly to the factual
issues.
Was there a previous will?
- I
find that there was a previous will. Rebeka made it in around 1998. No such will
was in evidence. However, the inherent probabilities
coupled with the weight of
evidence supports its existence.
- First,
it will be recalled that after her husband’s death in 1982, Rebeka was a
widow who owned the family home and a property
at Belmore, and co-owned a
property at Lakemba with Spiro. The evidence all points one way in favour of the
gift of land at Belmore
to Spiro in 1998 being in lieu of an inheritance. A
pre-inheritance gift to a child, in lieu of an inheritance, is only effective
if
there is a will which departs from the equal sharing of children on intestacy.
- Moreover,
Spiro’s first wife died in 1992, and he had returned to the family home
with his widowed mother. He married his second
wife in 1999. Jim married in 1996
and their son Constantine was born soon after. Those significant changes in the
family structure
would have made the making of a will by the mother in 1998 or
1999 a reasonably obvious and appropriate step to take.
- Thirdly,
there is testimonial evidence of an earlier will:
(1) Marika gave evidence, about which she was not cross-examined, that she had
spoken with her mother about the previous will, and
had at one stage been given
it and read its contents. She remembered that it left $30,000 to Jim’s
son, and $30,000 to Spiro
to give to his future child, and divided the balance
equally between herself and Jim.
(2) Spiro likewise accepted in cross-examination, consistently with his response
to Marika’s email reproduced above, that his
mother told him there was an
earlier will, and that he believed that Marika’s godfather took her to Mr
Coombes for it to be
drawn up. He agreed when responding to Marika’s email
that “there was a monetary amount for the grandchildren, born and
future”. The references by Marika and Spiro to future grandchildren
dovetail with Spiro’s second marriage in 1992 and
the prospect of
children.
(3) Maria gave evidence, consistent with her email of 1 August 2022, that she
had had a conversation with Rebeka before the wedding
in which she had asked if
“Aunty Rena” had a will and had been told that she did.
(4) Mary’s evidence was to the effect that Rebeka had asked her to take
her to a solicitor in Marrickville to amend her will, and she agreed in
cross-examination that she knew that the earlier will left some money (she was
unsure how much) to her
son, and was aware that the position had changed. The
cross-examination on this issue concluded as follows:
Q. But two things are clear. Before August 2013, you had an understanding that
your son was to benefit under--
A. Yes.
Q. --his grandmother’s will?
A. Yes, correct.
Q. After 2013, you learnt that that had changed?
A. Yes.
- Marika
submitted that insofar as the evidence suggested that the earlier will contained
a legacy to Jim’s son, that enabled
the will to be dated to around
1998.
- It
is true that Mr Coombes was unaware of a previous will, but that carries little
weight when it would not be expected that he would
have any actual recollection,
and his office’s records were demonstrably fallible even for a will made
in 2013.
- I
am comfortably satisfied that there was a will, principally because it seems
inherently probable that a family that placed great
store on property ensured
that their affairs were properly regulated, and because the weight of evidence
favours that being the case.
What was the nature of the earlier
will and was Jim aware of it?
- There
was some evidence that the earlier will left Australia St to Jim. In particular,
that was Maria’s evidence in her 1 August
2022 email reproduced above. She
confirmed it in an affidavit which was to substantially the same effect as that
email. Jim gave
evidence to the same effect in cross-examination.
- It
will also be noted that Marika’s email to Spiro proceeded on the basis
that the earlier will divided Rebeka’s estate
equally between Spiro and
Jim; this may have been another error.
- But
the difficulty with any scenario whereby Marika received nothing under her
mother’s earlier will is that in that event there
was scarcely any
plausible basis for a fear that “the Canberrans” would take such
property as Marika might inherit if
Rebeka predeceased her (as was probable) and
Marika’s marriage foundered. Further, to the extent that there was still
such
a basis, amending the will would not address the fear.
- Marika
was married on 22 June 2013. She took her husband’s name. I shall refer to
him as “Costa”, without disrespect
or familiarity, because it was
the name universally used in the evidence.
- There
was a deal of evidence that Rebeka was agitated by her daughter’s marriage
and the threat she perceived it entailed. No
doubt she wished the best for her
daughter, but that is not inconsistent with a concern that there was a
possibility that her marriage
might fail, in which case Marika’s former
husband might make a claim against such property as Marika had inherited. Thus
Jim
gave evidence of his awareness of his mother’s agitation at the time
of the wedding concerning the risk that Costa might make
a claim, perhaps
especially if the house ended up being owned or partly owned by
Marika:
Q. And you knew that Costa might be able to make a claim in the sense that your
mother's property or money might end up in Canberra?
A. That was my mother’s biggest concern. My mother's biggest concern,
yes.
Q. What I’m asking you is whether you understood that?
A. I guess, yeah, I would’ve understood it, I guess. But, yeah, it
wasn’t my biggest concern, it was my mother’s.
Q. If we just go to the conversation which you told the Court now you
can’t remember saying to your sister, “And the
money is not going to
end up in Canberra”, that’s a short hand way of expressing something
that you well understood at
the time, namely Costa could make a claim and any
inheritance that Marika received from her mother could go via such a claim to
Canberra;
correct?
A. That sounds correct, I guess.
Q. That’s exactly what any reference to money ending up in Canberra--
A. Yeah, but like I said to you before, it was my mother’s words. They
weren’t my words. That was my mother’s biggest
fear.
Q. But you shared that fear as well; didn’t you?
A. Well, it's my mother’s fear, yeah. Any family would.
Q. May his Honour take it that you and your mother discussed that subject at
least once but may I suggest many times before your
sister got married?
A. It was, but I can’t say many times. Mum did bring that up with me.
- There
was also a deal of evidence, which to the extent it was presented in
cross-examination I found highly persuasive, that after
Rebeka had made the 2013
will, she conveyed to her family that she felt a sense of relief. For example,
Maria gave this evidence
at the conclusion of her cross-examination:
Q. Just one other thing I want to take up with you before I sit down. On the
second visit after the wedding, your Aunt Rena seems
to have got herself to a
completely different frame of mind; is that right?
A. Yes. There was a vast change in her.
Q. A vast change?
A. Yep.
Q. And whatever had occurred, which I gather you didn’t know what had
actually occurred?
A. No, I didn’t.
Q. But whatever it was, what you saw was relief; is that right?
A. Yes.
Q. Relief in relation to the concerns that she had expressed earlier.
A. Yes.
Q. And to the extent that she spoke about it she told you that she’d taken
care of her concerns about the house; is that right?
A. She said in Greek..(foreign language).. like don’t worry, I’ve,
I’ve taken care of everything.
Q. Yes.
A. Yeah.
Q. And you took that as being taken care of everything in relation to the
house?
A. Yes.
- Similarly,
Spiro’s wife Mary recalled learning that Marika had made a new
will:
Q. Then I think you’ve subsequently found out that someone had taken your
mother-in-law to change her will; is that right?
A. Correct. She said to me, “I’ve found someone who took me”,
and that was that. I didn’t ask who, when,
what, why. Nothing, what
changed, but she was quite elated, like, she was, like, you know, weight off
your shoulders happy. You know.
That’s - she had found someone to take
her.
- Both
of those witnesses gave evidence in a fashion which was unaffected and which I
found credible.
- In
short, I do not accept that the 1998 will left nothing to Marika. There is
overwhelming evidence that Rebeka was very concerned
about the threat posed by
Marika’s marriage and a claim upon any inheritance Marika might receive,
and that leads me to conclude
that the earlier will left more of Rebeka’s
estate to Marika than did the 2013 will. The relief that Rebeka conveyed after
she executed the 2013 will confirms this.
- I
further find that Jim was aware of this. His conceded awareness of his
mother’s fear goes far towards the conclusion that
Jim was aware that
under an existing will, Marika would receive a significant part of
Rebeka’s deceased estate. As was put
to him in cross-examination, if he
believed that Marika was not a beneficiary under the earlier will, there was no
basis (or at least
a much less well-founded basis) for his mother’s fear.
The circumstances in which the will was executed
- The
2013 will was evidently prepared and printed in Mr Coombes’ office. There
is no reason to doubt his recollection that there
were two conferences with the
client: the first to elicit her instructions, and the second to execute the
typed document. That accorded
with his usual practice, and is the obvious
inference to draw from the fact that the will had been prepared on a computer
but left
undated when Rebeka came to execute it. It is possible that there were
more than two meetings, but the will was straightforward so
that seems
unlikely.
- There
is no reason to doubt that before execution, the will was read out aloud, in
Greek, and that Rebeka executed it, in the presence
of the witnesses who
subscribed their names, one of whom was Mr Coombes.
- Mr
Coombes has retained the original will and the handwritten document signed by
the deceased. He has not retained a file. It is unclear
precisely what efforts
were made by anyone to obtain a diary, an appointments schedule, or records of
timing or billing from 2013,
and it is indeed possible that he provided the
service of drafting a straightforward will to a long-standing client for free.
- The
handwritten document is the only contemporaneous record of the deceased’s
instructions which precedes the will. Unfortunately
it is undated. What is also
not known is when the first meeting with Mr Coombes took place, and on what days
Mr Kakaroubas called
upon Rebeka: first when he prepared his document, and
second when he was told by Jim words to the effect that his assistance was
no
longer needed.
- As
it happens, quite a lot turns on the precise sequence of events in June, July
and August 2013.
The sequence of events in 2013
- I
find that there were two meetings with Mr Coombes, the second of which took
place on 20 August 2013 when the will was executed.
