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SHEPHARD -v- TUANIE PAUL GALEA as executor and trustee of the estate of THE LATE JOSEPH GALEA [2020] WASCA 152 (11 September 2020)

Last Updated: 11 September 2020

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : SHEPHARD -v- TUANIE PAUL GALEA as executor and trustee of the estate of THE LATE JOSEPH GALEA [2020] WASCA 152

CORAM : QUINLAN CJ

MURPHY JA

MITCHELL JA

HEARD : 12 AUGUST 2020

DELIVERED : 11 SEPTEMBER 2020

FILE NO/S : CACV 68 of 2019

BETWEEN : GEORGINA SHEPHARD

Appellant

AND

TUANIE PAUL GALEA as executor and trustee of the estate of THE LATE JOSEPH GALEA

CARMEN BYRNE as executor and trustee of the estate of THE LATE JOSEPH GALEA

First Respondents

TUANIE PAUL GALEA beneficiary of the estate OF THE LATE JOSEPH GALEA

Second Respondent

CARMEN BYRNE beneficiary of the estate OF THE LATE JOSEPH GALEA

Third Respondent

FILE NO/S : CACV 101 of 2019

BETWEEN : GEORGINA SHEPHARD

Appellant

AND

TUANIE PAUL GALEA as executor and trustee of the estate of THE LATE JOSEPH GALEA

CARMEN BYRNE as executor and trustee of the estate of THE LATE JOSEPH GALEA

First Respondents

TUANIE PAUL GALEA beneficiary of the estate OF THE LATE JOSEPH GALEA

Second Respondent

CARMEN BYRNE beneficiary of the estate OF THE LATE JOSEPH GALEA

Third Respondent

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : [2019] WASC 164

File Number : CIV 1459 of 2017

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : [2019] WASC 164 (S)

File Number : CIV 1459 of 2017

Equity - Undue influence - Inter vivos gift of property from parent to two adult children - Parent's estate left with few assets as a result - Derivative action claimed on behalf of estate by an adult child who did not share in the inter vivos gift - Whether judge erred in not finding a relationship of presumed undue influence

Practice and procedure - Costs - Calderbank offer - Whether judge erred in finding that plaintiff unreasonably rejected a Calderbank offer

Legislation:

Nil

Result:

Appeals dismissed

Category: B

Representation:

CACV 68 of 2019

Counsel:

Appellant	:	M D Cuerden SC
First Respondents	:	C H Thompson
Second Respondent	:	C H Thompson
Third Respondent	:	C H Thompson

Solicitors:

Appellant	:	Eastwood Law
First Respondents	:	Nielsen & Co
Second Respondent	:	Nielsen & Co
Third Respondent	:	Nielsen & Co

CACV 101 of 2019

Counsel:

Appellant	:	MD Cuerden SC
First Respondents	:	CH Thompson
Second Respondent	:	CH Thompson
Third Respondent	:	CH Thompson

Solicitors:

Appellant	:	Eastwood Law
First Respondents	:	Nielsen & Co
Second Respondent	:	Nielsen & Co
Third Respondent	:	Nielsen & Co

Case(s) referred to in decision(s):

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against a decision of Kenneth Martin J in Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea[1] (primary decision) and his Honour's costs decision in that matter.[2]
The primary proceedings concerned a family dispute. The judge referred in his reasons to the parties by their first names and, with no disrespect intended, these reasons will do the same.
By the primary proceedings, the appellant (Georgina) brought a derivative action against the respondents (Carmen and Tony). Georgina, Carmen and Tony are the children, together with another sibling, Mario, of the late Joseph Galea. Joseph transferred his property in Bassendean to Carmen and Tony before his death, leaving little in the estate. Georgina alleged (amongst other things) that the transfer was the result of undue influence and unconscionable conduct by Carmen and Tony, and sought relief, on behalf of the estate, against Carmen and Tony. Carmen and Tony were and are the executors of the estate. For the reasons which follow, the appeal against the primary decision and the appeal against the costs decision should be dismissed.

Background[3]

Joseph was the 'patriarch' of the family. He was born in Malta in 1932.[4] He married his wife, Josuarda, in 1950.[5] In 1952, their first child, Mario, was born.[6]

1954 - 1977

In 1954, the family emigrated to Western Australia and settled in Bassendean.[7] Georgina was born in 1955. Carmen was born in 1956, and Tony was born in 1964.[8]
On arriving in Australia, Joseph and Josuarda settled into a vibrant expatriate local Maltese community.[9]
Shortly after their arrival, Joseph purchased, with his brother, Paul, a vacant block of land in Second Avenue, Bassendean (Bassendean property).[10] Between 1955 - 1957, Joseph built a family residence on the Bassendean property.[11] In 1958, he obtained a mortgage from the Bank of New South Wales, secured against the Bassendean property, and the mortgage was discharged 10 years later, in September 1968.[12] In the meantime, Joseph commenced work with Vickers Hadwa WA in Midland, and remained in employment there for over 20 years.[13] Together the family took root and prospered, enjoying a basic but happy life in their new country.[14]
Josuarda was less proficient in English than Joseph, and devoted herself exclusively to the needs of the family.[15]
Joseph was a 'saver by nature'. He encouraged Georgina to put away her money for a 'rainy day'.[16]
Further, Joseph expressed disdain against banks, and, when it came to money matters, preferred to operate by, and usually operated by, using cash.[17]
In 1977, Joseph left Vickers Hadwa WA to work as a baggage handler in Qantas, where he remained until February 1991. He retired at the age of 58. He never said 'no' to an overtime shift and worked very long hours.[18]

1980s

In the mid‑1980s, Joseph purchased some land as an investment in Gidgegannup in the name of Josuarda. Subsequently, that land was sold.[19]
In 1983, Joseph also funded the purchase of a holiday home in Mandurah (the Allnutt Street property), where the Galeas enjoyed family holidays. The property was sold in December 1988 for $58,000, having been purchased for $24,000.[20]
The sale proceeds of the Allnutt Street property were used to purchase another Mandurah holiday property, referred to as the Moat Street property. Joseph purchased the property and put it in the names of his four children, Mario, Georgina, Carmen and Tony, as tenants in common in equal shares. The property was purchased in 1988 for $78,000.[21]
The Moat Street property was used routinely by members of the family, primarily by Joseph and Josuarda, but also by arrangement by all members of the family for holiday purposes. Mario and eventually Tony both later resided in Mandurah and were proximate to the Moat Street property. Tony kept a set of keys. Joseph and Josuarda were frequent weekend and holiday visitors to the Moat Street property.[22]
Although Joseph provided the funds for the purchase of the Moat Street property, it suited Joseph's purposes to put it in the names of his children in order to receive the aged pension. He owned the Bassendean property, and more property in his name could have jeopardised his position when he retired from Qantas. Joseph 'was no fool when it came to money matters'.[23]

Retirement 1991

In February 1991, Joseph retired from Qantas. However, he still remained active, particularly in his 'shed' and in his garden at the Bassendean property. He also travelled regularly by car to Mandurah for holidays at the Moat Street property.[24]
Joseph became entitled to receive an aged pension, which was paid regularly into his Westpac bank account. However, it always remained his practice to attend personally at the local Westpac branch to draw out as cash most of the pension payment to meet his and Josuarda's essential living expenses. He was not a man of expensive taste, and he and Josuarda lived relatively frugal lives. However Joseph particularly liked the feel of cash, and he did not waste his money.[25]
Joseph was not a social man. He enjoyed his family but did not go out often. He was careful with money, basic in his tastes and enjoyed simpler things in life. He was a quiet but firmly authoritarian parental figure in the family, and did not like being contradicted. Further, if he was slighted he would tend to dwell on it. He might 'forgive but he did not forget'.[26]

2007 - Josuarda's illness

In 2007, Josuarda had a fall. She broke her hip and was also diagnosed with the onset of Alzheimer's disease. Josuarda was admitted, initially, to Swan District Hospital and then to a Belmont nursing home. However, Joseph was insistent that she be cared for at home, and she returned to the Bassendean property where Joseph cared for her prior to her passing away in April 2011.[27] During this time, Joseph coped and 'family members helped as they could'.[28]
Sometime after Josuarda's illness, certain family relationships began to unravel and deteriorate, particularly those involving Mario and Georgina.[29]

2008 - the 'comb' incident with Mario

In 2008, there was an incident between Joseph and Mario whilst Josuarda was in hospital. It concerned a supposedly lost comb of Josuarda's. Strong words were exchanged between Joseph and Mario, and there was some minor pushing as between Mario and Joseph. The incident changed the relationship, at least from Joseph's perspective. He had been 'disrespected' by his eldest son.[30] The 'comb' incident firmly established a deteriorating relationship between Mario and Joseph from that time onwards.[31]

Late 2010/early 2011 - Joseph's penultimate will

On 8 December 2010, Joseph attended the premises of his solicitor, Mr Levitan, to make a will.[32] Mr Levitan's file note records that Josuarda, Carmen and Tony also attended the meeting. Mr Levitan's file note also records instructions as to (1) Joseph's assets - his joint interest in the Bassendean property, money in the bank and a car,[33] (2) the executors - Tony and Carmen, and (3) the devise - everything to Josuarda and, in the event that she predeceased him, everything to the children equally (save that Tony was going to get the carpentry tools, in any event). The file note also refers to an enduring power of attorney given to Tony and Carmen. It also records an address for emails as Carmen's email address.[34] There was no evidence that Joseph had an email address, and it appeared common ground that he did not own a computer.
On 13 December 2010, Mr Levitan emailed a draft version of the will to Carmen for her consideration.[35]
On 25 January 2011, Joseph executed the will prepared by Mr Levitan. This was to be his penultimate will. He named his youngest children, Carmen and Tony, as his executors, and left his estate to Josuarda, and, in the event that he outlived her, directed that his estate be shared equally between his four children.[36] On the same date, Joseph gave Carmen and Tony an enduring power of attorney.[37]
Joseph also gave Tony authority to deal on his ANZ account,[38] and Joseph had been assisted by Tony and Carmen in dealing with his legal and financial affairs, such as in dealing with his pension entitlements via Centrelink.[39]

The siblings' relationships with their parents and Josuarda's death

Carmen saw her parents more often than her siblings, and was able to assist more on a daily basis and with meals and general support.[40]
Carmen and, to a lesser extent, Tony were more attentive to seeing and assisting the needs of their ageing parents.[41]
Joseph became closer to Tony and Carmen from 2011 and onwards.[42]
Josuarda died on 22 April 2011.[43] After Josuarda's death, Joseph regularly attended early morning Mass at a local church.[44]
At the time of Josuarda's death in 2011, Carmen was the most proximate to her father in Bassendean, living only a few minutes away by car. Georgina and her husband, David, resided in Gnangara. Mario and Tony both resided in Mandurah, along with their respective growing families.[45]
Joseph grew closer to Carmen and Tony, than to Georgina, after Josuarda's death. Carmen's residential proximity had much to do with that.[46] Also, Joseph and Tony effectively saw each other on a weekly basis.[47]
Georgina had a close relationship with Joseph until about 2011.[48] However, there was a particular incident involving Georgina in June 2011 'which seems to have led to an almost complete cessation of contact' as between Georgina and Joseph.[49]

The incident involving Georgina in June 2011

There was an incident between Georgina and Joseph in June 2011. Georgina's evidence was to the effect that her father had demanded her to repay a debt of $11,000, which she considered had been fully repaid some 19 years earlier. Her husband, David, went to see Joseph one Sunday to discuss the demand. David returned from seeing Joseph, and told Georgina that Joseph was very upset and was insistent that the money should be repaid. David said $11,000 should be paid to Joseph in effect to keep the peace, even though the debt would have then been repaid twice, as David and Georgina saw the matter.[50]
On Georgina's evidence, a few days later on 14 June 2011, she had raised $11,000 in cash and drove to the Bassendean property to see her father. The judge said:[51]

As Georgina related this key incident at pars 554 ‑ 565 of her affidavit, it unfolded as follows:

'I knocked on the door and Dad opened the door.

Dad said, 'Georgina, what are you doing here?'

I said, 'Dad, I am here to give you the money you asked for and this, your book.'

He said to me in an accusing tone, 'Is this how it's going to be?'

I said, 'This is what you wanted, Dad.'

I teared up and said, 'I will see you later, Dad.'

Dad closed the door.

After this I tried ringing him.

He never answered the phone.

I probably tried three or four times.

At this time Dave was working in Belmont near Dad's house.

Dave told me he tried visiting Dad on his way home of an evening. Dad would not answer.'