- I
accept the entirety of Mr Kakaroubas’ evidence. He was assisting a friend
of his mother, in a very personal matter, which
involved a division of her
estate after her death unequally between her children, the wedding of one of
whom he had recently attended
as a guest. The occasion was unusual and
intrinsically memorable, and there is no reason for his memory to have been
distorted by
time. I accept his evidence (as did his cross-examiner) that Rebeka
had told him, either then or at some later time, “I don’t
want Costa
and his children to take this house or my money”. I accept that the
production of the handwritten note occurred
in accordance with his evidence
– which involved him attending at the Australia St property twice having
taken instructions
from Rebeka on the first occasion, and returning with his
handwritten note later (my impression from his evidence was that this occurred
on the same day although that was not explicitly said). I also accept that at
some later stage he returned to Australia St where
he encountered not only
Rebeka, whom he had been expecting, but also Jim. I accept that Mr Kakaroubas
was surprised because he thought
he had been helping Rebeka in a matter in which
her children were not involved. I also accept that he has no precise
recollection
of whether Jim said “Thank you for your help, there’s
no need for further assistance” or “I’ll take
care of
things” (he acceded in cross-examination to questions to the effect that
Jim told him all those things, but I attribute
that to his manner of answering
questions, rather than accepting that all of those words were said). Mr
Kakaroubas was clear that
whatever the words used, Jim made it clear that his
role was complete.
- Evidently
Mr Kakaroubas’ first visits occurred before 20 August 2013. I find that
those visits occurred after Rebeka’s first appointment with Mr
Coombes.
- I
start with the objective evidence, which is not informed by any assessment of
any witness.
(1) The handwritten note is in English. Rebeka took some effort to have it made
in English. If she had wanted, when she first visited
Mr Coombes, a written
explanation for her instructions, it would have been easy for her to provide it
to him in Greek, and that would
not have required the involvement of a third
person. That is to say, I can see no good reason why Rebeka, in advance of her
first
meeting with Mr Coombes, would consider it necessary to prepare a document
in English.
(2) The handwritten note commences with the words “I Revika Deligiannis am
writing this letter to express my intentions regarding
my estate upon my
death”. That is the sort of language that a solicitor might use when
asking a client to provide in handwriting
the reasons for a will which treated
her children unequally. Conversely, it is an unlikely introduction to a letter
which was drafted
unprompted by her solicitor.
(3) There is a discrepancy between the handwritten document and the will. While
both provide an explanation for the diminished gift
to Marika by reason of her
inter vivas receipt of property, the handwritten note refers to Lakemba while
the will refers to Wiley
Park. If the handwritten note were provided at the
first meeting, then the reference to Lakemba must have been corrected at that
meeting in order for the will to refer to Wiley Park. If that is what happened,
it would be natural for the handwritten note to be
amended and initialled by
Marika so that it coincided with the will. While I think this is a consideration
of less weight than the
two mentioned above, the fact that the handwritten note
was unamended but nonetheless retained with the will also tends to suggest
that
it was provided at the second meeting.
- To
the foregoing may be added the fact that Mr Coombes gave evidence, which must be
regarded only as based upon his usual practice,
that the handwritten note would
have reflected an instruction given to clients to provide an explanation in
their handwriting for
any unequal division of their estates. That evidence is
inherently plausible.
- Finally,
there is the annotation made by Mr Coombes, “Prepared by a
neighbour!”. He was asked whether it reflected surprise,
which he denied.
The reasons for his annotation will never be known with certainty. He evidently
and unsurprisingly had no recollection
of it. But it is consistent with his
receiving a document at the second conference, which complied with a request
from him to provide
a handwritten explanation for the unequal distribution of
Rebeka’s estate, but which was, unexpectedly, not in the testatrix’s
handwriting nor in her language, but in English written by a neighbour, thereby
to an extent defeating the purpose of his request.
Mr Coombes may have thought
it was so obvious that it went without saying that when he told his client
(speaking in Greek) to return
with a handwritten note explaining the reasons for
her instructions that he intended for her to return with a document written in
Greek. However, Rebeka may have appreciated that the will would be in English
and wrongly understood the request to be to write out
that reasoning in English,
which she could not – perhaps to her embarrassment – do. A deal of
this paragraph is speculative,
and to be clear I regard it as of less weight
than the matters mentioned in the preceding two paragraphs. Such weight as it
has comes
from the fact that I cannot readily bring to mind any other
explanation for the annotation.
- Telling
against the foregoing is evidence from Jim that he first saw the note
when his mother took it from her handbag when he took her to Mr Coombes. In his
first substantive affidavit after his
claim to a grant was challenged by Marika,
he said:
During the first conference with Mr Coombes, I saw Mum take a document out of
her handbag and hand it to Mr Coombes. I had not seen
the document before she
pulled it out of her handbag but I have since seen a copy of it. When Mum took
the document out of her handbag,
I asked her what it was and she said words to
the effect “I told Fotti what I wanted in my Will. I told him what to
write down
for me and then I signed it.”
- An
important challenge to Jim’s credibility was made based on this evidence.
It is important first to identify what is not contentious.
For the reasons given
above, I am comfortably satisfied that the handwritten note was prepared
after the first conference with Mr Coombes and provided to him at the
second conference, which was when Jim saw it, and thus Jim was wrong
in his
affidavit to maintain that he saw it at the first conference. The fact that he
recalled this was the first conference is an
error, but it is an understandable
error which is neither here nor there.
- The
important question of credit relates to whether the second conference with Mr
Coombes preceded or followed the second meeting
with Mr Kakaroubas. If Mr
Kakaroubas’ second visit preceded the execution of the will, then
Jim’s evidence concerning his first seeing the handwritten note when his
mother pulled it from
her handbag was incorrect. This is very different from a
mistake as to whether he saw it at the first or second conference with Mr
Coombes. It is one thing to appreciate after the event that Mr Kakaroubas had
assisted with his mother’s will; it is another
thing entirely to know that
before the will was executed, and in all likelihood to know what his
mother’s instructions were.
If Mr Kakaroubas’ second visit was
after the execution of the will, then the evident sense of the
conversations recalled by him would naturally cohere with what had occurred:
the
occasion for the note had passed, and he was thanked for his help which was no
longer needed.
- It
is impossible to say what distance in time separated the two appointments with
Mr Coombes, or the two visits by Mr Kakaroubas.
There was no evidence which
directly bore upon the former. As for the latter, Mr Kakaroubas said “I
couldn’t give you
a timeframe”, and in answer to the question
“within a couple of days, a week or so, thereabouts?” he said
“it
could have been a month or two. I – I just couldn’t tell
you”.
- I
conclude that it is likely that Mr Kakaroubas’ second visit followed the
execution of the will. I draw that conclusion from
two things. The first is that
Rebeka was agitated about the need to make a will. When she first called upon Mr
Coombes is not known,
but the will she gave instructions to draft was a simple
one, which could be prepared in a matter of minutes, and there is nothing
to
suggest that there would have been any lengthy delay between that occasion and
20 August 2013. To the contrary, the probabilities
are that Rebeka would have
wanted to execute the will promptly, and would have pushed back if, say, Mr
Coombes had proposed a second
appointment a month after the first.
- The
second is that Mr Kakaroubas resisted the suggestion that these two visits were
only a matter of days or a week or so apart. While
he was at pains to make clear
that his recollection was imperfect, he suggested that his visits could have
been separated by a month
or two.
- Those
two circumstances make it unlikely that Mr Kakaroubas’ second visit
preceded the execution of the will. It is not necessary
for me to make a finding
on the point. It is sufficient for me to conclude that I am not satisfied that
Mr Kakaroubas’ second
visit preceded the execution of the will.
Accordingly the attack on Jim’s credit, insofar as it is based on his
being aware
of the handwritten note before his mother took it from her handbag
at Mr Coombes’ office, is not well-founded.
- I
conclude that the most likely sequence of events is (a) Rebeka meets with Mr
Coombes and instructs him as to her will, (b) Rebeka
meets with and obtains a
handwritten note from Mr Kakaroubas, (c) Rebeka meets with Mr Coombes again and
executes her will, and (d)
Rebeka and Jim meet with Mr Kakaroubas.
- I
return to the balance of Jim’s evidence. He is a plumber, who speaks
fluent, colloquial English. His answers were direct,
in large measure acceding
to propositions put to him. My impression was that he was often not conscious of
some of the nuance in
the questions he was asked. It is possible that he was a
gifted liar, but I think he was trying to answer questions. That is not
merely
my general impression, but it is informed by the fact that he made concessions
against interest, for example that his mother
was concerned about “the
Canberrans” and that he was aware of her concern and responded to it.
There were times when
Jim refused to make concessions called for by the
cross-examiner, but I consider that at those occasions witness and counsel were
at cross-purposes rather than Jim wilfully declining to answer to the best of
his recollection.
- Insofar
as an attack was made on Jim’s credit, I reject it. That is not to say
that I accept his testimonial evidence without
qualification; the opposite is
true, for it is susceptible to the same deficiencies caused by the passage of
many years, the litigation
process and perceived self-interest as most other
witnesses. Ultimately most of the critical facts in this litigation derive from
documents and other witnesses. Indeed, as the case concluded, I doubt that
anything turns on my assessment of Jim’s credibility.
The
accuracy of clause 4 of the 2013 will
- Marika
sought to make something of the textual discrepancy between Wiley Park and
Lakemba in the handwritten note and the will. More
substantively, she also
sought to make something of what was said to be the basic error on the face of
the will, namely, that Marika
did not receive Wiley Park from her mother. I do
not accept these submissions.
- There
was some evidence that Rebeka more naturally referred to the location as Lakemba
rather than Wiley Park. Jim at one stage said
that “if you said Lakemba to
my mother or Wiley Park to my mother, it was the same thing to her” and
although that evidence
was volunteered, it is not implausible. Wiley Park is a
suburb and has a train station, between Belmore and Punchbowl, but it has
little
by way of shops compared to the neighbouring suburbs. I have lived in Sydney for
most of my life and I am certain that Lakemba
is better known than Wiley Park.
Counsel’s submission in this respect was appropriately muted:
We candidly accept that Rebeka may have been mistaken or confused about whether
Wiley Park was Lakemba, or Lakemba was Wiley Park.
However, it shouldn’t
be forgotten that in the mix of property transactions, there was actually a
transaction with respect
to a separate property in a separate suburb at
Lakemba.
And so, there is in our submission a question around whether or not the
reference to “Maria has received the unit at Lakemba”
is a reference
to the Wiley Park unit, or this is the mother saying, she - Maria - received the
unit at Lakemba. That is to say,
the unit at Lakemba that Spiro used to own.