I found this version of events unduly sterile and surprisingly brief ‑ given the voluminous other details given regarding far less important issues in Georgina's affidavit. Hence, during the course of Georgina's oral evidence I sought to elicit whether she had intended to but had not said in her affidavit that at that time she actually gave her father the $11,000 in cash when she had spoken to him at the door of [the Bassendean property] ... She indicated she had. But I found this aspect of her evidence to be curious and ultimately, unreliable.

The incident with Mario in August 2011

There was a further incident involving Mario in August 2011, when Joseph telephoned Mario in the early hours of the morning of 25 August 2011.[52] Joseph, in effect, accused Mario's wife of stealing certain jewellery owned by Josuarda, and of taking $21,000 of Joseph's cash that Joseph said had been hidden in the living room in the Bassendean property. Mario responded in very blunt terms to his father, and the telephone call ended up with the men being on bad terms. Joseph recounted the telephone conversation to Tony.[53]
Moreover, on 30 August 2011, Joseph took out a violence restraining order against Mario. Tony had assisted Joseph in taking out the restraining order. It put heavy restrictions on Mario's future contact with his father. Mario did not contest the restraining order and it remained in place.[54]

Joseph's arrangements in September 2011

On 2 September 2011, Joseph attended his solicitor, Mr Levitan, to provide instructions for a new will.[55] Tony was present at this meeting between 9.50 am and 10.30 am.[56] At this point in time, Josuarda had passed away some five months earlier, and the August 2011 telephone call with Mario and the subsequent violence restraining order events had recently occurred.[57] Under this new will, Joseph's intention was to explicitly exclude Mario.[58]
On the same date, between 10.30 am and 11.00 am, Joseph obtained advice from Mr Levitan concerning a possible disposition of the Bassendean property during Joseph's lifetime to Carmen and Tony. That conference was with Joseph alone.[59] Mr Levitan's file note of 2 September 2011 read:[60]

Joe wants to give a gift to Tony & Carmen.

Advised Joe will pay the Stamp Duty and he does not want it to be in his Estate.

His daughter Georgina did not help Joe & his wife & ignored them. It was left to Tony & Carmen to help them & look after them.

Stamp duty = 12,000

Landgate fee 180

At this time, Joseph was telling Mr Levitan, in person, that he was seriously considering transferring the Bassendean property to Tony and Carmen during his lifetime.[61]
On 5 September 2011, Joseph attended his general practitioner, Dr Sciberras, to obtain evidence about his mental capacity. Dr Sciberras prepared a letter confirming that he was satisfied that Joseph did not suffer from cognitive impairment.[62] On the same date, Mr Levitan records having a telephone conversation with Tony.[63]
On 13 September 2011, Tony telephoned Mr Levitan. He advised, on Joseph's behalf, that a transfer of the Bassendean property to Carmen and himself was not being proceeded with at that stage.[64] At this point, Carmen and Tony had told their father that he needed to take time to think about the proposed transfer of the Bassendean property to them.[65] Joseph appears 'to have taken a brief step back' from transferring the property.[66]
On 19 September 2011, Dr Sciberras elaborated on Joseph's mental capacity and reported that he was cognitively and emotionally capable to decide his own will, and fully capable of signing an enduring power of attorney.[67]
On 20 September 2011, Joseph executed his last will and testament. He again nominated Tony and Carmen as his executors. The residuary beneficiaries were Georgina, Carmen and Tony, in equal shares. Mario was explicitly excluded.[68] The will was witnessed by Mr Levitan and a Mr Cohen.[69] The clauses dealing with the exclusion of Mario read as follows:[70]
1. I have not included my son MARIO GEORGE GALEA in this my Will as he assaulted me approximately eighteen (18) months ago and recently in August 2011 when he refused to return my late wife's jewellery and our money which his wife Karen had stolen from us, Mario threatened to kill me and as a result I took out a Violence Restraining Order Number MH332/11 against him at the Mandurah Magistrates Court to protect myself.
2. I have loaned my son MARIO GEORGE GALEA Forty Thousand Dollars ($40,000.00) which we agreed he would repay to me. He has only paid Five Thousand Dollars ($5,000.00) in or about April 2009 and I require that he repays the sum of Thirty Five thousand Dollars ($35,000.00) to my Estate as his behaviour did not justify me in releasing him from the debt.

2012 - transfer of the Bassendean property

Strand Conveyancing Services (Strand Conveyancing) assisted Joseph with the transfer of the Bassendean property to Carmen and Tony.[71] The Strand Conveyancing file was opened on 27 January 2012, and the 'file details' document indicated that it acted for the buyer.[72]
However, on 30 January 2012, a letter was sent by Ms Lowe of Strand Conveyancing, addressed to Joseph, Tony and Carmen. Amongst other things, the letter stated:[73]

Dear Sirs & Ms Byrne

RE: PURCHASE OF [THE BASSENDEAN PROPERTY]

We acknowledge and thank you for appointing us as your Settlement Agents in regard to the above transaction and we enclose the following:-

An Appointment to Act Form - to comply with Licensing controls.

...

In light of the circumstances, we do ask that you seek your own independent legal advice to ensure that this is the best way to transfer the property or if there is another way that may be more appropriate and advise this office as to the outcome.

On 1 February 2012, Joseph, Carmen and Tony executed a Strand Conveyancing 'Appointment of Settlement Agent'. The section of the appointment document which contained the words '(3) you may not act for any other party to the transaction. **(You must delete either option 2 or 3)' was crossed out.[74]
Also, on 1 February 2012, Joseph signed an instrument transferring the title of the Bassendean property to Carmen and Tony.[75] No money changed hands. The transfer was expressed by Joseph to be for 'natural love and affection'.
Ms Leon of Strand Conveyancing had taken Joseph's statutory declaration in relation to the transfer of the Bassendean property. The statutory declaration read.[76]

STATUTORY DECLARATION

I, Joesph [sic] Galea formerly of 33 Seventh Avenue Bassendean and now of 86 Second Avenue Bassendean WA, Retired

Sincerely declare as follows ‑

I am the sole registered proprietor of the [Bassendean property].
I am the sole remaining parent of [Tony] and [Carmen] (my two youngest children) and it is my decision to transfer the property into their names as Tenants in Common in Equal Shares for Natural Love and Affection. No money will be changing hands.
I am of sound mind and attach documents from my doctor stating the same.[77]
This agreement has been made conditional upon myself, Joseph Galea, remaining in occupation of the [Bassendean] property ... rent free for all of the days of my life or until I decide to relinquish the tenancy of the said property.
On 24 February 2012, the transfer was registered, and the stamp duty assessment indicated that the Bassendean property had a dutiable value of $515,000. Joseph later reimbursed Carmen for the stamp duty that she had outlaid initially upon the transfer.[78]
Ms Leon's evidence, accepted by the judge, indicated that Joseph was then acting both competently and freely of his own volition.[79]
The judge also found that Joseph expressly retained a life interest in the property.[80] After the transfer, Joseph lived at the Bassendean property rent free until about five weeks before his death (in September 2015), when his health 'deteriorated dramatically'.[81]
The judge concluded that Joseph wished the Bassendean property not to be shared with Georgina under the terms of his last will, and that '[h]arsh or potentially unwise as that might be viewed externally, that was Joseph's wish'.[82] Further, the judge concluded that Joseph's decision to transfer the property was taken in full cognisance of its negative financial consequences on Georgina. His Honour found that Joseph fully appreciated that the property would not form part of his estate if he transferred it away during his life, and he knew that the property was the significant asset of his estate and appreciated the negative financial ramifications for his estate of such a transfer made in his lifetime.[83]

2012 - proceedings in Magistrates Court against Mario

Also in February 2012, Joseph commenced proceedings in the Perth Magistrates Court against Mario to recover an alleged debt of $35,000.[84]
Mr Levitan's file records a number of telephone conversations with Tony, relating to the debt recovery, in file notes dated between 8 November 2011 and 19 July 2012, including advising Mr Levitan that his father authorised Mr Levitan to send the letter of demand to Mario.[85] Tony also went with his father to a pre-trial conference.[86]
The proceedings were discontinued later in July 2012.[87]

Mr Levitan's evidence in relation to Joseph's instructions in 2011/2012

Mr Levitan's evidence, accepted by the judge, in relation to these events included:[88]
1. [On] 2 September 2011, timed between 10.30am and 11am [there was a] conference ... with Joseph Galea alone. I advised Joseph Galea about the transfer of his property in Bassendean to his two children Tony Galea and Carmen Byrne, for the reasons stated [in Mr Levitan's memorandum of 2 September 2011]. There is a further note on the same memorandum that Tony Galea telephoned me on 13 September 2011 and indicated to me that the transfer was not being proceeded with at that stage.
2. I have known Joseph Galea for more than 6 years, and he first instructed me on 8 December 2010.

...

... Prior to finalising [the] Will [of September 2011], I received a copy of a report authored by Dr Anthony Sciberras dated 5 September 2011 relating to the capacity of Joseph Galea to make a Will ...
Joseph Galea paid the bill of $334.40 being the bill for the superseded Will and Enduring Power of Attorney and which bill was addressed to Mr Joseph Galea and dated 25 January 2011. ... At that time I also provided independent legal advice to Joseph Galea relating to those documents.

...

At all material times, I was instructed by Joseph Galea, and not by his children. At all material times, neither of Tony Galea nor Carmen Byrne influenced me at any time in relation to my advice to my client Joseph Galea.
At no time did I hear any conversations, nor see anything, that would draw me to the conclusion that Tony Galea and/or Carmen Byrne were influencing their father in any way. I recall that Joseph Galea had very clear instructions to me as to why he wanted his two children Tony Galea and Carmen Byrne to receive the Bassendean property by way of gift ...
During the time that I knew Joseph Galea, I did not consider him to be physically enfeebled - in fact I considered him to be a very robust man in his late 70s: he interacted with me as a normal client would.
I did not detect any memory loss in Joseph Galea during my conversations with him, which conversations were lucid, and easily understood by both of us. I considered him to be fluent in English, even though his first language was Maltese. I did not consider at any time that he had any difficulty comprehending my advice to him, and I had no reason to question that he was finding it difficult to comprehend the English language, written and oral.
As to his emotional state, I am of the view that he was missing his late wife very much, and was grieving his loss, but I did not consider him to be emotionally fragile at any time.
My files indicate that Joseph Galea issued proceedings against his son Mario in the Perth Magistrates Court on 23 February 2012 ... He again demonstrated his independence in terms of his thinking, given that he had stated to me that Mario's wife had taken jewellery from him without his consent that had belonged to Joseph Galea's wife.

Ms Ashcroft's conversations with Joseph

Ms Ashcroft, the child of Josuarda's sister and niece of Joseph, remained close with Joseph after Josuarda died. She visited 'Uncle Joe' at the Bassendean property and had 'really good conversations' with Joseph. She was 'confident' that he was not suffering from memory loss or confusion because he would ask about people by name and recalled previous conversations.[89] Relevantly, her evidence included:[90]

Joe talked about Georgina and Mario and told me he was heartbroken over what had happened. He blamed Karen (Mario's wife) and was adamant that she had stolen jewellery that belonged to Aunty Josuarda. He told me that Georgina and Dave owed him money, and that they said they had paid it back but he was sure they hadn't. He said that if they had paid it back there would be proof. He also told me he was sad that they didn't call or visit him.

Ms Ashcroft also had a conversation with Joseph about the transfer of the Bassendean property to Tony and Carmen. It occurred at the church where her parents and Josuarda had a 'plaque'. Her conversation with Joseph was to the following effect:[91]

And I would see him there sometimes after 8 o'clock mass on a Sunday. And after we've seen - I've seen my parents and he has seen his wife, then we would have a talk. He would ask me how I was, how my family was. This particular day, he said to me - I said to him, 'How are you?' and he said, 'Not that great', he said, 'But I'm really sad', he said, 'but I've made a decision', and I went, 'Oh', and he said, 'I've decided that I'm going to change my house'. And I asked, 'What do you mean?' He goes, 'I'm putting my house - I'm changing it. I'm transferring it over to Carmon [sic] and Tony. I've already seen a lawyer'. He said, 'It's what I want to do.' He said, 'Because without them, I don't know what I would do'. And he said to me, 'Carmen has told me that she doesn't want me to do it because she doesn't want to upset anybody'. He said, 'But it's my decision, and that's what I want to do, and I feel better about it.' And then we went on to talk about a lot of other different things, but that's what he said to me.

And how long before he died did you have that conversation with him?‑‑‑Well over - - -

Roughly. Roughly?---Well over 12 months.