- I
agree with the approach taken by counsel. The discrepancy between Wiley Park and
Lakemba is a distraction. The substantive point
is whether Marika received
property in Rebeka’s lifetime.
- Marika
did receive ownership of Wiley Park. She did so on the basis that she
contributed a small fraction of the deposit ($500). The
balance of the purchase
price came from Spiro and money borrowed by her and Spiro from the bank. Four
years later, Spiro gave her
his half of the property, and she appears to have
assumed sole responsibility for the mortgage. The upshot is that she obtained
ownership
of a unit after contributing $500 of capital and assuming the
obligation to repay mortgage debt. It is accepted that she obtained
the sole
benefit of rent received on the property.
- On
any view of the matter, Wiley Park was in substance a gift to Marika. Who made
the gift? I think it is tolerably clear that it
was treated as a gift from
Rebeka. On 20 March 1992, Rebeka gave Belmore to Spiro, which was valued for
stamp duty at $140,000, and
on the same day he relinquished his half interest in
Wiley Park to Marika, valued for stamp duty at $62,500. The critical jural acts
were the signatures of Rebeka and Spiro on each memorandum of transfer. By their
signatures, Spiro obtained an interest in the entirety
of Belmore, and released
his half interest in Wiley Park to his sister. The result was that Spiro became
the sole owner of Belmore
valued at $140,000, and Marika became the sole owner
of Wiley Park valued at $125,000.
- On
any view of the matter, the transactions dated 20 March 1992 must be viewed
together. They occurred on the same day, and most probably
at the same place
– in Mr Coombes’ office, for he was the witness. Spiro was given
Belmore, but on the basis that he
would relinquish his half share of Wiley Park.
Although Marika’s ownership in Wiley Park was acquired by her purchase as
a
co-owner in 1988 followed by the transfer from Spiro in 1992, the substance of
the matter is that the gift by Spiro to her was intrinsically
linked to the gift
of Belmore by Rebeka to Spiro. As it happens, there is approximate equality in
the consideration stated for stamp
duty purposes insofar as the net wealth of
each of Spiro and Marika increased by about the same amount. (Spiro obtained a
property
valued at $140,000 but surrendered his 50% interest in a property
valued at $125,000, which is to say a net gain of $77,500, while
Marika gained a
half interest in a property valued at $125,000, which is to say a net gain of
$62,500.) The evidence is silent as
to who paid the stamp duty and other
transaction costs.
- Another
way of putting this is that by the two transactions effected on 20 March 1992,
Rebeka ceased to have beneficial ownership
of land worth $140,000, while
Spiro’s net worth increased by $77,500 and Marika’s net worth
increased by $62,500. In
substance, the mother’s gift brought about a
roughly equal increase in the wealth of her two older children.
- I
do not accept that the will was inaccurate. In substance, Marika had received
property during her lifetime from Rebeka. The fact
that the receipt came by way
of Spiro relinquishing his half interest in Wiley Park on the day that he was
given Belmore does not
make either the words in the will, or in the handwritten
note, incorrect. That is not to say that the stated reason was the entirety
of
Rebeka’s reasons. As will be explained below, I am unpersuaded that it
was.
Did Rebeka have capacity to execute her will, and did she
know and approve it?
Principles
- The
requirements of “capacity” and “knowledge and approval”
are distinct, although it is self-evident that
the same evidence may bear both
upon whether a testatrix understood the nature of the act of making a will, the
property which was
its subject, and the claims of potential beneficiaries, and
whether the testatrix appreciated the contents of a will and its effect.
- Capacity
is often associated with what was said in Banks v Goodfellow (1870) LR 5
QB 549, although it is tolerably clear that at least some of the language
(notably, the disentitling factors of “disorder[s] of the
mind” and
“insane delusions”) are inapt today: Carr v Homersham (2018)
97 NSWLR 328; [2018] NSWCA 65 at [6], [130]-[134], although they reflected what
at the time may have been the latest state of science. Further, there is, as
Basten JA
explained in Carr v Homersham at [7]-[11], some imprecision in
describing the conventional three positive elements of the test in terms of
“capacity”.
An understanding of what a will does and of the property
likely to be disposed of by the will is qualitatively different from a knowledge
and understanding of the persons who have claims upon the bounty of the
testatrix.
- “Knowledge
and approval” is also, upon examination, more complicated than it may
appear. The requirement emerged in England
from a combination of judgments and
procedural changes in the second half of the nineteenth century which became
incorporated into
New South Wales law, which I sought to explain in Lewis v
Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [130]- [136]. In some cases
there may be a significant difference between knowledge and approval of the
words used in a will and their effect,
a point well illustrated by Lewis v
Lewis. But that is not the case for this simple will.
- The
simpler the will, the easier it will be to establish both capacity and knowledge
and approval. In respect of capacity, White JA
explained in Croft v
Sanders [2019] NSWCA 303 at [126]:
Capacity to make a will is to be assessed having regard to the particular will
made. While the test of capacity remains the same,
the application of that test
will vary according to the complexity and the officiousness or inofficiousness
of the will (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570-571; [1924] HCA 21;
Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of
Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme
Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342) at
42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis
[13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright
[1954] HCA 17; (1954) 91 CLR 423 at 438; [1954] HCA 17; the mental capacity required in respect
of any instrument is relevant to the particular transaction which is being
effected by means
of the instrument.
- A
recent endorsement is found in Lim v Lim [2023] NSWCA 84 at [9]- [10].
- Similarly,
the simpler the will, the more readily will it be concluded that the testatrix
knew and understood it: see for example
Chalik v Chalik [2024] NSWSC 117
at [250]; Lim v Lim at [10].
- For
completeness I note (although I did not understand a submission to be made to
this effect) that even if the will appears to be
harsh, or unjust, that does not
of itself point against capacity. Gleeson CJ explained in Re Estate of
Griffith (1995) 217 ALR 284 at 291:
[T]here may be cases in which one person’s estimation of another’s
claims may seem harsh and unwarranted, and perhaps
even unnatural, but it is
impossible to assign a reason for that, or to point to any false belief.
Testamentary capacity is not reserved
for people who are wise, or fair, or
reasonable, or whose values conform to generally accepted community standards. A
person may
disinherit a child for reasons that would shock the conscience of
most ordinary members of the community, but that does not make
the will invalid.
- I
am conscious that the circumstances attending the making of this will are not
entirely free from concern, and I shall apply what
was said by Meagher JA in
Tobin v Ezekiel at [47] that:
Particular vigilance is required where a person who played a part in the
preparation of the will takes a substantial benefit under
it. In those
circumstances it is said that such a person has the onus of showing the
righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v
Painton at 160. That requires that it be affirmatively established that the
testator knew the contents of the will and appreciated the effect
of what he or
she was doing so that it can be said that the will contains the real intention
and reflects the true will of the testator:
Tyrrell v Painton at 157,
160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ
1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at
[32], [42].
- Let
it be assumed, favourably to Marika, that Jim played a part in the preparation
of the will. He acceded in cross-examination to
the proposition that he
discussed with his mother the possibility of a claim by Costa against any
inheritance Marika might receive
from her mother, particularly in circumstances
where Marika and Costa made Australia St their post-nuptial home.
- Even
so, I am comfortably satisfied that Rebeka had capacity and knew the contents of
her will and its effect.
Evidence going to capacity
- There
was some evidence of Rebeka’s cognitive deficits in 2013. The evidence
post-dated the execution of the 2013 will, but
of course that did not prevent it
being used to support the conclusion that the deficits were previously in
existence. Marika gave
evidence of an occasion after her honeymoon, in September
2013, when she said “Can you believe that I don’t remember
anything
from your wedding”. Marika also recalled an occasion in November or
December 2013 when her mother told her that she
had become disoriented while
returning home from Newtown to Australia St in Newtown Memorial Park, a park
which she had walked past
or through on hundreds of occasions. Marika also gave
generalised evidence of an earlier decline.
- It
was said in final address, correctly, that it was an “astonishing”
thing that an event so significant as the wedding
of a mother’s only
daughter could have been forgotten so soon afterwards. The same is true of
becoming disoriented in a park
near where she had lived for many decades.
However, telling against the force of that submission is the fact that it was
not suggested
that any immediate steps were taken to have Rebeka examined by a
general practitioner or a specialist. An occasional moment of disorientation
or
memory loss does not of itself deny testamentary capacity. The evidence before
me was that she was first diagnosed with dementia
in around June 2015.
- A
great deal of objective evidence tells against any serious cognitive deficiency
in August 2013. Some of this turns on the fact that
other family members’
conduct, including Marika’s, is inconsistent with Rebeka suffering from
loss of her faculties as
early as August 2013. That evidence included the facts
that:
(1) Marika lived at Jim’s house for 6 weeks in 2014, and although Marika
visited her mother every day, Rebeka was living at
home independently by
herself;
(2) Marika travelled to Canberra to visit her husband’s family in 2015 and
2016;
(3) Marika’s evidence that from either 2016 or 2017 it became impossible
for Marika and her husband to leave home without somebody
staying with her
mother;
(4) Marika applied for, and obtained, a carer’s pension in 2017 (rather
than earlier);
(5) There is also the fact that Marika found out about the 2013 will in 2016 in
circumstances where she had suggested that the will
might need to be updated, to
include her niece.
- There
is also direct evidence of Rebeka’s capacity, derived from the way in
which the will was prepared. It is clear that Rebeka
gave the same instructions
to Mr Kakaroubas as she had previously given to Mr Coombes. She was alone with
those men when the instructions
were given, and they could only have come from
her. Only Mr Kakaroubas has any recollection of the meeting in 2013, but there
was
nothing in his evidence to suggest that she was unaware of the nature of her
estate (essentially, her house) or those with claims
upon it (the three children
each of whom was named in the handwritten letter). The will correctly records
that Spiro and Marika had
already received a gift of real property during their
lives from her, and in so doing records the three people who had the most
substantial
claims upon her bounty.
- To
reiterate: the will was simple, it is perfectly plain that Rebeka knew the
significance of a will and the nature of her estate,
and it identified on its
face the persons with claims upon her bounty. I am satisfied that Rebeka had
capacity to make the 2013 will.
Evidence going to knowledge and
approval
- Turning
to knowledge and approval, the evidence summarised above, coupled with the
simplicity of the will, is relevant.
- The
evidence is absolutely clear that on four separate occasions Rebeka confirmed
her intention that 75% of her estate go to Jim and
25% go to Marika: on two
separate occasions, separated by some days, to Mr Coombes, and on two occasions
on the same day to Mr Kakaroubas.
As was emphasised in Jim’s closing
submissions, that must be so irrespective of the order of events. It is powerful
evidence
that the testatrix knew precisely what was the effect of a very simple
will disposing of a very simple estate.
- The
gravamen of the challenge to knowledge and approval was that the will wrongly
recorded that Marika had received property during
her lifetime. For the reasons
already given, I disagree. What was recorded in the will was
correct.
Undue influence
- The
applicable principles were recently considered in Schwanke v Alexakis;
Camilleri v Alexakis. They need not be restated here. While Marika’s
claim for undue influence was advanced in the written submissions served prior
to the trial, it was not developed in closing submissions. That was an
appropriate course to take, in light of what emerged from
the cross-examination
of Jim and Mr Kakaroubas. This claim is not established, and can be dealt with
concisely.
- It
was put in writing that Jim exerted undue influence over his mother when he
arranged to take her to see Mr Coombes in 2013, when
Marika was away, and
without informing Spiro or Marika about this, in circumstances where the 2013
will represented a significant
change to Rebeka’s testamentary intentions.
I accept that Jim took Rebeka to Mr Coombes, twice, when Marika was away, and
did
not inform Marika about it, and I accept that the 2013 will significantly
altered the disposition of Rebeka’s estate. But that
alone is insufficient
to establish undue influence.
- I
am satisfied that Rebeka had capacity, and knew perfectly well what she was
doing when altering her will. Both of her older children
had in fact received
advances in the form of property during her lifetime, on 20 March 1992, and Jim
had received no parcel of land.
I am unpersuaded that this is a case where Jim
preyed upon his mother creating the sense of anxiety she felt prior to making
the
new will.
- Jim
was pressed in cross-examination for why he did not tell his sister of the fact
that his mother had changed her will. His answer
was that it was his
mother’s will. That is inherently plausible. I accept that his answer
represented the best of his recollection.
His mother and sister lived together.
Evidently Rebeka did not wish to tell her daughter that she had changed her
will. In those
circumstances, far from there being any obligation upon him to do
so, I think it would have been wrong for him to do so – just
as it would
have been wrong for Mr Kakaroubas to do so.
- It
was also put to Jim that he contributed to his mother’s fear concerning
“the Canberrans”. I accept that he responded
to his mother’s
concerns on that issue and that he was aware that she was upset by this, but I
do not accept that his conduct
contributed in any material way to her decision
to amend her will.
- There
is another matter which bears on this issue. There was ample evidence that
Rebeka had said repeatedly that Belmore went to Spiro,
Wiley Park/Lakemba went
to Marika, and Camperdown was to go to Jim. If Jim in fact exercised undue
influence upon his mother, why
not procure her to make a will which left the
entirety of the estate, rather than 75% of the estate, to him? It is far from
unknown
for daughters to be wholly excluded from a parent’s will; a recent
example is Kouroutis v Kouroutis [2023] NSWSC 608.
- For
those reasons, Rebeka’s 2013 will should be admitted to probate. It is
therefore necessary to address her claim for an order
for family
provision.
Marika’s family provision claim
- The
threshold issue under s 59(1)(c) of the Succession Act is whether the
Court is satisfied that adequate provision for the proper maintenance, education
or advancement in life has not been
made by the will for Marika. The Court is
entitled, by reason of s 60, in determining whether to make an order and if so
its nature, to have regard to a wide range of matters identified in s 60(2),
which include in s 60(2)(j) “any evidence of the testamentary
intentions of the deceased person, including evidence of statements made by the
deceased
person”.
Written submissions
- Marika
invited the Court to have regard to the facts that she was Rebeka’s
primary carer and long-time companion, that she had
lived in Australia St for
her entire life until leaving earlier this year, that she lived with Rebeka
until Rebeka moved into a full-time
care facility in June 2020, aged around 82.
She pointed to the fact that for some 15 years, between 1999 and 2013, Rebeka
and Marika
lived together, Spiro and Jim having married and moved out of
Australia St, during which period they had dinner almost every weeknight,
and
would share most meals on weekends, and that she felt obliged to stay with
Rebeka because their lives were so intertwined and
because Rebeka depended on
her for companionship. Marika said that she contributed to the day-to-day costs
of Australia St, thus
enabling Rebeka, funded by an old age pension to maintain
her lifestyle and to continue living there. Even after Marika’s marriage,
she continued to live at Australia St, on the basis that:
I did not feel that I could leave my Mum once I got married. By this stage Mum
depended on me for her day-to-day needs, financially
to meet the expenses of
living at home and the maintenance of the Camperdown House. I believe that she
also depended on me emotionally
for companionship.
- In
cross-examination, Marika emphasised this: “how could I leave her after
all these years when she needed me the most”.
- After
Rebeka was diagnosed with dementia in 2015, Marika said she was dedicated to her
care until she went to an aged care facility.
This included cooking, dressing
Rebeka and assisting her with toileting. Her evidence was that she stopped going
out with her husband
and seeing her friends so as to avoid leaving her mother
alone at home. She said that “I effectively had no social life and
became
her full-time carer”. When Rebeka moved into full time residential care,
Marika visited her daily, subject to Covid
restrictions.
- Marika
suffers from a number of health conditions. She has a weak left leg which
prevents her from walking stairs, a consequence of
an infection after a cyst was
removed from her leg in 2021. She has diabetes and high-blood pressure for which
she is medicated.
She also suffers from macular degeneration which requires
monthly injections in her eyes (at a cost of $800 per month, $400 after
government rebate), which regularly prevents her from working.
- Marika’s
income is modest, especially in comparison with Jim. Her monthly after-tax
income is around $4,060. She owns Wiley
Park, but it is worth around $380,000 to
$450,000, and is subject to debt of around $270,000 secured by a mortgage.
Marika says that
her financial position is partly due to the financial
sacrifices she made in order to care for Rebeka. She said that from 2017 she
dropped her work back to 4 days each week so that she could care for Rebeka, and
that she paid for much of the upkeep of Australia
St and for Rebeka’s
day-to-day needs. She said that Marika and Rebeka had split the household
expenses since 1999.
- Marika’s
husband Costa, is also of modest financial means. His monthly net income (after
tax) is approximately $3,200 and he
owns no real estate. After leaving Australia
St, the couple live in temporary accommodation.
- In
contrast, the assets of Jim and his wife are in the order of $3.5 million,
principally their home, which has a small mortgage (it
is valued at $3,125,000,
with debt of $272,500) and a share of an inheritance in the order of $700,000
which his wife has recently
received.
- Jim
pointed to his own relationship with his mother, his contributions to the
maintenance of the property, and importantly the fact
that he was the only child
not to receive real estate, directly or indirectly, from his parents. Referring
to the preferences expressed
by (among others) White JA and Brereton JA
concerning the utility of “moral duty” as opposed to
“community standards”
in Steinmetz v Shannon (2019) 99 NSWLR
687; [2019] NSWCA 114 at [40] and [109], he submitted that in order to succeed,
Marika needed to show that Rebeka, when she left 25% of her estate to Marika,
failed
in her moral duty, and that in all the circumstances she had a moral duty
to provide her with something more. He submitted that in
light of the gift
during Rebeka’s life, and the family circumstances, a 75:25 division was
within the range of provision that
a testator might be expected to make for
Marika. He invoked the deference to the testatrix’s intentions in light of
the limited
evidence which is invariably available at trial, as expressed by
White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013]
NSWSC 522 at [127]:
In my view, respect should be given to a capable testator’s judgment as to
who should benefit from the estate if it can be
seen that the testator has duly
considered the claims on the estate. That is not to deny that s 59 of the
Succession Act interferes with the freedom of testamentary disposition.
Plainly it does, and courts have a duty to interfere with the will if the
provision made for an eligible applicant is less than adequate for his or her
proper maintenance and advancement in life. But it
must be acknowledged that the
evidence that can be presented after the testator’s death is necessarily
inadequate. Typically,
as in this case, there can be no or only limited
contradiction of the applicant’s evidence as to his or her relationship
and
dealings with the deceased. The deceased will have been in a better position
to determine what provision for a claimant's maintenance
and advancement in life
is proper than will be a court called on to determine that question months or
years after the deceased's
death when the person best able to give evidence on
that question is no longer alive. Accordingly, if the deceased was capable of
giving due consideration to that question and did so, considerable weight should
be given to the testator's testamentary wishes in
recognition of the better
position in which the deceased was placed: Stott v Cook (1960) 33 ALJR
447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at
[136]. This is subject to the qualification that the court’s determination
under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at
the time the court is considering the application, rather than at the time of
the deceased’s death or will.
- Jim
also relied on what was said in Sgro v Thompson [2017] NSWCA 326, where
the Court of Appeal overturned a decision to make an order of family provision
in favour of a daughter who had received nothing
from an estate the only
substantial asset in which was a residential property left in favour of the
other daughter. Both daughters
had good relations with their mother, but the
plaintiff daughter had received an “early inheritance” in the form
of an
unencumbered gift of property at around the time she had married. White
JA, who delivered the leading judgment of the Court of Appeal,
said,
dispositively, at [76]-[79]:
However, in my view the primary judge did err in principle in his assessment of
the significance of Rosa’s having been given
the Merrylands property in
1985 as her early inheritance. There is no doubt that the primary judge took
that transaction into account
as one of the material considerations. His Honour
did so in considering the provision made for the applicant by the deceased
during
the deceased’s lifetime (at [102] referred to at [56] above) and as
evidence of the deceased’s testamentary intentions
(at [106]-[108]
referred to at [57] above). In the section of his reasons headed
“DETERMINATION” the primary judge referred
to the deceased’s
having made generous provision for Rosa during her lifetime by, amongst other
things, giving her an unencumbered
house (at [130] referred to at [60] above).