The judge accepted the conversation recounted by Ms Ashcroft and regarded it as telling strongly against any suggestion that the transfer to Carmen and Tony was anything other than Joseph's own decision freely and rationally made, and without any undue influence from Carmen or Tony.[92]

2013

On 5 January 2013, Joseph visited his new granddaughter, born to Tony the previous day.[93]
On 27 June 2013, Dr Sciberras unconditionally certified Joseph as (still) fit to drive. In June/July 2013, Joseph was taken by Carmen to visit the Maltese Association, a place he had visited more frequently in the years before Josuarda became unwell.[94]
On 16 September 2013, Tony made arrangements with Telstra, on behalf of Joseph, for Joseph's telephone number to be changed.[95] As related by Tony, this was after Joseph had complained to Tony about receiving harassing or nuisance calls - not from the family. Both Carmen and Tony knew of the arrangements, but did not inform the other siblings, Mario and Georgina. The judge said that this was 'very curious'. The consequence for Georgina was that she could not reach her father over a now disconnected former telephone landline.[96]
Georgina, however, did not say that she took any steps to visit the family home at Bassendean, or to try and ascertain her father's new telephone number, or to ask Tony or Carmen about it. As noted earlier, the 2011 incident concerning $11,000 cash 'seems to have led to an almost complete cessation of contact' as between Joseph and Georgina.[97]
In November 2013, Joseph obtained some legal advice from another firm of solicitors, and executed a second enduring power of attorney given to Carmen and Tony.[98]

The sale of the Moat Street property in early 2014

In 2014, the four Galea siblings agreed that the Moat Street property held in their names should be sold. It was sold for $300,000, with settlement being effected on 17 March 2014.[99]
Each of the siblings was entitled to a quarter share of the net proceeds of sale, being $73,652 each. All of the siblings agreed that they would relinquish $25,000 of their share to Joseph. However, Mario relinquished the whole of his share. On this basis, the siblings transferred a total of $148,635 (being $25,000 each from Carmen, Tony and Georgina, and Mario's full share of $73,652) into Joseph's ANZ bank account (ANZ account).[100] Joseph had no knowledge of these payments until the money arrived in his bank account.[101]
Shortly after that, on 25 March 2014, Carmen and Tony each received $25,000 from Joseph's bank account. Neither Joseph, nor Carmen or Tony, told Mario or Georgina about these $25,000 payments from Joseph at this time (or at all).[102]
Eventually, residual funds totalling approximately $98,000 in Joseph's ANZ account were transferred to his Westpac account. This lump sum posed a potential negative impact for his pension. Joseph withdrew the amount by cash amounts over the period June 2014 to July 2015.[103]

Late 2014

By the end of 2014, Joseph had been referred to an oncologist for metastatic prostate cancer and superficial bladder cancer. He attended various appointments over the following months, and Carmen accompanied him to most if not all of those appointments.[104]
Despite this, Joseph remained active and ambulatory, spending time in his 'beloved shed and garden' at the Bassendean property. He continued to shop, clean and cook for himself.[105]

2015

On 26 May 2015, Dr Sciberras once again unconditionally certified Joseph as fit to drive.[106]
However, on 6 August 2015, Dr Sciberras noted a deterioration in Joseph's condition along with the existence of depression.[107]
On 9 August 2015, Joseph drove himself to early morning Mass in Lockridge, and then over to Carmen's house in Bassendean for dinner. He also visited friends at an aged care facility in Embleton in the company of Carmen.[108]
On 10 August 2015, Joseph again attended Dr Sciberras who noted that Joseph had 'worsened'. He was admitted to Sir Charles Gairdner Hospital on 11 August 2015 and transferred to Swan District Hospital on 2 September 2015.[109]
On 8 September 2015, Joseph's condition deteriorated, and Tony, for the first time, called Georgina and Mario to advise that their father was unwell and in hospital.[110]
On 10 September 2015, Joseph died. The funeral was held at his local Catholic church.[111]

Georgina's claim in the primary proceedings The derivative action

The judge said:[112]

The lifetime divestiture of [the Bassendean property] by Joseph has led to a situation whereby at the time of Joseph's death, the worth of his estate was only minimal, essentially he left financial assets of around $15,000. Consequently, the worth of Georgina's one‑third residuary interest in Joseph's estate works out at essentially, one‑third of 'not very much'. Her one third residuary interest would have been worth substantially more, but for the pre‑death divestments of assets to Carmen and Tony, which her derivative action now seeks to claw back for Joseph's estate.

Undue influence

Georgina pleaded both presumptive undue influence and actual undue influence. As to the former, presumptive undue influence, Georgina pleaded:[113]
1. At the time of the transfer of the Bassendean property:

(a) Joseph was still grieving the loss of Josuarda, was close to 80 years of age and was chronically ill, including with prostate and bladder cancer, diabetes, hypertension, chronic incontinence, chronic back pain, dizziness, chronic tinnitus in the right ear, was losing weight, was physically weak, suffered from mild memory loss and suffered from worry and anxiety; and

(b) he 'had substantially withdrawn from the family' other than Tony and Carmen.[114]

By reason of those matters, Joseph 'had become emotionally dependent upon Carmen and Tony'.[115]
Since the death of Josuarda, Joseph had become dependent upon Carmen and Tony generally, in that Carmen and Tony assisted Joseph with his meals, drove him to places, made and attended medical and solicitor's appointments, instructed solicitors on his behalf, dealt with his Telstra account, dealt with and managed his Centrelink entitlements and paid his legal bills.[116]
Prior to the transfer of the Bassendean property, and after Josuarda's death, Joseph had appointed Tony and Carmen as attorneys under an enduring power of attorney dated 25 January 2011, had appointed Tony and Carmen as executors of his will, had given Tony authority to deal with his ANZ bank account and his Centrelink entitlements, had given Tony authority to conduct his legal and financial affairs, and had authorised Carmen to receive his confidential legal documents by email from his solicitor.[117]
In the premises referred to in points 1 ‑ 4 above, Carmen and Tony were 'in an antecedent relationship with [Joseph] in which [Joseph] reposed trust and confidence in Carmen and Tony and had become emotionally dependent upon them', and Carmen and Tony were 'in a position to exercise dominion over [Joseph]' and, accordingly, Joseph 'was not in a position to exercise his own free will' in relation to the transfer of the Bassendean property and the transfer was 'therefore not a product of a free and independent mind, and the transfer was so improvident or substantial as to not be reasonably accounted for on the ground of the relationship between Joseph and Carmen and Tony or by other ordinary motives on which ordinary persons act'.[118]

Georgina also relied on actual undue influence by Carmen and Tony in procuring the transfer of the Bassendean property.[119]

Unconscionable conduct

Georgina also alleged that the transfer of the Bassendean property was effected at a time when Joseph was at a special disadvantage, and that Carmen and Tony were aware of Joseph's vulnerability and took unfair and unconscientious advantage of the opportunity created by the transfer and, in doing so, acted unconscionably.[120] The plea of 'special disadvantage' relied on the same matters pleaded by Georgina as supporting a finding of a relationship of presumed undue influence.[121]

The judge's findings on undue influence and unconscionable conduct Undue influence

In relation to undue influence, the judge referred to 'forensic considerations as regards proof in an undue influence case and ... presumptions'[122] and, in that context, referred to the observations of the High Court in Thorne v Kennedy:[123]

There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction ... Another way in which undue influence can be proved is by presumption ... A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a 'substantial benefit' to another, which cannot be explained by 'ordinary motives', or 'is not readily explicable by the relationship of the parties' ... Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party’s free will. (emphasis added)

His Honour also referred to the High Court's decision in Johnson v Buttress.[124] Latham CJ, Dixon, Evatt and McTiernan JJ explained the decision in Buttress on the basis that there existed an antecedent relationship of influence (Starke J found actual undue influence on the facts). The judge contrasted the circumstances in the present case with those in Buttress, and said:[125]

Towards present circumstances, in strong contrast to the position of Mr Buttress in Johnson v Buttress ..., Joseph here, as regards his disposition of [the Bassendean property] to Carmen and Tony in February 2012:

(a) was then only about seven months short of reaching his 80th birthday;

(b) had executed his final will and testament on 20 September 2011, some five months earlier;

(c) had been a widower for approximately 10 months since the passing of Josuarda on 22 April 2011;

(d) had rightly or wrongly, become estranged from Mario, following the 2011 incident and subsequent 2011 VRO which Mario did not challenge;

(e) was by no means illiterate, unintelligent, or without any business acumen, in contrast to the respondent in Johnson v Buttress;

(f) had been retired from full-time employment for almost 20 years, was debt free and was financially secure being in receipt of the aged pension and with no dependants;

(g) had expressly retained for himself a rent free life interest in the [Bassendean] property to let him effectively reside there until his death as part of his transfer dealing with Carmen and Tony;

(h) had satisfied the acting settlement agent used by him in relation to the 2012 transfer of [the Bassendean property] (in circumstances where he was transferring the property to his children for only 'natural love and affection') that he was acting freely without influence and had a proper understanding of the consequences of his transfer; and

(i) had fully appreciated the consequences of what he had done in 2012 by transferring [the Bassendean property] sufficient to recount and reaffirm all this coherently and independently to his niece, Ms Ashcroft.

In all these circumstances, I find no basis from the trial evidence to conclude that the February 2012 transfer of [the Bassendean property], was anything other than a fully informed and deliberate decision of Joseph made at that time. I reject suggestions that Joseph's free will was somehow overborne in this transaction by Carmen and Tony, or that Joseph was somehow subjected to improper, undue or illegitimate pressure. Any legal presumption relied upon to suggest that conclusion is rebutted by the trial evidence assessed as a whole.

Moreover, I conclude that it was a transfer decision by Joseph made in full cognisance of its negative financial consequences as regards Georgina, under the latest workings of Joseph's final will at his death. Joseph, I find, fully appreciated that [the Bassendean property] would not form any part of his estate if transferred away during his life. Joseph knew [the Bassendean property] was the significant asset of his estate and further appreciated the negative financial ramification for his estate of such a transfer made in his lifetime. This would be that the one-third residuary beneficiary interest left to Georgina (and Tony and Carmen) would effectively be rendered, if not wholly worthless, financially paltry compared to the worth of the one-third share which would have been received if the [Bassendean property] did form part of his estate. There is no doubt on all the evidence that Joseph did appreciate that negative outcome vis-a-vis Georgina. I further find that Joseph not only intended it, but that he was content with it. (emphasis added)

In relation to the particular matters pleaded by Georgina in relation to presumptive undue influence (see [79] above), the[126]dge said:126

As regards undue influence, the relevant plea appears to culminate at pars 32 - 33. The effect of the plea at this section would seek to paint Joseph (from April 2011) onwards as a physically sick, frail old man suffering from many health ailments and who was vulnerable at the hands of Carmen and Tony as regards his financial decisions.

I must reject that attempted characterisation of Joseph as being erroneously overblown. True it is that Joseph was approaching 80 years of age and had been suffering from prostate cancer for some years. However, that condition was controlled by medication. Joseph also suffered from a bad back since he retired from Qantas and something was sought to be made of that in the plea.

However, I conclude that Joseph was still a physically active man. He still enjoyed gardening and his shed. Joseph still looked after himself, cooked, cleaned and shopped for himself. He conducted rational conversations with visiting family, friends and acquaintances met, particularly at the daily morning Mass he attended. After Joshuarda's [sic] death Joseph became even more religious. He would attend Mass on a daily basis, driving himself by car from Bassendean to the Good Shepherd Catholic Church in Lockridge for the early morning service.

The trial evidence as a whole does not suggest to me a physically frail or compromised old man. To the contrary, I assess Joseph as a mobile, active and more than capable 80 year-old. True, Joseph was greatly saddened and distressed by the loss of his wife in 2011 - but he was not broken by his grief. He still coped well enough with the exigencies of being a widower after 60 years of marriage and with the advancing ravages of time. Joseph's housekeeping and cooking skills may not have been up to Josuarda's exacting standards, but Joseph still coped satisfactorily enough as he always had.

Within this same sphere of the pleading it is also contended Joseph was 'emotionally dependent' upon Carmen and Tony (par 28). The term 'emotionally dependent' as used here, is an unclear and unhelpful phrase. The phase tends to obscure, rather than to elucidate when used in the present context. Certainly, Joseph became closer to Tony and Carmen from 2011 and onwards. I accept he fully trusted them both. He appointed them as his executors and had given them an enduring power of attorney in January 2011. Joseph had given Tony his authority to deal on his ANZ account ... Joseph had been assisted by Tony and Carmen in dealing with his legal and financial affairs, such as in dealing with his pension entitlements via Centrelink. Joseph had also been assisted by Carmen and Tony in his travelling to meet Mr Levitan and to go about all the steps to draw up and obtain his final will in September 2011. For that assistance Joseph was grateful to them. But none of that, on my assessment, amounts to more than a 'hill of beans', as regards the proof of their undue influence over Joseph.