His Honour then went on to say that the level of provision made during the
lifetime of
the deceased could not alone determine what was proper on the
deceased’s death, albeit it was one of the matters to be taken
into
account in determining what is “proper”.
But in considering Carmela’s competing claim on the estate, the primary
judge said (at [133]) that:
“Her competing claim is not founded upon any competing financial need, but
on her contributions to the deceased, both financially
and in other ways, during
the deceased’s declining years.”
Carmela’s competing claim was not founded only on her contributions to the
deceased during the deceased’s declining years.
Fundamentally, it was
founded upon what all members of the family recognised as her moral claim to the
Greystanes property upon her
parents’ death because her sister had
received an early inheritance of the Merrylands property.
Moreover, the deceased and her then husband specifically considered in 2007
whether the passage of time and the changes in their
children’s
circumstances meant that they should change their existing wills to give further
provision to Rosa. They decided
that would be inappropriate because “it
has always been one house each and Rosa has already had hers”. The
deceased confirmed
that position by her will made on 16 August 2010.
- White
JA thereafter gave emphasis to a familiar line of authorities on the deference
to be accorded by courts to wills made by capable
testators. He cited a passage
from McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 580; [1957] HCA 82 which
had been approved by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191;
[2005] HCA 11 at [24]:
This is the kind of case in which it would be much more pleasant to be
open-handed with the testator's estate than to confine oneself
to the
jurisdiction under the Act. But even if I felt sure that I understood the whole
situation so well that I could deal with the
estate more justly than the
testator dealt with it, I should still not feel justified in asserting that when
he decided to give the
respondent no more than he had already given him, and to
leave his estate to members of the family who had been closer to him and
to whom
he had his own reasons for being generous, he failed to recognise a moral duty
which lay upon him.
- White
JA also referred to Dixon CJ’s statement in Pontifical Society for the
Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 20; [1962] HCA 19
(“The difficulty is that the Court itself can never be certain that it
knows all the circumstances. More often than not, one
may be sure that the Court
knows few of them”), to a similar statement by Taylor J in Stott v Cook
(1960) 33 ALJR 447 and to the passage in Slack v Rogan; Palffy v Rogan
reproduced above, and added at [86]:
I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To
recognise that the court is not in as good a position as a capable testator to
assess what maintenance or advancement in life
is proper for an applicant having
regard to all of a family’s circumstances, including the relationships
between the applicant
and the deceased, and the merits and claims of other
family members, is not to put a gloss on the statute. Rather, it is to
acknowledge
the superior position of the testator. The most important word in s
59(1)(c) is “proper”. Until the court has identified
what is proper
maintenance, education and advancement in life for an applicant, it cannot
assess whether the provision made, if any,
is adequate. What is proper requires
an evaluative judgment that has regard to all relevant circumstances, not merely
the parties’
financial circumstances. Whilst the court will know the
latter, it will only have an incomplete picture of the former. Of course,
the
court’s assessment of what is proper maintenance, education and
advancement in life must be made when the court is considering
the application.
That does not mean that considerable weight should not be given to the
assessment of a capable testator or testatrix
who has given due consideration to
the claims on his or her estate. .
- The
following passage at [93]-[95] is also apposite:
I do not know, and there is no means of discerning, what the
“community’s expectation” would be as to the deceased’s
moral obligation. I see no reason to conclude that the deceased did not act as a
wise and just testatrix in weighing the competing
claims of both her daughters
on her estate, having regard to Rosa’s early inheritance and the
family’s understanding
as to the consequences of that early inheritance.
Mr Tregenza submitted that the gift to Rosa more than 30 years ago had much less
significance than an equivalent recent gift would have had. He submitted that
the significance of the gift diminished over time.
Whether that is so or not
would depend upon the family’s circumstances about which the deceased and
her husband were in a superior
position than the court to make a judgment. It
may be that the Merrylands property was more valuable than the Greystanes
property.
Carmela deposed (without objection) that that was so, but she had no
qualification to express that opinion. A wise and just testator
might well
consider that Carmela should not be disadvantaged because Rosa did not take
financial advantage of the opportunity offered
to her. That was evidently the
view the deceased and her husband took in 2007 and which the deceased repeated
in her will of 16 August
2010.
There appears to have been no significant deterioration in Rosa’s
financial circumstances after the deceased’s death,
or, for that matter,
after she made her will. Rosa’s financial circumstances were marked by
increasing levels of debt as she
embarked on unsuccessful investments or
borrowed to service her lifestyle choices. Although the details of Rosa’s
financial
circumstances undoubtedly changed up to the time of the hearing, it
was not suggested that there was a change in kind rather than
of degree.
The deceased’s moral obligation to Carmela is not determinative (Vigolo
v Bostin at [123] per Callinan and Heydon JJ). Rosa’s competing claim
based on financial need must still be evaluated. But giving the
respect that I
consider is due to the deceased’s consideration of the competing claims of
her daughters I do not think that
Rosa has been given less than adequate
provision for her proper maintenance and advancement in life, even though that
provision is
now effectively nil.
Oral submissions
- Marika’s
oral submissions in support of her claim for a family provision order, described
aptly as her “back-up case”
were brief, occupying two pages of
transcript (pp 220-1). Making the assumption that both sides’ costs would
come out of the
estate (and very properly recognising that there might be a
debate about that), the net estate was just around $2,060,000, such that
25% was
some $520,000. It was said that that was not adequate provision, because the
value of Marika’s assets was small, that
insofar as those assets included
a modest amount of superannuation, she did not presently have access to it, that
the capital available
to her did not permit her to buy a modest house in Sydney,
and that acquiring a house in Canberra would exhaust the resources available
to
her leaving her with no cushion for contingencies which were potentially
significant having regard to the medical conditions from
which she suffered. In
contrast, Jim’s assets were so substantial that they could be
disregarded.
- Jim’s
oral submissions were also concise. He emphasised that Marika had not put
forward evidence about what she wanted in order
to support a claim of more than
25% of the estate, that she could if she wished live in the Wiley Park flat and
have a contingency
fund left over after discharging the mortgage. Jim said that
if she sought provision for accommodation purposes, it was incumbent
upon Marika
to have put forward evidence as to the type of accommodation she ought to have,
the reasons for it, an estimate of how
much it would cost, and some evidence as
to properties of that nature available for purchase. Even if Marika did not wish
to live
in Wiley Park, she was able to acquire a home in the ACT, near her
husband’s family, and advertisements were tendered stating
that suitable
properties were available with asking prices of $700,000 plus, and $750,000
plus. He also said that there was no evidence
of her husband’s bank
balance or superannuation.
- The
parties joined issue as to the relevance of there being two reasons for
Rebeka’s will: the fact that Marika had received
real property during her
lifetime and the concern that Marika’s husband or his family might end up
with property. Jim said
that both reasons were rational, and invoked the
reasoning in Sgro. On the other hand, Marika maintained that the fear
which motivated Rebeka had the effect of punishing her daughter for getting
married,
and had the testatrix actually thought about that, then things might
have been done very differently.
Consideration
- I
accept that Marika had a very close relationship with her mother, closer than
any of Rebeka’s other children, and which involved
a much longer period of
time sharing a household with her, and that Marika cared for Rebeka in her final
years. I also accept all
of Marika’s evidence about her medical
conditions.
- However,
I also accept that Marika, like Spiro but unlike Jim, had received real estate
during Rebeka’s lifetime. For the reasons
earlier given, in substance this
culminated in Marika’s gift on 20 March 1992. For the ensuing three
decades, Marika had enjoyed
the benefit of ownership of the Wiley Park flat, for
which putting to one side funding the mortgage had cost her $500.
- I
do not accept everything said on her behalf concerning her own contribution to
Rebeka’s daily financial needs.
- As
Marika conceded in cross-examination, at least in some small respects, she used
funds in Rebeka’s bank account for her own
personal expenses. Marika
accepted that tobacco purchases recorded as EFTPOS transactions in her
mother’s bank account on 26
September 2018 of $87.90 and 17 June
2019 of $32.95 were for her own personal use. It seems probable that a purchase
of $475.09 from Dan Murphy’s on
24 December 2018 falls into the same
category.
- Further,
it is not correct to say, as appears in paragraph 65(d) of Marika’s
affidavit sworn 10 May 2023, that:
From the time that Mum moved into the day-care facility (in 2017), I have paid
for all expenses relating to the Camperdown House.
My Mum did not contribute to
anything as her old age pension was being used to pay for the day-care facility
(from 2017) and the
nursing home (from 2020).
- Those
propositions were tested in cross-examination, and Marika made appropriate
concessions. What follows is more elaborate, based
on an audit of what occurred
in the first half of 2018 and the first half of 2020.
- In
2018, Rebeka was living for the most part at Australia St, but spending many
days and some nights at a care centre run by “Uniting”
at Petersham.
According to a fee statement, Rebeka spent 4 nights and 19 days in January, 11
nights and 11 days in February, 5 nights
and 18 days in March, 2 nights and 21
days in April, 24 days in May and 21 days in June 2018, the cost of which was
$947 + $1243
+ $1394 + $1048 + $792 + $693 = $6117 (Jim’s affidavit of 1
August, pp 5-6). Over that period, Rebeka’s pension was $894.40
per
fortnight, rising to $907.60 per fortnight in April, with the deposits of
pension and withdrawals to Uniting coming out of Rebeka’s
account. The
balance in the account remained stable (it commenced at $5940.90 and ended at
$5298.65), and it may be noted that in
addition to payments to Uniting were
regular payments to the Inner West Council (presumably for rates) ($411.58 on
13.3.18 and $410.25
on 31.5.18), Sydney Water ($188.25 on 13.3.18 and $157.65
on 31.5.18) and EnergyAustralia ($309.75 on 12.2.18, $146.96 on 13.3.18
and
$294.02 on 31.5.18), There are also cash withdrawals from the account of $450,
$250, $200, $800 and $200 in the same six months.
- In
fact, in the six month period summarised above, almost $2,000 was paid by Rebeka
for expenses which on their face relate to the
home in Australia St, and a
further sum of almost $2,000 in cash was withdrawn (some or all of which, of
course, may have been used
for expenses which benefited Rebeka).
- I
have undertaken the same exercise for the first six months of 2020.
Rebeka’s account commenced that period with a balance
of $5376.39 and
ended the period with a balance of $4729.14. There were fortnightly deposits of
$933.40 increasing to $944.30 by
way of pension, plus a Covid-related payment of
$750 on 8 April 2020. The nursing home charged $58.25 per day (a basic fee of
$52.25
plus an addition $6 daily fee for extra services including Foxtel) and
all those payments were made from the account. In addition,
there were numerous
payments to the Council, Sydney Water, EnergyAustralia, totalling in all $975
throughout that 6 month period,
as well as some small EFTPOS transactions at
Woolworths (14 April) IGA, Coles (both on 16 April), Aldi (on 27 April), a
butcher (on
25 May).
- Marika’s
response when asked about withdrawals from her mother’s account which on
their face benefited her (such as purchases
from a tobacconist) was, repeatedly,
to say “Contra”. She gave this explanation of her meaning:
Q. What do you mean when you say it’s a contra?
A. Everything my mother ever needed, if I took everything from her bank account
from a woman that earns $400 a fortnight - a week,
like I said, there were - if
I paid for something, I think, “Okay, I’ll pay with mum’s
account”, and it contra-ed
itself out. My - I always, always looked after
my mother.
- It
is not my purpose to be overly critical. Over this period of time, Marika was
very substantially responsible for her mother. I
accept her evidence that no
relative spent anything like the time Marika spent with Rebeka, and one could
well understand a minor
portion of Rebeka’s money being spent by Marika
for her own purposes. The present is the opposite of the case that is sadly
but
not uncommonly seen in this court where an elderly relative’s bank account
is run down by someone with control of it (cf
Katsoulas v Kritikakis;
Katsoulas v Apostolatos [2024] NSWSC 67). The only purpose of the foregoing
analyses is to dispel the notion which might be derived from Marika’s
evidence that she was
obliged to spend her own funds to maintain utilities and
rates for Australia St while her mother was largely or wholly absent. To
the
contrary, Rebeka’s pension proved to be sufficient to pay not only for her
accommodation in care, but also for the ownership
expenses of Australia St.
- I
am bound by Sgro and (for what it is worth) I respectfully agree with the
force of the reasoning that the parties’ forensic decisions inevitably
leave the court in a much less advantaged position than the competent testator.
I have concluded that in August 2013 Rebeka was a
competent testatrix. The
reasons given in her will are accurate. It is no small thing to interfere with
the testamentary wishes of
a capable testatrix.
- It
is necessary to place in context the value of the gift of Wiley Park in 1988 and
1992. True it is that it is a two bedroom apartment,
as opposed to the four
bedroom house at Australia St. Nonetheless, it was acquired for $115,000, and
accepting Marika’s own
March 2023 valuation of $400,000, she has enjoyed
the benefits of ownership for more than 3 decades, including a capital
appreciation
of almost $300,000.
- In
addition, there is force in Jim’s submission that the evidence put forward
by Marika of her financial needs, and of her and
Costa’s assets, is
relatively slight. I also note that Marika’s medical conditions have
worsened, but not dramatically
since the will was written.
- I
have found that the reasons expressed in Rebeka’s will were not the only
reasons motivating its execution. But I see nothing
irrational in a
mother’s concern that a child who had already received a gift of real
property would, to the extent that she
received a share of Australia St, be
exposed to a claim by her husband if her marriage foundered. I can see how that
fear might have
great weight in the mind of an immigrant to this country who no
doubt through sacrifice and hard work had achieved a position where
each of
three children could receive some land notwithstanding her husband’s
premature death.
- When
those matters are borne in mind, I am unpersuaded that the Court would be
justified in making further provision above the 25%
from the estate to Marika
than was made by Rebeka.
Jim’s claim for mesne
profits
- In
light of the above, Jim’s claim to mesne profits does not arise. But it
may be as well to say the following.
- Jim’s
claim was from June 2023 to February 2024. The earlier date was chosen to
correspond with a demand by the executor named
in Rebeka’s will that
Marika vacate the property unless she paid an occupation fee; the latter date
was when Marika vacated.
The evidence of a real estate agent (who was not
required to attend for cross-examination) established rent at $1,200 per week
until
15 March 2023, and $1,500 per week thereafter. The claim in total was
$117,600. I did not understand there to be any dispute about
any of the factual
integers comprising that claim.
- Marika’s
response, based on Minister of State for the Interior v RT Co Pty Ltd
(1962) 107 CLR 1; [1962] HCA 29 and Richardson v Richardson [2021] NSWSC
353, was to deny Jim’s entitlement to an occupation fee, because he had
not first obtained possession. The facts were quite different
in the former
case, but in the latter (and passing over a complex procedural history) an
administrator sued a child of the deceased
who had remained in possession of the
family home when the will left the entire estate equally between the three
surviving children.
The administrator said that upon the grant, the home vested
in him in accordance with s 44(1) of the Probate and Administration Act 1898
(NSW) and thus he was entitled to claim mesne profits against the defendant
who occupied it thereafter. Ward CJ in Eq rejected the
claim, stating at
[152]:
Minister of State for the Interior v RT Company stands for the
proposition that a claim for mesne profits cannot succeed unless a plaintiff
proves that the plaintiff entered into
actual possession or occupation of the
subject premises before bringing such a claim. In the present case, the claim
for possession
and the claim for mesne profits were brought in the same
proceeding (see statement of claim filed 29 May 2019), and thus the plaintiffs
did not enter into actual possession of the Epping Property before bringing the
claim for mesne profits. While the plaintiff in this
case has cited a number of
cases in this Court where mesne profits have been awarded before the plaintiff
entered into possession
of the relevant property (as to which, see above), none
of those cases appears to cite Minister of State for the Interior v RT
Company or to deal with the proposition arising from that case.
- Her
Honour summarised Taylor J’s reasons in Minister of State for the
Interior v RT Co Pty Ltd, observed that it had been followed by Edelman J in
Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 who had
observed at [318] that “the High Court has iterated and reiterated that a
claim for mesne profits is one which can
only be brought when physical
possession is recovered or after an action is brought to recover
possession”, considered the
possibility of relying upon the power to cure
procedural irregularities in s 63 of the Civil Procedure Act 2005 (NSW)
and concluded at [165]-[166], rejecting the administrator’s
claim:
Fundamentally, the question that seems here to arise is whether the perceived
defect in the claim for mesne profits (by reason of
the proceeding having been
commenced before the cause of action had accrued), at least on the authority of
Minister of State for the Interior v RT Company, is capable of being
cured as a procedural defect (pursuant to s 63 of the Civil Procedure
Act) or is a substantive issue. Here, where the plaintiffs brought a claim
for mesne profits at a time before actual possession of the
premises had been
obtained, if possession was an element of the cause of action then it would
logically fail because that element
could not be established at that time.
Whether the problem could have been rectified by amendment to the statement of
claim to include
a fresh claim for mesne profits after actual possession had
been taken (albeit one relating back to the date of death) is an interesting
issue but this did not occur.
I consider myself bound by the conclusion in Minister of State for the
Interior v RT Company (endorsed as it subsequently seems to have been by
Edelman J in Hampton v BHP Billiton Minerals). Accordingly, I have
concluded that the claim for mesne profits fails.
- In
closing submissions, Jim sought to distinguish Richardson by pointing to
s 12 of the Landlord and Tenant Act 1899 (NSW) which permitted a
claim for ejectment to be made together with a claim for mesne profits, and
submitted that despite the repeal
of that provision (by the Fair Trading
Legislation (Repeal and Amendment) Act 2015 (NSW)), Marika’s defence
should not be accepted.
- I
am confident that the parties did not exchange full submissions on the point.
Jim’s submissions on this aspect of the case
were supplied on the
afternoon of the third day, and it is more than possible that Marika did not
have adequate opportunity to respond.
Had my findings been different such that
the claim had been pressed, I would have invited further submissions from the
parties.
- But
the question will recur in other cases (I note Richardson has been
followed in New South Wales Crime Commission v Hindmarch [2023] NSWSC 332
at [9]- [11]), and since there is now a split in decisions of this Court, it
seems worth noting the following points.
- First,
mesne profits is an exceptionally unfortunate label to describe a remedy which
is used in a number of different senses: see
C Mitchell and L Rostill,
“Making Sense of Mesne Profits: Causes of Action” (2021) 80
Cambridge Law Journal 130, an article from which I have derived
assistance. In the present context, they have little to do with anything that is
“intermediate”
(which is the sense of the old French word
“mesne”). Nor have they anything to do with profits, and
they are certainly distinct from the profits for which a fiduciary or some other
accounting
party may be required in equity to account. They are not rent, or
damages for breach of a covenant to pay rent, as Brennan J noted
in
Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at
39; [1985] HCA 14; see also Biviano v Natoli (1998) 43 NSWLR 695 at 704.
Indeed, they are antithetical to a claim for unpaid rent, or damages for breach
of a leasehold covenant, for their premise
is that the defendant has no
entitlement to possession. They are instead a remedy for tortious conduct,
namely, trespass to land:
Ciaglia v Ciaglia [2010] NSWSC 341 at [125].
Arden LJ said in Ramzan v Brookwide Ltd [2011] EWCA Civ 985; [2012] 1 All
ER 903 at [44]:
Mesne profits are damages for the loss of use of land, in this case the loss of
the use of the store room. A person entitled to land,
usually a landlord where
the lease or tenancy has terminated, can claim compensation for being deprived
of possession by damages
representing either the rent he actually lost or the
rent that he could have obtained if he had let the premises.
- Secondly,
in Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 435 it was noted
that “a claim for mesne profits was in origin an action of trespass and
was formerly brought after judgment
for ejectment”. That proposition
reflects subtleties which may not be immediately obvious to modern readers.