Added to that is Georgina's attempt to portray Joseph as an emotionally devastated old man in the wake of the loss of his beloved wife of over 60 years. There is no doubt that Joseph had loved his wife Josuarda deeply. He was understandably distressed at the time of her passing in April 2011 and for a period after that. Such deep grief and sense of loss is perfectly understandable in those circumstances. But the elided suggestion that his loss of Josuarda rendered Joseph so emotionally fragile as to be suffering from a 'special vulnerability', or a 'disadvantage', by my assessment, significantly exaggerates Joseph's position. It simply goes too far.

On all the evidence, Joseph had faced and dealt with his grief and he had stoically carried on. Joseph was not a wilting lily. True, he was grateful for the support of his children and grandchildren when they visited, particularly Carmen and Tony. But on my assessment Joseph always remained capable and competent as regarding the conduct of his financial affairs and his relationships. (emphasis added)

Unconscionable conduct

In relation to unconscionable conduct, the judge referred to the observations of the High Court in Thorne and in Kakavas v Crown Melbourne Ltd.[127] His Honour found that, first, there was no relevant special disadvantage ever applicable to Joseph and, secondly, Joseph's action in disposing of the Bassendean property was not a product of any relevant unconscionable conduct directed towards Joseph by Carmen or by Tony.[128]

Conclusions

The judge concluded the section of his reasons dealing with the evidence and witnesses in the following terms:[129]

I conclude this section of the reasons repeating an observation I have previously rendered. It is demonstrably clear from all the trial evidence that Carmen and Tony grew much closer to their father in the period after Josuarda's passing from April 2011. The fact that Joseph reposed trust and confidence in Carmen and Tony and was affectionate towards them, enjoyed their company and gratefully accepted their assistance from time to time with daily various tasks, may all be accepted. However, on my assessment, all that is not enough to show proof of undue influence or unconscionable conduct as alleged. I need to be satisfied, in accordance with legal principles already discussed, that there was an exertion by Carmen and Tony of some influence over Joseph in terms of overriding or compromising Joseph's decision making, that benefited them both. Alternatively, I am looking for a level of unconscionable conduct by Carmen and Tony directed towards their father - were he assessed to be in a position of special vulnerability (which I would reject) - to make good the unconscionable conduct cause of action Georgina advances on a derivative basis, if she has standing as a one-third residuary beneficiary.

In the end I reject all the undue influence and unconscionable conduct allegations as regards Joseph's 2012 transfer of [the Bassendean property]. I am left satisfied that Joseph wanted, after retaining a rent-free life interest for himself in the family house he had built with his hands and sweat, to see Carmen and Tony enjoy the benefit of receiving that property, shared only as between them. Correlatively, Joseph deliberately and freely implemented steps in his lifetime, so that [the Bassendean property] would not form an asset of his estate that might otherwise be shared on a one-third residuary basis with Georgina. Whatever the reasons underlying his decisions, this was Joseph's decision concerning what he did with his own property. Subject to law, he could do with it as he pleased, as he did.

Grounds of appeal and Georgina's submissions Grounds

Georgina's substituted grounds of appeal comprise three grounds:
1. The judge erred in fact and in law in failing to find that the antecedent relationship between Tony and Carmen (or either of them) and Joseph was such as to give rise to a presumption of undue influence with respect to the transfer of the Bassendean property.
2. The judge erred in fact and in law in finding that such presumption had been rebutted, and in failing to find that Tony and Carmen had failed to rebut the presumption of undue influence with respect to the transfer of the Bassendean property.
3. The judge erred in fact and in law in failing to give Georgina leave to pursue a derivative action against Carmen and Tony.

Georgina's submissions

By way of overview, Georgina contended, in effect, that the judge treated the case as a claim based on actual undue influence, and did not address or make findings on the presumptive undue influence case alleged by Georgina. That case was to the effect that there was a pre‑existing relationship between Tony and Carmen on the one hand, and Joseph on the other, which was of a nature which gave rise to a presumption of undue influence.[130]
Georgina also contended that the judge did not find that there was not a relationship of undue influence, but merely concluded that any presumption had been rebutted.[131] Georgina contended that, in not having considered the case of presumptive undue influence, the judge wrongly placed the onus on Georgina to prove the existence of actual undue influence.[132]
Georgina also said that she did not challenge any credibility‑based findings of fact. Rather, the appeal was confined to the proper conclusions which flowed from the judge's findings, the incontrovertible facts and the uncontested testimony.[133]

Ground 1

Georgina accepted that the relationship of Joseph on the one hand, and Carmen and/or Tony on the other, did not fall within the recognised categories attracting the presumption. Nevertheless, Georgina contended that a relationship of presumptive undue influence was established, having regard to the following matters:[134]
1. The transfer of the Bassendean property could not be explained by ordinary motives and was not readily explicable by the relationship of the parties, in that:

(a) the gift to Carmen and Tony was a substantial amount, both in absolute terms and relative to Joseph's overall assets - it was not only his residence but his only substantial asset;[135]

(b) the gift was inexplicable in circumstances where Joseph had not long earlier made his final will gifting his estate to Tony, Carmen and Georgina in equal shares,[136] and where the result of the transfer was effectively to make the estate worthless;[137] and

(c) the transfer was improvident in that Joseph, whilst believing that he retained a life interest in the property, did not - he put its ownership beyond recall and left himself dependent on the goodwill and benevolence of Tony and Carmen. The judge described the transfer as 'harsh or unwise'.[138]

The finding that Joseph was not under a special disadvantage did not answer the question of whether there was undue influence.[139]
At the time of the transfer, Joseph was 79 years of age, he had only recently, 10 months earlier, lost his wife of over 60 years, and, after her death, he lived alone.[140]
The evidence of Tony and Carmen was to the effect that Joseph was very hard of hearing and relied on them to communicate with others on his behalf.[141]
Joseph was not a social man and, apart from his church attendance, had limited contact other than with the members of his family.
By August 2011, Joseph had become isolated from both Mario and Georgina, and, from that time onwards, his only contact was with Carmen and Tony, at least on matters of a financial nature.[142]
Tony assisted his father in relation to the restraining order which led to a complete breakdown in his relationship with Mario.[143]
Tony and Carmen failed to inform Georgina and Mario, from September 2013, that Tony, with Carmen's knowledge, had arranged a new telephone number for their father,[144] and they had failed to inform Georgina or Mario of their father's ill health until about two days before his death, notwithstanding that he had been seriously ill and hospitalised.[145] Although these matters occurred after the transfer of the Bassendean property in February 2012, they are indicative of their attitude prior to that time.
The judge found that Joseph 'fully trusted' Tony and Carmen.[146]
Joseph had appointed Tony and Carmen as the executors of his will and had given them an enduring power of attorney in January 2011. He had also given Tony his authority to deal with his ANZ bank account. Both Carmen and Tony assisted their father in dealing with legal and financial affairs, such as his pension entitlements via Centrelink, his travelling to meet his solicitor, Mr Levitan, and to go about all the steps to draw up and maintain his final will in September 2011.[147]
The involvement of Carmen and Tony extended to Joseph's legal and testamentary affairs, in that:

(a) Tony and Carmen attended with their father and Mr Levitan in December 2010 to discuss the preparation of their father's penultimate will executed on 25 January 2011;[148]

(b) Mr Levitan emailed Carmen a draft version of his penultimate will for her consideration and instructions;[149]

(c) Tony was present with his father when he met Mr Levitan on 2 September 2011 and gave him instructions to make what became Joseph's final will, which specifically excluded Mario;[150]

(d) the meeting between Tony, Joseph and Mr Levitan on 2 September 2011 to discuss Joseph's will was only three days after Tony had assisted his father to obtain a violence restraining order against Mario;

(e) immediately following that meeting, Joseph met with Mr Levitan alone and told him that he wished to transfer the Bassendean property to Carmen and Tony;[151]

(f) Mr Levitan spoke with Tony three days later, on 5 September 2011, about the subject of the then proposed transfer,[152] and on 13 September 2011 Tony told Mr Levitan that it was not being proceeded with at that stage.[153]

(g) Tony was involved in a number of telephone conversations with Mr Levitan on his father's behalf, and agreed that he assisted his father in 2012 in instructing Mr Levitan with respect to the recovery of an alleged debt from Mario - including instructions to Mr Levitan on his father's behalf to send a letter of demand, instructing Mr Levitan on 1 February 2012 to sue Mario for the alleged debt and attending a pre‑trial conference on his father's behalf;[154] and

(h) Tony collected his father's mail.[155]

The evidence of Ms Ashcroft, accepted by the judge, was to the effect that Joseph said that he wished to transfer the Bassendean property to Carmen and Tony 'because without them, I don't know what I would do'.[156]
Joseph, having decided not to proceed with the transfer around 13 September 2011, nevertheless changed his mind, and Carmen and Tony did not explain why he did. The judge found that Joseph's reasons remained 'something of a mystery'.[157]
Whatever Joseph's reasons, it was Tony (not Joseph) who contacted the settlement agent with respect to the transfer. This contact occurred on or about 27 January 2012, only three days before the transfer documents were signed on 1 February 2012, and (Georgina contended) the settlement agent's documents record that they were retained by Carmen and Tony, not by Joseph.[158]
The settlement agent's records include a note of instructions, by necessary implication from Tony, which said 'trying to protect father's stakes have a problem with another sibling' - evidently (according to Georgina) a reference to Mario.[159] This was only four months after Joseph had made his final will on 20 September 2011, leaving everything to the other three children, but not Mario.
Both Carmen and Tony accompanied Joseph to the settlement agent on 1 February 2012 to sign the documents to effect the transfer to themselves, although they were not in the same room when Joseph signed his statutory declaration.

Georgina submitted:[160]

Having regard to the whole of these circumstances, the proper conclusion is that [Joseph] placed a level of dependency upon [Carmen and Tony] which went well beyond ordinary familial trust and confidence. [Carmen and Tony] (or at least one of them) stood in a special relationship of influence over their father, with the capacity to influence him in his decision to transfer his residential property to them. The transfer was not readily explicable by reference to the ordinary incidents of their relationship. Accordingly the circumstances were such as to place upon [Carmen and Tony] the onus of rebutting the presumption of undue influence.

Ground 2

Georgina contended that Tony and Carmen did not rebut the presumption of undue influence. She contended that, in order to rebut the presumption, Tony and Carmen were required to establish that Joseph (1) knew and understood what he was doing in the sense that he 'thoroughly comprehended the transaction', and (2) was acting independently of the influence of Carmen and Tony.[161]
Georgina contended that neither of these facts had been established by Tony and Carmen.[162]
As to the first matter, Georgina contended that Carmen and Tony did not prove that Joseph knew and understood what he was doing, having regard to the following matters:[163]
1. Although Joseph signed a statutory declaration indicating that he had retained a life interest in the Bassendean property, that was not the case - the transfer was unconditional. At best, he may have had a caveatable equitable interest but, even so, there was no caveat lodged to protect any such equitable interest.
2. The evidence of Tony and Carmen was that they did not discuss the potential risks and implications of the transfer.
3. Mr Levitan had acted for Carmen in a family law matter and in preparing Carmen's will. Carmen did not adduce evidence of the full details of the professional relationship between her and Mr Levitan, and 'therefore there was no evidence from which the judge could conclude that Mr Levitan was fully independent of Carmen'.
4. Although Mr Levitan's evidence was to the effect that he 'advised' Joseph about the then proposed transfer of the Bassendean property, there was no evidence as to the detail or content of any such advice, and the judge could not be satisfied that Mr Levitan did give 'advice' about the transfer.
5. In any event, there was no evidence of any advice about the disadvantages or implications of the transfer from Joseph's perspective, and no evidence about any advice as to the incongruity of transferring the Bassendean property in a context where he had recently made a will providing for his estate to be shared between Tony, Carmen and Georgina, and when the effect of the transfer was to deplete his estate.
6. Further, Mr Levitan had no involvement in the proposed transfer after 13 September 2011.
7. Ms Leon's evidence did not assist Carmen and Tony because:

(a) she was retained by Carmen and Tony (and not by Joseph);

(b) she was not qualified to give any advice to Joseph about the propriety, disadvantages or implications of the transfer; and

(c) although she assisted Joseph in preparing and signing a statutory declaration concerning a life interest, she allowed the transfer to be registered without any reference to a life interest, or even lodging a caveat to protect any equitable interest.

In these circumstances, it may be accepted that (1) Joseph was mentally competent to transfer the property, and (2) knew what he was doing in the sense that he knew that he was transferring legal title to the property. However, 'it was not open to the judge to conclude that he understood the implications of the transfer'.

Georgina also contended that Carmen and Tony had not proved that Joseph acted independently of their influence, in that:[164]
1. The judge made no finding as to Joseph's reasons for transferring the Bassendean property to Tony and Carmen. Further, the possible explanation recorded in Mr Levitan's file note (love and affection) was contrary to the judge's findings of fact, in that:

(a) the judge found that 'family members' (which may be taken to include Georgina) helped Joseph care for Josuarda at home insofar 'as they could';[165] and

(b) it was only after Josuarda's death that Joseph grew closer to Carmen and Tony.

Carmen and Tony adduced no evidence as to why Joseph changed his mind after 13 September 2011.
The judge found that 'why' Joseph transferred the Bassendean property after expressly naming Georgina as a beneficiary under his last will 'must remain something of a mystery', and that 'whatever the underlying reasons' for Joseph's decision, it was ultimately his decision.[166]
Tony instructed a settlement agent to provide no information to Mario, and neither Tony nor Carmen informed Georgina of the transfer. Georgina's knowledge of it occurred only after Joseph's death. The fact that a transfer is kept secret from other members of the family tends to suggest that it was the result of undue influence.[167]
Whilst Tony and Carmen told Joseph that he needed to take time to consider his proposal to transfer the Bassendean property to them, this simply reinforces the fact that he was discussing the transfer with them.
In any event, evidence of that nature is of limited significance given that the doctrine of undue influence is not concerned solely, or even primarily, with gifts which the donee has actively encouraged the donor to make.
Further, it could not be said that Tony and Carmen were passive recipients of the gift, in that they engaged the settlement agent and attended with Joseph on the execution of the transfer.
There was no evidence that Tony (as opposed to Carmen) tried to discourage Joseph from making the transfer.
Ms Ashcroft's evidence 'went nowhere' in answering the questions which the judge should have addressed but failed to consider - whether Joseph knew what he was doing and how the intention to transfer had been produced.

Ground 3

Georgina contended, in effect, that if grounds 1 and 2 are upheld, the proper conclusion is that Georgina be granted leave to pursue the derivative action. Georgina, in oral submissions, also referred, in support of this proposition, to Whereat v Duff.[168]

The submissions of Carmen and Tony Ground 1

Carmen and Tony contended, in effect, that:
1. The common characteristic of presumptive relationships of undue influence is that the first‑named in such a relationship will advise and afford guidance to the other in and for the purpose of such relationship, solely in the interest and for the benefit of the other.[169]
2. Further, in none of the cases where a presumption of undue influence arises is it natural to expect one party to give property to the other, so that the character of the relationship itself is never enough to explain the transaction and to account for it without suspicion of confidence abused.[170]
3. Here, it was entirely natural, and indeed expressly recognised by the law through the presumption of advancement, that a father would give property to a child, even an adult child.[171]
4. For the relationship in this case to be a type where a presumption arises, it was incumbent upon Georgina to show that the relationship between Carmen and Tony and Joseph was one which naturally involved ascendancy or influence on the part of Carmen or Tony, or dependence and trust on the part of Joseph. That is, Georgina had to prove that the nature of the relationship involved a degree of reliance, dependence or trust which created ascendancy on their part over his free will.[172]
5. The judge addressed the pleaded case of presumed undue influence at primary decision [215] ‑ [221].[173]
6. The judge rejected Georgina's factual premise as to the nature of the relationship involving ascendancy or influence on the part of Carmen and/or Tony, or dependence and trust on the part of Joseph. Having rejected the underlying factual premise, the question of whether a presumption was rebutted did not arise.[174]
7. Contrary to Georgina's contentions, Joseph did retain a life interest in the Bassendean property, being an ability to reside at the property for his lifetime without the payment of any rent.[175]
8. The judge did not make a finding that the transfer of the Bassendean property was harsh or unwise. Rather, his observations were to the effect that cutting Georgina out of the estate by gifting the property to Carmen and Tony might seem, to third parties, as harsh or unwise. There was no finding that the transfer was harsh or unwise in respect of Joseph's own interest, and it is his own interest that must be considered in an undue influence case.[176]
9. What the appellant seeks to do is to re‑run the case at trial, and argue, in effect, that the judge's findings were against the weight of the evidence, without squarely raising that proposition and without complying with the relevant practice direction.[177]

Ground 2

Carmen and Tony contended that the question of rebutting the presumption does not arise in circumstances where the judge did not find that the presumption arose. They also contended that, in any event, the judge had 'plenty of evidence' to rely on to be satisfied, as he was, that the transfer was the exercise of Joseph's own free will. That evidence comprised Mr Levitan's affidavit, his entire file, Ms Leon's affidavit (who was not cross‑examined), the affidavit of Dr Sciberras and his medical files (Dr Sciberras not having been cross‑examined), the oral evidence of Ms Ashcroft, the affidavit of Ms Harsany, and the file notes of Joseph's other solicitor, Mr Brook.[178]

Ground 3

Carmen and Tony contended that, ultimately, if, contrary to the judge's conclusions, this court accepted that the special or extraordinary circumstances relied upon by Georgina are made out, then this court may conclude that she had standing to bring the claim.[179]

Legal principles Undue influence

An overview of the relevant principles was provided in Permanent Mortgages Pty Ltd v Vandenbergh:[180]

The basis of the equitable jurisdiction to set aside an alienation of property on the grounds of undue influence is the prevention of the unconscientious use of any special capacity in or opportunity for the disponee to affect the disponor's will or freedom of judgment in reference to the transaction: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134.

The jurisdiction to set aside a transaction procured by undue influence is exercised on two bases. The first is where undue influence is proved as a fact. The second is where undue influence is presumed by reason of the antecedent relationship between the parties, and the presumption has not been rebutted: Johnson v Buttress (119); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. The former is 'actual' undue influence and the latter is 'presumed' undue influence: Powell v Powell [2002] WASC 105 [120] ‑ [121].

Actual undue influence requires proof that the transaction was the outcome of such an actual influence over the mind of the disponor that it cannot be considered to be the free act of the disponor: Johnson v Buttress (134). The source of power to practise such influence or domination over the disponor may not arise from an antecedent relationship, but may arise in the particular situation, or by the deliberate contrivance of the disponee: Johnson v Buttress (134).

Presumed undue influence arises in two ways. One is where there exists a class of relationship historically recognised by the law as raising a presumption of undue influence. The recognised classes include parent and child, guardian and ward, solicitor and client, doctor and patient, religious adviser and adherent ...

Dispositions from the latter to the former fall within the presumption.

The other is where, outside of those recognised categories, the plaintiff positively proves that there in fact existed an antecedent relationship between the parties, the nature of which was that the defendant was in a position to exercise dominion, power, or ascendancy over the plaintiff: Meagher, Heydon & Leeming, Equity: Doctrines & Remedies [15‑105].

The recognised categories of relationship are marked by the characteristic that it is not natural to expect that 'one party would give property to the other. That is to say, the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused': Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675.

Parents' dispositions to children can be explicable as being the consequence of parental love and affection without any suspicion of confidence abused. Accordingly, the parent/child relationship, insofar as it concerns dispositions from parent to child, is not a presumed relationship of influence. See Powell v Powell [130]; Wilby v St George Bank [2001] SASC 388; (2001) 80 SASR 404 [95]; Urane v Whipper [2001] NSWSC 796 [22]; Tessmann v Costello [1987] 1 Qd R 283, 293; ASB Bank Ltd v Harlick [1996] 1 NZLR 655, 660 ‑ 662.

...

Where a special relationship outside of the traditional categories is set up it is 'necessary to see the extent and nature of the confidence reposed and whether it involved any ascendancy over the will of the person supposedly dependent on the confidence': Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113, 133.

The doctrine of undue influence looks to the quality of the consent, or assent, of the weaker party: Commercial Bank of Australia v Amadio (474); Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 478.

Equity does not intervene in such cases to 'discourage generosity or folly' but for reasons of public policy and utility, to protect persons from being deprived of their property by force or fraud of any kind.[181] Undue influence is, in all circumstances, 'bottomed in fraud'.[182]
In Thorne, the plurality said:[183]

There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction ... Another way in which undue influence can be proved is by presumption ... A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a 'substantial benefit' to another, which cannot be explained by 'ordinary motives', or 'is not readily explicable by the relationship of the parties'. Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will. (emphasis added) (footnotes omitted)

It is not necessary, in this context, for the plaintiff to prove 'domination' in the ordinary sense in which that word is used.[184]
The question of whether a person's act is 'free' requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Whilst it is not necessary for a person's will to be 'substantially subordinated' or to find that the person was reduced merely to an automaton, at the very least, the judgemental capacity of the person claiming relief (or on whose behalf relief is claimed) must have been 'markedly substandard'.[185]
The provision of independent advice is an important consideration on the question of whether a presumption of undue influence has been rebutted. The advice must be independent and effective for the purposes of enlivening the client's appreciation of the transaction, its legal effects and the alternatives (if any) which are open to the client.[186]
In Bester, the plaintiff sought to set aside a settlement that she had made as a 21‑year‑old single female in which she vested her share of her father's estate in her uncle and the Public Trustee Co Ltd. The terms of the settlement were, from her perspective, objectively improvident.[187] Both her uncle and the Public Trustee stood in an antecedent relationship of confidence with her akin to that occupied by a parent towards a child or a guardian towards a ward.[188] The terms of the settlement were read to her by a solicitor through an arrangement made by the uncle. The settlement was set aside. It was held that the absence or presence of independent advice was a factor to which reference may legitimately be made in determining whether the plaintiff thoroughly comprehended and entered into the settlement deliberately and of her own free will. In that regard, Street J said of the role of the solicitor:[189]

[He] was, I accept, most careful to read the document through, and to invite questions of the plaintiff. But it was not textual advice upon the engrossment which was of prime importance in this regard: rather, it was advice on the more general topic of whether a settlement should be entered into at all, and, if so, the general nature of the settlement. (emphasis added)

In circumstances of an antecedent relationship of ascendancy or influence on the part of the donee and corresponding dependency or trust on the part of the donor, the question is not whether the donee knew what she was doing, but how the intention to make the gift was produced. In Huguenin v Baseley,[190] the donor, a widow who had recently arrived in England with no friends or relatives there and no knowledge of business affairs, entrusted the management of certain estates that she had inherited to a clergyman. She subsequently settled upon the clergyman a voluntary settlement of property, which was drawn by the clergyman's solicitor. In proceedings to set aside the settlement, Lord Eldon accepted the defendant's argument that the widow had intended to gift him the property. However, his Lordship said, in effect, that given the existence and nature of the antecedent relationship, the question remained whether the donor widow had 'all that care and providence ... placed [a]round her' before making the gift which the donee would be bound, in the circumstances of their relationship, to exert on her behalf.[191]
Whilst, in the context of a gift from a parent to a child, the relationship of parent and child is not a recognised category of presumptive influence, the relationship in a particular case may nevertheless be such that undue influence is presumed. Spong v Spong[192] is an example. In that case, there was a gift of real property by a father to his son in circumstances where (1) the father was of advanced years and in an extremely weak and decrepit condition of body and mind, including suffering from senility,[193] (2) the father executed the transfer the day after his wife of many years had died, and the material discussion concerning the gift to his son occurred at a time when his wife 'was lying dead at [the] father's house',[194] (3) the father had given the son the management of his banking and business affairs,[195] and (4) the son's evidence was that his father was not in a position to manage his own affairs.[196] The gift was also made without independent advice to the father.[197]
Griffith CJ said:[198]

It seems to me that the words used by Sir John Leach VC in Griffiths v Robins are exactly applicable:- 'She' (the donor) 'had entire trust and confidence in them' (the persons who induced her to execute the deed of gift); 'and it may be stated that they were the persons upon whose kindness and assistance she depended. They stood, therefore, in a relation to her, which so much exposed her to their influence that they can maintain no deed of gift from her unless they can establish that it was the result of her own free will, and effected by the intervention of some indifferent person'.