- As
I see it, the issue arises because of two historical difficulties. The first is
that it was said that there was a rule that “a
possession in fact in the
plaintiff ... is necessary to support an action for a trespass”:
Wilkinson v Kirby (1854) 15 CB 431 at 443; [1854] EngR 71; 139 ER 492 at 497. But that
led to a fiction, “trespass by relation”, to the effect that when a
person who has a right to possession
enters onto the land the person is deemed
to have been in possession from the moment when the right to possession accrued.
Lord Brougham
said of this in Carnegy v Scott (1830) VII Bligh NS 462 at
465; 5 ER 843 at 844:
[As] soon as a person recovers possession of the land [in an action of
ejectment], that is to say, as soon as he shews that he, and
not the person in
possession before, is entitled to hold that property, he recovers all the rents
and profits from the tenant as
far back as the statute of limitations allows him
to go in quest of his right.
The authorities were reviewed by Tipping J writing for the Court of Appeal in
Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1994] NZCA 266; [1995] 1 NZLR 22 at
32; [1994] NZCA 266; see also Cribb v FM Custodians Ltd [2018] NZCA 183
at [22]- [24], appeal dismissed [2018] NZSC 90; also see Oliveri v Jones
[1999] NSWSC 796 at [3]- [4].
- A
separate difficulty was purely procedural. Speaking generally, it was not
possible for an originating writ to plead more than one
form of action. These
days, statements of claim containing multiple causes of action – for
example, claims in contract and
negligence – are so typical that it can be
difficult to appreciate that that is a relatively modern development in the
history
of the common law. Yet J Chitty and T Chitty, Chitty on Pleading
(Sweet and Stevens, London, 1836) at 201 referred to the “general
rule, that actions in form ex contractu cannot be joined with those in
form ex delicto. Thus assumpsit cannot be joined with case, or trover,
nor trover with detinue”. Examples may be seen in Corbett v Packington
[1827] EngR 42; (1827) 6 B & C 268 at 271-273; [1827] EngR 42; 108 ER 451 at 453. That led to an
entirely procedural problem, because the action for mesne profits was distinct
from and dependent upon an
action for ejectment to recover possession.
- Thirdly,
there was a series of procedural responses to that procedural difficulty. The
earliest was the Recovery of Possession by Landlords Act 1820 (1 Geo 4, c
87). One leading guide to practice at common law, R Lush, The Practice of the
Superior Courts of Law at Westminster (C Reader, London, 1820), devotes six
pages to this statute and, especially, the circumstances in which it did
not apply: at pp 833-838. Essentially, it entitled a landlord to obtain
a jury’s verdict not merely on possession but also on
mesne profits at the
same trial, by permitting “the Plaintiff on the Trial, after Proof of his
Right to recover Possession
of the Whole or of any Part of the Premises
mentioned in the Declaration, to go into Evidence of the Mesne Profits thereof,
which
shall or might have accrued from the Day of the Expiration or
Determination of the Tenant's Interest in the same, down to the time
of the
Verdict given in the Cause” in which case “the Jury on the Trial,
finding for the Plaintiff, shall, in such Case,
give their Verdict upon the
whole Matter, both as to the Recovery of the Whole or any Part of the Premises,
and also as to the Amount
of the Damages to be paid for such Mesne
Profits”. To anticipate what follows, s 12 albeit in somewhat modified
form, derives
from that statute.
- Later
Georgian statutes gave other advantages to landlords, including an entitlement
to waive the right to mesne damages and obtain
by way of penalty double the
yearly value of premises for the period in which the tenant held over: see
Chitty on Pleading, pp 193-194. This legislation further illustrates the
role played by statute in overcoming the difficulties mentioned above.
- The
mid-nineteenth century reforms to the common law courts took a more general
approach, and very substantially did away with the
old rule. Instead there was a
general entitlement for a single proceeding to join multiple related causes of
action. The descendants
of these provisions were discussed in Nguyen v
Rickhuss [2023] NSWCA 249 at [34]- [40]; see also Cassaniti v Ball as
liquidator of RCG CBD Pty Limited (in liq) (2022) 109 NSWLR 348; [2022]
NSWCA 161 at [45]. That gave rise to a question whether the general entitlement
was supplemental to the previously enacted special entitlement to include
an
action for mesne profits upon an action for ejectment, or in the alternative.
Initially, the latter course was taken.
- The
result was that s 41 of the Common Law Procedure Act 1852 (15 & 16
Vict c 76) provided that “Causes of action, of whatever kind, provided
they be by and against the same parties
and in the same rights, may be joined in
the same suit; but this shall not extend to replevin or ejectment ...”,
while s 214
preserved the special entitlement on the part of a landlord to seek
to recover mesne profits at the trial of an action for ejectment.
- Fourthly,
many English statutes were copied in the colony of New South Wales. Therry
recorded that part of the duty of colonial Attorneys
General was “to
attend to the Acts of each session of the British Parliament, and apprise the
local Government of such measures
as might advantageously be adopted and
declared to extend to New South Wales”: R Therry, Reminiscences of
Thirty Years’ Residence in New South Wales and Victoria (facsimile of
2nd ed 1863 published 1974, Sydney University Press), p 316. The same pattern
may be found in ss 37 and 165 of the Common Law Procedure Act 1853 (NSW).
Section 37 was relevantly in identical terms to s 41 reproduced above, while
s 165 was relevantly identical to s 214.
- Faucett
J explained the change effected by s 165 of the Common Law Procedure Act
in Lee v Blakeney [1887] NSWLawRp 30; (1887) 8 LR (NSW) 141 at 145:
Formerly a separate action for mesne profits was necessary. In such action he
might have been entitled to recover special damage,
such as damages for loss of
a contract, if he had given notice. Now, under the Common Law Procedure
Act, to a certain extent these two actions have been combined; so that
ejectment is considered not only as an action for the recovery
of land, but also
for the recovery of mesne profits.
- Fifthly,
a potential difficulty for modern readers arose in 1899, as part of the
consolidation of New South Wales statutes. It will
be recalled that the large
majority of statutes enacted between 1897 and 1902, including the Real
Property Act 1900, the Crimes Act 1900 and the Wills, Probate and
Administration Act 1898, were part of the consolidation: see Ghamrawi v R
(2017) 95 NSWLR 405; [2017] NSWCCA 195 at [71]. In that process, the two
provisions of the Common Law Procedure Act were separated. Section 37
became s 49 of the Common Law Procedure Act 1899 (NSW), and preserved the
exception for ejectment:
(1) Causes of action of whatever kind, provided they are by and against the same
parties and in the same rights, may be joined in
the same suit; but this shall
not extend to replevin or ejectment.
- However,
s 165 of the Common Law Procedure Act 1853 was re-enacted in a separate
statute, as s 12 of the Landlord and Tenant Act 1899
(NSW):
Wherever it appears on the trial of any ejectment at the suit of a landlord
against a tenant that such tenant or his attorney has
been served with due
notice of trial the Judge before whom such cause comes on to be tried shall,
whether the defendant appears upon
such trial or not, permit the claimant on the
trial after proof of his right to recover possession of the whole or of any part
of
the premises mentioned in the writ in ejectment to go into evidence of the
mesne profits thereof which have or might have accrued
from the day of the
expiration or determination of the tenant's interest in the same down to the
time of the verdict given in the
cause or to some preceding day to be specially
mentioned therein.
- Section
12(2) required the jury to give their verdict both on the recovery of possession
and for any mesne profits, and concluded that “in
such case the landlord
shall have judgment within the time hereinbefore provided not only for the
recovery of possession and costs
but also for the mesne profits found by the
jury”.
- Pausing
there, that was the reason that Taylor J referred, in Minister of State for
the Interior v RT Co Pty Ltd at 6, to the fact that “for many years it
has been permissible in a number of jurisdictions for a landlord, after a
holding
over without consent, to combine a claim for mesne profits with
an action of ejectment”. Taylor J was referring to the provisions first
introduced in 1820, and re-enacted within
the Common Law Procedure Acts
in some jurisdictions, which in certain circumstances permitted an action
for ejectment to be accompanied by an action for mesne profits.
New South Wales
had been one of those jurisdictions since no later than 1853. Incidentally, it
seems that Western Australia was not,
a point made in Broadway Pty Ltd v
Lewis [2012] WASC 373 at [130]- [134]. Hence the discussion of the point in
Hampton v BHP Billiton Minerals Pty Ltd [No 2] at [290]-[322] is
inapplicable in New South Wales, at least to such cases as s 165 of the
Common Law Procedure Act 1853 and s 12 of the Landlord and Tenant Act
1899 applied, as noted in Willoughby City Council v Roads and Maritime
Services (2014) 201 LGERA 177; [2014] NSWLEC 6 at [130]- [132].
- Sixthly,
regard must then be had to the effect of the enactment of judicature
legislation. Of course, that occurred a century earlier
in England than in New
South Wales, but in both jurisdictions, the administrative fusion of common law
and equity meant that mid-nineteenth
century procedural reforms, which had
resulted in the Common Law Procedure Acts, were replaced by a uniform
procedure at common law and in equity. The English approach was found in the
rules considered by Wills
J in Dunlop v Macedo (1891) 8 TLR 43 to which I
shall return. The New South Wales approach was more general. Part 8 r 1 of the
Rules contained in Schedule 4 to the Supreme Court Act 1970 (NSW)
provided that “A plaintiff may, in any proceedings, claim relief against
the same defendant in respect of more than one
cause of action”, with the
rule going on to specify circumstances when the plaintiff might do so as of
right failing which
leave was required. Significantly, the exception in the case
of replevin and ejectment (which had been found in the nineteenth century
common
law procedure legislation) was preserved in the English rules, but omitted in
the New South Wales rules enacted a century
later. The modern equivalent is
r 6.18 of the Uniform Civil Procedure Rules:
6.18 Joinder of causes of action (cf SCR Part 8, rule 1; DCR Part 7, rule
1; LCR Part 6, rule 1)
(1) In any originating process, the plaintiff may claim relief against the
defendant in respect of more than one cause of action
in any of the following
circumstances—
(a) if the plaintiff sues in the same capacity, and claims the defendant to be
liable in the same capacity, in respect of each cause
of action,
(b) if the plaintiff sues—
(i) in his or her capacity as executor of the will of a deceased person, or
administrator of the estate of a deceased person, in
respect of one or more of
the causes of action, and
(ii) in his or her personal capacity, but with reference to the estate of the
same deceased person, in respect of the remaining causes
of action,
(c) if the plaintiff claims the defendant to be liable—
(i) in his or her capacity as executor of the will of a deceased person, or
administrator of the estate of a deceased person, in
respect of one or more of
the causes of action, and
(ii) in his or her personal capacity, and in relation to the estate of the same
deceased person, in respect of the remaining causes
of action,
(d) if the court grants leave for all of the causes of action to be dealt with
in the same proceedings.