Also in Spong, Rich J said:[199]

Courts of equity have exercised jurisdiction over transactions between persons standing in certain fiduciary relations from which undue influence is inferred. Specific instances of this principle are well known. But the Courts have refrained from defining what constitutes such a relation. 'There are endless variations of the fiduciary position which do not fall under any strictly defined head. Some of those relations are continuing, others temporary; but in all the question is, whether the person parting with property by way of gift, or entering into a contract, had a full and free opportunity of judging for himself': Notes to Huguenin v Baseley. (emphasis added)

In Johnson, Dixon J referred to the categories of relationship of presumptive undue influence, and said:[200]

But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. (emphasis added)

The fiduciary characteristics of a relationship of presumptive undue influence were referred to by the High Court in Jenyns v Public Curator (Qld),[201] in a case in which the son was the donee of a gift of shares by his mother in a company carrying on a business in which the son had acted as manager. In that case, Mrs Jenyns, born in 1865, established and conducted a 'matriarchal business' in corsets and surgical appliances. By her energy and capacity she built up the business into a profitable enterprise of some size. However, from an early time in her life, Mrs Jenyns' mind seemed to have been unusually preoccupied with the place that divine guidance might have in the practical affairs of life. As she grew older she became accustomed to claim that she acted under the special protection and direction of Providence and when she became an old woman she represented even her most trivial desires as manifestations to her of the 'divine will'. She also 'turned to rum and whisky' and, having visited China, used opiates. Nevertheless, for a long period of her life, her professed reliance upon direct heavenly intervention in her business and family affairs was not inconsistent with a shrewdness and capacity in the control she exercised over both her business and her children (who included Harold, John and Herbert), who took some part in the business.[202] Over the years, one son and then another had her confidence in managing the business. Ultimately, John fell more and more into disfavour and correspondingly the cause of Herbert was prospering with her. In June 1945, pursuant to a divine decision, John was dismissed and Herbert was invested with the management of the business. In 1946, Mrs Jenyns wrote to Herbert saying that she wanted him to help her form the business into a company and requested him to get a solicitor for that purpose. Under the proposal then in contemplation, Mrs Jenyns was appointed by the articles of association to be governing director and chairman of directors during her life. On her death, Herbert was named to succeed her as governing director with like powers. The articles provided for the appointment by the Board of a managing director for a term of five years, but appointed Herbert by name as the first managing director for the five years. The agreement for the sale of the business fixed a consideration of £42,000 to be satisfied by the allotment to Mrs Jenyns of 42,000 paid up shares in the company, of which it was proposed that Mrs Jenyns retain only half and transfer the remaining half of the shares by way of gift to Herbert (13,665 shares), a daughter, Sadie (3,200 shares), Harold (3,200 shares) and the remainder to employees.
In Jenyns, the plaintiff attacked the validity of the transfer to Herbert of the 13,665 fully paid shares in the company. The statement of claim alleged that (1) Herbert, at the material times, stood in a confidential and fiduciary relationship to his mother, (2) Herbert was manager of the business and had gradually assumed control and conduct of her affairs in relation to the business, (3) Mrs Jenyns was dependent upon Herbert to such an extent that she was not a free agent and the transactions were not the outcome of her free volition, (4) Mrs Jenyns was induced to enter into the transactions by the undue influence of Herbert and by the unconscientious use of his fiduciary position by taking unfair advantage of her mental weakness and her reliance upon him, (5) Mrs Jenyns did not understand the transactions and was mentally incapable of forming a proper judgement and did not realise the extent of the disposition made by her, its effect upon her financial position, or the fact that she was obliged to assume obligations in respect of gift duty and otherwise, and (6) Mrs Jenyns had received no independent advice.[203]
The trial was heard by a judge and jury - a matter the subject of criticism in the High Court.[204] The jury found that the transfer of the shares to Herbert was the result of a free exercise of the independent will of Mrs Jenyns, but nevertheless found that she did not sufficiently understand the transactions.[205] The trial judge entered judgment for the plaintiff and made declarations to the effect that Herbert held the shares as trustee and was accountable for all benefits derived from such holding of the shares.[206]
An appeal to the High Court was allowed. The High Court said that the jury's finding that Mrs Jenyns did not sufficiently understand the transactions must be taken as a finding that she failed to grasp (1) the consequences that would ensue to her financially from the course she was taking in view of her tax position, and (2) the difference between the position of a governing director owning only half of the shares in a company and the position of a sole proprietor of a business.[207] The High Court said:[208]

This reduces the case to the question whether a donee standing in a relation of confidence to the donor cannot retain a gift made by the donor, notwithstanding that she has capacity to understand the transaction and acts in the free exercise of her independent will (having independent advice) if she fails to appreciate or realize the financial implications and detriment to herself the gift involves.

Now in answering this question it must not be forgotten that the expression 'relation of confidence' does not describe a category possessing fixed and uniform characteristics. The expressions 'relation of influence', 'relation of confidence' and 'fiduciary relation' are often used as interchangeable. They are not, however, necessarily the same or coextensive in their application. But it is worthwhile quoting in reference to the expression 'relation of confidence' used in this case what Fletcher Moulton LJ said in In re Coomber; Coomber v Coomber with reference to the expression 'fiduciary relationship', for it is true also of the former expression. His Lordship said: 'It is said that the son was the manager of the stores and therefore was in a fiduciary relationship to his mother. This illustrates in a most striking form the danger of trusting to verbal formulae. Fiduciary relations are of many different types; they extend from the relation of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the Courts have again and again, in cases where there has been a fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. There is no class of case in which one ought more carefully to bear in mind the facts of the case, when one reads the judgment of the Court on those facts, than cases which relate to fiduciary and confidential relations and the action of the Court with regard to them'. (emphasis added)

The High Court returned to the facts of Jenyns and said:[209]

We are not here dealing with any of the traditional relations of influence or confidence ‑ solicitor and client, physician and patient, priest and penitent, guardian and ward, trustee and cestui que trust. It is a special relationship set up by the actual reposing of confidence. It is therefore necessary to see the extent and nature of the confidence reposed and whether it involved any ascendancy over the will of the person supposedly dependent on the confidence. (emphasis added)

In allowing the appeal, the High Court said:[210]

The finding that she did not sufficiently understand the transaction, relating as it does to matters of general reasoning and business wisdom and acumen, as opposed to facts known to the donee in virtue of his position and not disclosed, is not enough by itself to invalidate the gift. The truth about the whole case is that the real complaint is not that shares were given to Herbert but that shares were not given to John. The reasons why they were not given to John were not concerned with any question of adequate comprehension of the effect of the transaction. In the view this judgment adopts the learned judge ought not to have granted relief to the curator against the transfer of the 13,665 shares to Herbert, still less against the allotment of the one additional share subscribed for. (emphasis added)

The case of In re Coomber; Coomber v Coomber,[211] referred to by the High Court in Jenyns, was a case in which Mrs Coomber, the widow of a man who had carried on a business as a retailer of beer, executed an absolute assignment of the lease of the ale stores and the goodwill of the business, as well as the licence for selling beer on the premises, to one son, Harry Coomber. Harry had managed the business on behalf of his mother and also collected for her the rents of certain houses which had belonged to her husband. When Mrs Coomber died, another son, as plaintiff, sought a declaration on behalf of the residuary legatees under Mrs Coomber's will that Harry held the business assets gifted to him on trust for the beneficiaries of the residuary estate. He alleged, in effect, that as Harry had been the manager of the business and the agent for his mother in collecting rents et cetera, he was in a fiduciary relationship with Mrs Coomber, and that he had not discharged the onus of showing that the gift to Harry had not been the result of undue influence.
The trial judge dismissed the plaintiff's claim on the basis that Harry had rebutted the presumption that had arisen. The Court of Appeal dismissed the appeal, but moreover held that, in the circumstances, a relationship of presumptive influence had not been established. Cozens‑Hardy MR said 'I do not think it is true to say that any confidential relation between donor and donee is sufficient to set up a presumption against the validity of the gift'.[212] Fletcher Moulton LJ made the observations referred to by the High Court in Jenyns (see [116<[213]] above).213 His Lordship, in referring to the facts of the[214]se, said:214

In my opinion there was absolutely nothing in the fiduciary relations of the mother and the son with regard to this house which in any way affected this transaction. It is possible that there might have been a transaction between the son and the mother, with regard to a purchase of this leasehold property, in which the son would have had to shew that he had given her full information in every possible way as to the value. But in this case the gift was not based on value in any way at all. The mother knew the house, she had lived in it for twenty years, and knew the son was managing it. She meant it to go to the son whatever its value was; and that wish of hers is not shewn to be brought about in any way by any - I will not say improper conduct of the son, but any - conduct which put any responsibility upon him in the matter. For these reasons I think that no objection whatever to this transaction can be based on the fact that the son managed the business.

Buckley LJ said that the equitable doctrine of undue influence 'does not rest upon the existence of a fiduciary relationship whatever be its nature. It rests upon the existence of such a fiduciary relationship as will lead the Court to infer undue influence ...'.[215]
Proof of a relationship of influence will not necessarily be inferred merely from the existence of an agent - principal relationship. Whether in that context there is a relationship of influence will still depend upon a consideration of all the circumstances.[216]
The same circumstances can result in the conclusion that the plaintiff (1) has been subject to undue influence, and (2) was in a position of special disadvantage for the purposes of the doctrine of unconscionable conduct. Thus, a finding of undue influence may (depending on all the circumstances) establish that the plaintiff was at a special disadvantage for the purposes of unconscionable conduct. Although the doctrines will overlap, they have different spheres of operation, and there will be many circumstances in which a position of special disadvantage may be established without proof of undue influence.[217] In Commercial Bank of Australia Ltd v Amadio,[218] Mason J emphasised the difference between unconscionable conduct and undue influence, as follows:

In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

Approach to appellate intervention

In Lee v Lee,[219] Bell, Gageler, Nettle and Edelman JJ said:

A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'.

The reference to 'secondary facts' in the third sentence of that passage was footnoted in Lee[220] to Kakavas v Crown Melbourne Ltd[221] and Thorne.[222]
In Thorne, the plurality observed that an assessment of the willpower of a person is not an exercise of mathematical precision.[223] Their Honours also said:[224]

In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a 'close consideration of the facts ... in order to determine whether a claim to relief has been established'. On appeal, it is also essential for the appellate court to scrutinise the trial judge's findings and assess any challenge to the trial judge's conclusions in light of the advantages enjoyed by that judge.

In Kakavas v Crown Melbourne Ltd, quoting with approval from the judgment of Dawson, Gaudron and McHugh JJ in Louth v Diprose, this Court described how the 'proof of the interplay of a dominant and subordinate position in a personal relationship depends, "in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties"'. As Rich J said, in the context of a claim to set aside a transaction, the advantage of the trial judge 'of seeing the parties and estimating their characters and capacities is immeasurable'. These matters led Toohey J, in Louth v Diprose, to say that the 'formidable obstacles' involved in an attack on findings of fact by a trial judge 'may be enhanced where issues of undue influence and unconscionability are involved'.

Related to the fact finding advantage of the trial judge is the evaluative nature of the judgment involved in determining whether the vitiating factors have been established. For example, in undue influence there will be questions of evaluative judgment involved in assessing whether the extent to which a person's will has been subordinated to another's is sufficient to characterise the person as lacking free will. (emphasis added)

Appellate caution, where it is required, has particular significance where 'the interests of individuals are divergent and conflicting, where personal feeling is acute ... [and] [w]here so much depends upon the character, personal motives and interests of individual persons ...'.[225]

Disposition - undue influence Ground 1

Georgina's general contention that the judge treated Georgina's claim as based on actual undue influence, and that he failed to consider the claim based on presumed undue influence, is to be determined by reference to the proper construction of the primary decision. When the judge's reasons are read as a whole, as they should be, Georgina's complaint is not made out. In particular:
1. The judge referred to the observations of the High Court in Thorne in relation to proving the existence of undue influence, including through proof of a presumption of influence.[226]
2. The judge referred to a leading High Court decision on presumed undue influence (Buttress).[227]
3. The judge referred to the pleaded case of presumed undue influence and made findings with respect to it.[228] The findings included the statement (expressed colloquially but emphatically) that the pleaded allegations of presumed undue influence amounted, on the judge's assessment of the evidence, 'to no more than "a hill of beans"'.[229]
4. The judge also contrasted the circumstances in Buttress giving rise to the presumed influence in that case, with his findings on the case alleged by Georgina.[230]
Whilst the judge did not explicitly go on to state in the primary decision that he rejected Georgina's claim of an antecedent relationship of influence, that was the effect of his findings of primary fact and the inferences that he drew from those primary facts. Properly construed, when the primary decision is read as a whole, the judge concluded that no relevant antecedent relationship of influence had been established.
Further, although the judge did not (obviously) see Joseph give evidence, the judge was well placed to assess the family 'dynamics',[231] and the 'characters and capacities' of the family members,[232] having heard evidence from each of Joseph's children (Georgina, Mario, Carmen and Tony), Joseph's son‑in‑law (David), three of Joseph's grandchildren (Holly, Carly and Jason), Joseph's niece (Sylvia) and Joseph's brother‑in‑law (Uncle Angelo). His Honour also heard evidence from Joseph's parish priest as to his interactions and involvement with his church community.[233] A relationship of influence is ultimately an inference of fact involving an evaluative judgment, and caution in relation to appellate intervention is appropriate in accordance with the principles referred to in [124] ‑ [127] above. As explained below, Georgina has not demonstrated that the judge's evaluative conclusion was not open on the unchallenged findings of primary fact and the uncontested evidence.
Moreover and in any event, in our view the correct conclusion, on the unchallenged findings of primary fact and the uncontested evidence is that an antecedent relationship of presumed influence had not been established. The appellant accepted that the appeal must fail if the primary facts found by the judge do not, in this court's view, support that conclusion.[234] On the unchallenged findings of primary fact and the uncontested evidence, the correct conclusion is that Georgina had not established that Joseph's judgmental capacity must have been 'markedly substandard' at the time of the transfer.[235] In summary, that is because, as at the date of the transfer:
1. Although Joseph had certain medical conditions (not uncommon in men of an advanced age), he was not enfeebled physically or intellectually.
2. The contemporaneous medical evidence of Dr Sciberras was that Joseph was both cognitively and emotionally capable of making decisions concerning his property.
3. Although Joseph trusted Carmen and Tony, the trust was grounded in ordinary family ties, and did not grow out of any special relationship of influence that Carmen and Tony had, or held, over Joseph.
4. Joseph, although not a social man by nature, had not (in any relevant sense) withdrawn from the world, nor had he placed himself in, or ended up in, a position of dependence upon Tony and Carmen in the requisite sense.
5. Although Joseph had grieved the death of Josuarda, he was not overborne by grief or otherwise susceptible on that account to the malign influence of others.
6. The gift of the Bassendean property to Carmen and Tony was not inexplicable. It was made for the ordinary motive of benefitting two of his children. Moreover, the gift was made deliberately to the exclusion of two other children at a time when (without seeking to explore the rights or wrongs on either side) those two children had ceased enjoying a good relationship, or indeed any meaningful relationship, with their father.
7. Whilst Tony and Carmen assisted their father with some of the quotidian aspects of life (including providing an email address for communications), the assistance is explicable on the basis of filial duty and affection, and is not a reflection of a relationship of ascendancy on the part of Tony and Carmen and dependency on the part of Joseph.
In relation to the particular arguments advanced by Georgina in [91] above, as to the first of those matters (in [91.1]), the gift of the Bassendean property is explicable by ordinary motives and the relationship of the parties. It is not uncommon for a parent to make gifts, even substantial gifts, to an adult child. Also it may be noted, although the point is not strictly necessary for the purposes of this decision, that there is a presumption of advancement recognised by the law in connection with the parent/child relationship, which should not 'give way t[236]light circumstances'.236 It is also explicable in this case by ordinary human motives in that the judge found, without challenge, that Joseph had deliberately resolved that the Bassendean property should not go to Georgina and Mario, but, rather, to Tony and Carmen. The evidence of Georgina and Georgina's husband, David, was to the effect that Joseph made decisions carefully, having tho[237]t everything through.237 The evidence of Georgina and of her son, Jason, was that Jo[238]h 'had his own mind'.238 Also, Georgina accepted that Joseph was 'a pretty determ[239]d sort of character',239 and Mario said that he was a man 'who had very[240]ear views on things'.240
Further, the idea of possibly excluding Georgina from acquiring an interest in the Bassendean property arose around the same time (early September 2011) as Joseph was intending to make a will and to give Tony and Carmen an enduring power of attorney. Joseph consulted Mr Levitan about the prospect of excluding both Georgina and Mario by way of inter vivos disposition.[241] He subsequently executed the will on 25 September 2011, which explicitly excluded Mario. The execution of the will on those terms is explicable on the basis that Joseph had not finally resolved, at that time, to exclude Georgina. His later, firm decision (as reflected in his statutory declaration[242]) to exclude Georgina could have been effected by either amending the will or transferring inter vivos the Bassendean property to Carmen and Tony. The latter course is explicable on the basis (at least) that Joseph evidently understood (rightly or wrongly), including based on his dealings with Strand Conveyancing, that he would have a right to occupy the property 'rent free for all the days of [his] life or until [he decided] to relinquish the tenancy'.[243]
Had Joseph consulted a lawyer in February 2012 (as opposed to a conveyancing firm), he would, no doubt, have obtained a registered (legal) lease for life.[244] The contention that Joseph acted imprudently because he may have needed equity in the property to provide for nursing home accommodation at some point in the future is not a compelling one in the circumstances. On the judge's findings, Joseph was capable and competent of managing his financial affairs,[245] knew that he was gifting the property to Carmen and Tony, and intended to vest the property in them. He was not in a physical or mental condition where nursing home accommodation was in prospect, and he enjoyed good relationships with Carmen and Tony who, in the ordinary course, would not be expected to allow their father to become homeless or lacking in medical care. Had Joseph obtained a registered lease for life, it is unlikely, in the circumstances of this case, that the transaction would have been characterised as an improvident one. The failure to obtain a registered lease was, ultimately, a failure to properly give effect to his intentions, rather than an indication that the gift to Tony and Carmen was, itself, improvident. Like the plaintiff in Jenyns, Georgina's real complaint is not that Joseph gifted the property to Carmen and Tony, but rather that she herself did not share in the gift of the property.[246] (Mario, also excluded, makes no such complaint.)
Further, the judge did not find that the gift to Tony and Carmen was 'harsh or unwise'. The finding, properly understood and when the primary decision is read as a whole, is to the effect that, even if 'viewed externally', the decision to gift the property was harsh (to Georgina) or potentially unwise (in the sense of favouring some children over others and potentially creating further divisions within the family from the grave, as it were), it was nevertheless Joseph's wish and (subject to the law) he could do with the property as he pleased.[247]
The argument in [91.2] above raises a false dichotomy in the particular circumstances of this case. The relationship between undue influence and unconscionable conduct has been outlined in [123] above. In this case, the facts pleaded by Georgina in support of the allegation of an antecedent relationship giving rise to a presumption of undue influence, were also the facts pleaded as constituting a special disadvantage for the purposes of unconscionable conduct. Georgina failed to prove those facts. The facts alleged by Georgina (see [79] above) were, in substance, that:
1. Joseph was old and infirm.
2. Joseph had 'substantially withdrawn from the family', apart from Tony and Carmen.
3. By reason of 1 and 2, Joseph had become 'emotionally dependent' on Tony and Carmen.
4. After Josuarda's death, Joseph became 'more dependent' on Tony and Carmen, in that they assisted with his meals, drove him to places, made and attended appointments, instructed solicitors on his behalf, dealt with his Telstra account, dealt with and managed his Centrelink entitlements, and paid legal bills.
5. Joseph had appointed Tony and Carmen as executors of his will and had given them an enduring power of attorney.
As to the first of those matters ([136.1] above), the judge rejected that characterisation by Georgina of her father. The unchallenged findings include findings to the effect that Joseph was physically active, looked after himself, cleaned and shopped for himself, drove for himself, conducted rational conversations with family, friends and acquaintances (including after Mass, which he attended mos[248]ornings),248 and was self‑sufficient and physica[249] capable.249
As to the second ([136.2] above), there had been a rift with Mario in 2008 and, in August 2011, there was an uncontested restraining order in place. The relationship with Georgina was close until[250]out 2011.250 However, after Josuarda's death and prior to 14 June 2011, Georgina had limited contact with[251]r father.251 After the incident on 14 June 2011, Georgina's evidence was that, whilst between August 2011 and March 2012 she tried unsuccessfully on occasions to telephone her father, she did not visit or speak to her father over the next four years, until she saw him in hospital a couple of days bef[252] he died.252 On the other hand, Carmen and Tony remained in touch with Joseph, as did Carmen[253]children.253 Also, Joseph maintained an apparently rewarding relationship with his niece, Sylv[254]Ashcroft.254
Georgina, through her counsel, cross‑examined Tony and Carmen to the effect that it had been incumbent upon them to take steps to repair the relationship between Joseph on the one hand, and Mario and Georgina on the other.[255] Tony's evidence included the following:[256]

One last question, I suppose. You were aware of the distance that had developed between your father [Joseph] and your sister, Georgina?---I was aware of it?

Yes?---Yes, absolutely.

Yes. And you knew that that was upsetting to [Joseph]?---Absolutely.

Yes?---She abandoned him, her whole family.

Well, you knew it was upsetting to [Joseph] rather than you putting some tag on it?---Well, she did abandon him.

You would agree with me that it would have been in [Joseph's] best interest for someone to help bring them back together?---And I made a small effort in 2013, when I suggested to [Georgina] that, maybe, you know, hey try and, you know, give [Joseph] a call or make up or something and that's when she - - -

You didn't do anything in the early days when [Joseph] was suffering significant grief?---Well, no. Someone had to be around and help [Joseph] basically and - and be there for [him] - - -

All right?--- - - - and, of course, because he - the other two children weren't. Yes. We were just trying to help him through it.

And I'm going to suggest to you that, in fact, you took steps to distance Mario and Georgina from seeing your family?---Most definitely not. I'm a family orientated man just like [Joseph].

The judge evidently considered that Georgina's absence of contact with her father over the ensuing years could not be attributed to any relationship of influence by Carmen and Tony. The judge did not find that Joseph had 'substantially withdrawn from the family' apart from Tony and Carmen. Georgina has not demonstrated any error by the judge in failing to infer that he had.
As to the third of those matters ([136.3] above), it follows from the preceding observations that it was open to the judge to conclude that Georgina had not established her consequential plea that Joseph had become 'emotionally dependent' on Carmen and Tony. Moreover, the judge accepted, without challenge in this appeal, the specific and contemporaneous evidence of Dr Sciberras to the effect that Joseph was 'capable both cognitively and emotionally in deciding hi[257]wn will'.257
The fourth of those matters ([136.4] above), suffers from the defect that it presupposes emotional dependency on the part of Joseph prior to Josuarda's death, which then increased after her death. The premise had not been established. Further, the judge accepted that Tony and Carmen had assisted Joseph with certain legal and financial affairs, such as dealing with his pension entitlements via Centrelink. Joseph had also been assisted by them in travelling to meet Mr Levitan and going about the steps to draw up and obtain his final will in September 2011. The judge accepted that Joseph 'fully trusted' Carmen and Tony. He also accepted that 'Joseph reposed trust and confidence in Carmen and Tony and was affectionate towards them, enjoyed their company and gratefully accepted their assistance from time to time with daily var[258]s tasks'.258 The judge, having assessed the evidence as a whole, did not, however, accept Georgina's characterisation of Joseph as being dependent on Tony and Carmen in any rel[259]nt sense.259 His Honour said that Joseph could not be characterised as being 'vulnerable at the hands of Carmen and Tony as regards his financial[260]cisions'.260 There is no error disclosed in those conclusions.
As to the fifth of those matters ([136.5] above), Tony and Carmen had been appointed as executors of the penultimate will, and had been given an enduring power of attorney on 25 January 2011. The relevant instructions had been given to Mr Levitan in December 2010, at a time when (albeit toward the end of the period in which) Joseph and Georgina enjoyed a good re[261]ionship.261 In other words, Joseph's instructions concerning his executors and an enduring power of attorney were not coloured by ill‑favour towards Georgina generally or more specifically by the incident with Georgina in June 2011, or by the incident with Mario in August 2011. There is no doubt that in late 2010/early 2011, Joseph trusted Tony and Carmen to attend to his testamentary affairs and, it may be inferred, his affairs prior to death in the event that he was rendered physically or mentally incapable of managing his own affairs. It is in the nature of families that a child, or some children, but not others, will be entrusted with formal legal undertakings of that nature. Arrangements of that kind are common and it was open to the judge to conclude that they were not reflective of a relationship of dependency on the part of Joseph and ascendancy on the part of Carmen and Tony.
The argument in [91.3] above is largely addressed by the matters referred to above. Also the judge expressly found, without challenge, that 'Joseph had faced and dealt with his grief and he had stoically carried on. Joseph was not a wi[262]ng lily'.262
As to the argument in [91.4] above, the judge did not find that, and the evidence as a whole was not to the effect that, Joseph was in a position of dependency wholly or partly because of his hearing difficulty. Tony's evidence as to his father's hearing difficulty (to which Georgina has referred) included the following in the context of his cross‑examination in relation to the transfer of the Bassendea[263]roperty:263

CLAVEY, MR: Now - right. Now, can I briefly discuss with you Strand [Conveyancing]. We know from the file it's the case that Strand [Conveyancing] acted for your father in relation to various property purchases in the Mandurah area?---[Joseph] used Strand [Conveyancing], yes.

Yes. And did you speak to Karen Low - I think, is the principal of Strand [Conveyancing] - about some of the transactions?---Karen Low is just a conveyancer, I believe.

Yes, but did you ever speak to her?---Yes, I did. Absolutely.

Did you speak to anybody else at Strand [Conveyancing]?---I don't recall.

Right. When it come [sic] to organising the transfer for [the Bassendean property] - - -?---Yes.

- - - did you deal with Ms Low in relation to that - or [Joseph]?---I did. I did deal with Ms Low. I didn't instruct them to do it, but I did deal with Ms Low.