(2) Leave under subrule (1) may be granted before or after the originating
process is filed.
- Seventhly,
another change effected by the judicature system introduced by the Supreme
Court Act 1970 was to eliminate the action for ejectment. The newly created
NSW Law Reform Commission wrote that it would be “necessary to
reconcile
such Acts with the scheme which we propose”: NSWLRC Rep 7, para 20, and
there was a series of deeming provisions
in the new Supreme Court Act
providing that references to ejectment were to obtaining possession (see for
example ss 8, 79 and 92 as originally enacted). To the same end it was also
necessary to amend s 12 of the Landlord and Tenant Act. As amended with
effect from 1972, s 12 provided:
Recovery of mesne profits in proceedings for possession
(1) Where, in proceedings in the Supreme Court by a landlord, a claim for mesne
profits is joined with a claim for possession of
land, and the entitlement of
the landlord to possession of the whole or of any part of the land is
established, the landlord, notwithstanding
that he or she has not recovered
possession of the whole of or that part of the land, may:
(a) unless the proceedings are tried with a jury, have judgment for mesne
profits up to the time of delivery of possession of the
land for which he or she
obtains judgment for possession, and
(b) if the proceedings are tried with a jury, have judgment for mesne profits up
to the time of the verdict of the jury.
(2) A judgment for possession and for mesne profits under this section shall not
bar any such landlord from bringing proceedings
for mesne profits which shall
accrue from the time up to which mesne profits are included in the judgment down
to the day of delivery
of possession of the land for which judgment for
possession is obtained.
- Eighthly,
s 12 remained in force until 2020. The Fair Trading Legislation (Repeal and
Amendment) Act 2015 (NSW) inserted s 1D into what survived of the
Landlord and Tenant Act 1899 and the new section provided that the latter
statute would be repealed in five years time. The result is that s 12 was
repealed five years after the date s 1D commenced, which is 30 June 2020, in the
antepenultimate year of the reign of Queen Elizabeth II, precisely two centuries
after its
English ancestor had been enacted in the first year of the reign of
her great great grandmother’s uncle, George IV.
- But
s 12 was not required after it became possible, in 1972, to include a claim for
mesne profits in what was now called a claim for possession
in the same
originating process.
- Section
12 of the Landlord and Tenant Act 1899 was also potentially a trap,
because it did not apply to all claims for mesne profits. Section 12 applied
only to claims by landlords. Section 6A (which was also introduced in 1972)
defined landlord to include a lessor, but that does not advance the matter
greatly. As Macready
M pointed out (and as had been pointed out by Lush more
than two centuries ago), not every claim by a landowner will be a claim by
a
landlord: Oliveri v Jones [1999] NSWSC 154 at [25]. In Richardson v
Pedler [2001] NSWSC 221 at [46]- [48], Macready M said, in obiter, that there
was no pre-existing relationship of landlord and tenant in the case of a son who
had obtained
letters of administration and sought the remedy against the de
facto wife of the deceased. That must be so, and it illustrates the
difficulty
in relying on what was an earlier and less general and indeed superseded
procedural provision, rather than the more general
changes effected by the
judicature legislation.
- In
my view, the numerous cases in which executors and administrators have obtained
mesne profits against widows, widowers and children
who continue in possession
of land devised to others are correct (see for example, in addition to the six
examples mentioned by Ward
CJ in Eq at [85], Finlay v Tucker [2015] NSWSC
560 at [118] - [120] ; Smith v Smith [2011] NSWSC 938 at [33]- [34];
Angius v Salier [2019] NSWSC 184; Mao v Peddley [2001] NSWSC 254
at [116]- [117]). Although it is true that no reference was made to Minister
of State for the Interior v RT Co Pty Ltd, that decision has been
inapplicable in New South Wales to claims by landlords since at least 1853, and
more generally since 1972.
- An
argument similar to that advanced by Marika was put by the defendant in
Dunlop v Macedo. Wills J rejected the submission in terms which warrant
extensive reproduction:
Trespass required that the plaintiff should have been in possession, and that
the defendant should have interfered with the possession.
Here the plaintiff
never having been in possession, is only able to maintain his action by a legal
fiction, that as soon as judgment
in ejectment was recovered and entry made
(whether by writ of possession or in pais) the entry related back ...
Under these circumstances when there had been no actual entry it was necessary
to recover in ejectment
and execute the writ or obtain possession under the
judgment, in order to get the benefit of the fiction, and so get the evidence
of
possession necessary for the action of trespass and mesne profits. The first
inroad upon this was made by G IV, c. 87, section 2, of which the 214th section
of the Common Law Procedure Act is in substance a re-enactment, and which
enabled a landlord plaintiff
(after proof of his right to possession) to go into
evidence of mesne profits for the determination of the tenancy. The right to
recover was conferred by statute in such a case, although there had been no
entry in fact. To that extent, therefore, the old law
was altered, and mesne
profits could be recovered on showing that possession ought to have been given,
but was wrongfully withheld,
and the technical necessity was put aside. The
rules of the Supreme Court go further. By order 17, rule 2, of the rules of
1875,
and by order 18 of those of 1883, it is provided that no cause of action
shall without leave be joined with an action for the recovery
of land except
inter alia claims for mesne profits. It means, as it seems to me, that
the useless machinery of judgment and entry in ejectment, and the subsequent
action of trespass with the conclusion of law therefrom (that a possession which
never existed had been taken at the date on which
the title accrued and the
assumption of a disturbance by the defendant of that non-existent possession),
are done away with, and
the right of the plaintiff to compensation for the
occupation of his land without his consent can be enforced in the same action
in
which possession of the land is sought. The only effect of the recovery in
ejectment upon the action for mesne profits was that
the entry made under it was
the peg upon which to hang the fiction of antecedent possession. Now that forms
of action are abolished,
it cannot be necessary to preserve the machinery for
supporting the legal fiction of possession at a time when there was none, it
may
be urged that the rule is in terms restrictive, that it will be literally
satisfied by confining it to cases already provided
for by the Common Law
Procedure Act, and that it was not intended to extend the remedy to cases
already provided for. The 214th section
of that Act is preserved by the Statute
Law Revision Act,1883, and it maybe that though the framers of the Act did not
take upon
themselves to expunge the section, yet the effect of the rules may be
to render it unnecessary. I have given substantial reasons
for giving the rules
the meaning which for 16 years has been put upon them by the profession. Without
possession mesne profits have
been recovered hundreds of times since 1875 under
precisely the same circumstances. Indeed, since 1875 I certainly have never
either
seen or heard of a case in which separate actions have been brought for
ejectment and mesne profits.
- The
English rules of 1875 were slightly differently drawn from those enacted in New
South Wales a century later. Order XVII r 1 generally
permitted a plaintiff to
bring two causes of action in a single proceeding. Rule 2 imposed a
qualification: that no cause of action
without leave should be joined to an
action for the recovery of land. However, rule 2 itself contained an exception:
“except
that claims in respect of mesne profits or arrears of rent in
respect of the premises claimed, or any part thereof, and damages for
breach of
any contract under which the same or any part thereof are held”. The New
South Wales rules are simpler and more general:
they provide generally that
multiple causes of action may be joined in the one originating process. And it
is to be recalled that
when enacted as a schedule to the Supreme Court
Act, they have the force of primary legislation.
- Subject
only to that qualification concerning the difference in rules, I respectfully
agree with the reasoning in Dunlop v Macedo which is applicable in New
South Wales after 1972. Dunlop v Macedo was referred to by Taylor J,
without criticism, in Minister of State for the Interior v RT Co Pty Ltd.
- Section
12 of the Landlord and Tenant Act 1899 was in my opinion preserved
unnecessarily following the conferral of a general entitlement on a plaintiff to
sue for both possession
and mesne profits in the same originating process by Pt
8 r 1 of the new Supreme Court Rules which came into effect in 1972. Nothing
turns on its belated repeal in 2020. Jim was entitled to sue for possession and
mesne profits
in the same cross-claim, in accordance with r 6.18 (the
successor to Pt 8 r 1 which was picked up and made applicable to cross-claims by
r 9.1(3)). When he ultimately obtained possession in February 2024,
that
related back until he was first entitled to possession, which in light of the
grant of probate to which he is entitled, is the
date of Rebeka’s death.
- It
follows that I accept Jim’s submission that what was said in Richardson
v Richardson as to the unavailability of mesne profits must be regarded as
per incuriam. To be fair, there is nothing to suggest that the Court was
taken to s 12, nor to any of the historical matters mentioned above, nor to
the fact that both Taylor J in Minister of State for the Interior v RT Co Pty
Ltd or Edelman J in Hampton v BHP Billiton Minerals were dealing with
cases where statute had not intervened.
- Had
the claim been pressed, I would have ordered mesne profits against Marika.
Conclusion and orders
- For
those reasons, there should be a grant of probate in solemn form in favour of
Jim, Marika’s summons should be dismissed
and Jim’s cross-claim
should otherwise be dismissed. I indicated at the conclusion of the trial that I
would permit the parties
to be heard on the form of orders, including as to
costs. Accordingly, the only orders I shall make are the
following:
Direct the parties to file and serve either an agreed
short minute of order, or alternatively proposed short minutes of order for
which they contend, accompanied by submissions not exceeding five pages, within
14 days of today, followed by submissions in reply
not exceeding three pages 7
days thereafter. The submissions in reply are to indicate whether either side
seeks an oral hearing or
is content with any dispute to be resolved on the
papers.
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