Well, is it the case that you spoke to her over the telephone?---Well, once again, [Joseph] was hard of hearing. When it come [sic] to important telephone conversations, [Joseph] was concerned that he may get it wrong.

All right. All right. So if you were communicating something to Ms Low, you were saying to her what [Joseph] asked her to tell her. Was that right?---Under [Joseph's] instructions.

So what you were telling her was what [Joseph] was thinking - what he told you what he was wanting?---Can you be specific about something or?

All right. Well, I will in a minute. But if you spoke to - your position is - - -?---Yes.

- - - you spoke to Ms Low, as you did to Ms [sic] Levitan - - -?---Yes.

- - - to communicate to her what [Joseph] wanted to do?---If it was on the phone, I more than likely would have done because [Joseph] was hard of hearing.

All right. Jolly good. And it's for that reason that, for example, Mr Levitan was contacting you when he had to give some information back to [Joseph]. You were sort of like [Joseph's] agent, the go‑between communicating between [Joseph] and his solicitors or his settlement agent?---Well, it's - like I say, nearly - well, I would say nearly all times [Joseph] was with me, whether it be in his place or in Mandurah.

Right. That's fine?---And I told you the reason why.

So he would stand next to you. You would hop on the phone?---No. Look, we would be, probably sitting at the same table.

As to the argument in [91.5] above, the judge found in effect that, over the course of his life, including prior to Josuarda's death, Joseph was not a [264]ial man.264 It is inaccurate to suggest or imply that he was a man who, through emotional and physical frailty after his wife's death, had withdrawn from social contact in the period leading up to the transfer of the Bassendean property in 2012.
As to the argument in [91.6] above, it is not a fair characterisation of the facts to contend, as Georgina does using the passive voice, that 'Joseph had become isolated' from Mario and Georgina. Heated words were exchanged between Mario and Joseph in August 2011, following which Joseph had obtained a restraining order against Mario in August 2011, to which Mario had consented. Georgina chose not to visit her father after June 2011. These were deliberate decisions which affected familial relationships over the ensuing years. Joseph did not 'become isolated', and maintained contact with other family members. There was evidence, for example, that, in addition to Carmen and Tony, he maintained contact with Carmen's daug[265]r Carly,265 Georgina'[266]on Jason266 and Joseph's niece Sylvi[267]shcroft.267 . Also, it is not true that Joseph only had contact with Carmen and Tony after August 2011 in relation to financial matters. Joseph communicated with Mr Levitan and Strand Conveyancing in relation to his financial affairs, and the Bassendean property in particular, after August 2011. He also saw another solicitor about the transfer and powers of attorn[268]in 2013.268
As to the matter in [91.7] above, the judge accepted that Tony had assisted his father in relation to the restraining order. There was no finding as to the nature and extent of the assistance. The judge evidently did not find, however, that Tony's assistance in relation to the restraining order reflected a relationship involving ascendancy by Tony and dependency on the part of Joseph. Tony's evidence in cross‑examination on the topic does not reveal any concessions which would support a finding of a relationship of influence in the requi[269]e sense:269

And how did he fill out the application form?---There was a - well, I remember being in the court and there was advocate. I think it's called an advocate - - -

Yes?--- - - - who come [sic] and did assist [Joseph].

And did you give the instructions to the advocate on [Joseph's] behalf?‑‑‑Definitely not.

All right. Now, yesterday - - -

KENNETH MARTIN J: Sorry. Before you leave that, was there a court hearing in front of [a] magistrate to grant this?---Yes. Yes, there was. Yes, there was.

All right. And you were there for that?---Absolutely.

And at the end of that the magistrate made [a] violence restraining order against Mario?---From - yes. Yes. Yes.

All right. Thank you.

CLAVEY, MR: It has been a long time since I've dealt with one of those applications. The - - - ?---Sorry. If I could - - -

Did you speak for [Joseph] at that hearing?---No.

And Mario wasn't present at that hearing, was he?---I can't recall. I don't think so. No.

No. Mario just conceded the application and didn't contest it. Is that correct?---Mario accepted the fact. Yes.

Well, he didn't contest the application?---Well, he accepted it. He signed it.

...

You put it - you suggested that [Joseph] take the VRO out against Mario?---Most definitely not.

Well, you were there with him to help him get it?---That doesn't mean I suggested it. I did not suggest it.

Did you take him to the Mandurah Court to get it?---No. [Joseph] and I went together.

Right. So you took him - you went with him to the Mandurah Court?---Yes.

And you were there with him when he got the VRO application?---I was present there. Yes.

Yes. Well, I'm going to suggest to you that that is something that you put into [Joseph's] mind?---Most definitely not. [Joseph] ... was a very strong, stubborn man, and that was his - his decision totally.

...

And he was a family man?---He was. He was.

And was he someone who sought to protect his family interest and his children?---Yes, absolutely. He would forgive, but a son [Mario] who threatened to kill him, that's a little different. How can you forget something like that?

As to the matter in [91.8] above, although the judge regarded the failure by Carmen or Tony to tell the other siblings of the new telephone number in September 2013 as 'very curious', his Honour did not find that this was attributable to an intention on the part of Tony or Carmen to isolate Joseph from Georgina (or Mario). The change occurred some 18 months after the transfer of the Bassendean property. Joseph's telephone number was cancelled and a new number obtained after he had been receiving nuis[270]e calls.270 Moreover, for her part, Georgina did not go and see her father following the incident on 14 June 2011 or ever seek to ascertain his new telephone number. Georgina's absence of contact with her father after 14 June 2011 preceded the change of the telephone number by around two and a quarter years. The change in telephone number in September 2013 is not evidence of Joseph having withdrawn from Georgina (or Mario) under the influence of Carmen and Tony in the period leading up to the transfer of the Bassendean property (or at all). No error is disclosed
As to the arguments in [91.9] and [91.10] above, they are addressed in [132] ‑ [149] above.
As to the arguments in [91.11] above, the uncontested facts in relation to the transfer of the Bassendean property are set out in [45] ‑ [50] above. It is to be accepted that the attendance of Carmen and Tony with Joseph at Mr Levitan's office, the provision of the draft will by email to Carmen, and Tony's communications with Mr Levitan on behalf of Joseph might, depending on an assessment of that evidence in the context of all the other circumstances, point towards a conclusion that Tony and Carmen occupied a position of influence over Joseph.
On the other hand, those events might also be explicable on the basis that Tony and Carmen were there to assist and support their father out of filial duty and affection, unconnected with any relationship of influence. That is particularly so where (1) Joseph apparently had no computer for email communications, (2) there was evidence accepted by the judge that Joseph was not a mentally and physically enfeebled old man unable to look after himself or his financial affairs, and (3) there was evidence (from Mr Levitan's file note) that Joseph had contemplated, for reasons which evidently weighed on his mind as significant, deliberately excluding Georgina (and Mario) from sharing in the Bassendean property. Further, as noted earlier, the judge specifically accepted, without challenge in this appeal, the evidence of Dr Sciberras that Joseph was 'both cognitively and emotionally' capable of deciding his own will and fully capable of giving an enduring power of attorney.[271] Moreover, the judge had the benefit of hearing the evidence as it unfolded and considering it as a whole. No error is shown.
The same observations apply to the argument in [91.12] above. A statement of that kind by Joseph was to be assessed in the context of the evidence as a whole. It is not to be treated as an admission of dependency in the requisite sense as against Carmen and Tony.
As to the argument in [91.13] above, the judge said that '[w]hy Joseph [transferred the Bassendean property] in his life, after explicitly naming Georgina as a one‑third residuary beneficiary in his final will ... must remain something of [272]ystery'.272 However, that was followed by a discussion of the evidence, and that passage of his Honour's reasons was concluded with further findings to the effect that (1) in early September 2011, Joseph was 'seriously considering' gifting the Bassendean property to Tony and Carmen in his lifetime, (2) Joseph appeared at one point to have 'taken a step back' from that, but (3) in the next six months, Joseph 'went about implementing his transfer[273]rategy'.273 In relation to the 'step back', the judge accepted that Carmen and Tony had told Joseph around 13 September 2011 that he needed to think about the propose[274]ransfer.274 Further, the judge found that the transfer strategy involved a deliberate decision to exclude Georgina from sharing in [275]t asset.275 It is not clear why his Honour regarded the transfer as 'something of a mystery', having regard to these underlying findings of fact. Nevertheless, the reference at [206] of the primary decision, read in the context of the primary decision as a whole, does not assist Georgina in showing that the judge's ultimate evaluative decision was not open, or was incorrect.
As to the arguments in [91.14] ‑ [91.16] above, the retainer of Strand Conveyancing is referred to in [46] ‑ [47] above. Also, in this appeal, Georgina contends, and it may be assumed without deciding, that contact wa[276]irst made with Strand Conveyancing by Tony.276
The Strand Conveyancing file does not show that Tony, to the exclusion of Joseph, was in contact with Strand Conveyancing. At the very least, Joseph saw Ms Leon of Strand Conveyancing separately from Tony and Carmen in relation to the statutory declaration.[277] In relation to the file note referred to in [91.15] above, it was put to Tony in cross‑examination, by counsel for Georgina, that Mario had had a discussion with Tony to the effect that if Mario was left out of the will, he would challenge the will after J[278]ph died.278 Whilst the judge made no finding as to that particular matter or as to the meaning of the file note generally, it cannot be accepted that the instruction recorded in the file note necessarily lacks logic. It is consistent with a concern that Mario might challenge the will. The significance of the evidence referred to in [91.14] ‑ [91.16] above was to be assessed in the context of the evidence as a whole. The observations made in [132] ‑ [154] above are equally pertinent here. No error is disclosed.
It follows from the foregoing that ground 1 should be dismissed. It is unnecessary to consider grounds 2 and 3 as success in the appeal was dependent upon succeeding on each of grounds 1, 2 and 3.

The appeal against the costs decision

The judge concluded in the costs decision that Georgina should pay the costs of Tony and Carmen (1) up to 7 June 2018 to be taxed (if not agreed), and (2) after 7 June 2018 on an indemnity basis. The judge found, in effect, that Georgina had unreasonably rejected a 'Calderbank' offer made by letter from the solicitors for Carmen and Tony on 8 June 2018.[279] That letter was preceded by an earlier offer from Carmen and Tony by letter dated 16 February 2018. The offer in each of the letters was to the effect that Georgina be paid $50,000 out of the estate, inclusive of costs, with full cross‑releases.

Georgina's grounds of appeal and submissions

The appeal against the costs decision requires a very short extension of time. The application for an extension was referred to the hearing of the appeal.[280]
Georgina's grounds of appeal allege, in effect, that:[281]
1. The judge's discretion miscarried because he acted upon a wrong principle, namely that because the relationship between Joseph on the one hand, and Carmen and/or Tony on the other, was not one of the established categories of presumptive undue influence, Georgina necessarily had to prove the existence of actual undue influence. Further or alternatively, he mistook the facts, as Georgina's case was premised on the existence of an antecedent relationship of influence, notwithstanding that the relationship was not within an established category.
2. Further or alternatively, the judge's discretion miscarried in that his conclusion that Georgina's claim was never a case of arguable merit was plainly wrong and not reasonably open.
In relation to ground 1, Georgina contended, in effect, that:[282]
1. The judge's supplementary reasons on costs expressly perpetuate the (alleged) error in the primary decision that, because the relationship between the parties was not within an established category of presumptive undue influence, Georgina necessarily had to prove the existence of actual undue influence.
2. Georgina's substituted submissions and re‑amended substituted statement of claim at the time of trial[283] made it clear that her case was put on the basis of an antecedent relationship, such as to give rise to a presumption of undue influence.
3. To have concluded that Georgina's case was not arguable, it would have been necessary for the judge to find that it was not even arguable that the nature of the relationship was such as to give rise to a presumption of undue influence. However, the judge did not consider that issue. His Honour focused entirely on whether Georgina would be able to prove the existence of actual undue influence.
4. In so proceeding, he acted upon a wrong principle and also mistook the facts (ie, the nature of the case which Georgina advanced at trial).
In relation to ground 2, Georgina adopted and repeated her substituted submissions in the main appeal, and contended that if, contrary to her submissions in that appeal, the relationship was not such as to give rise to a presumption of undue influence or that Carmen and Tony rebutted that presumption, 'it simply cannot be said that [Georgina's] claim was not arguable'.[284]

The submissions of Carmen and Tony

Carmen and Tony contended that:[285]
1. The costs decision starts from the premise that Georgina had to prove actual undue influence in respect of the transfer of the Bassendean property. That starting point was in keeping with the judge's rejection of her case on presumptive undue influence.
2. In order for Georgina to rely on a presumption at trial, she needed to lead evidence that persuaded the court that the relationship was of a nature that it was reasonable to presume that the transaction was the result of influence exercised within that special relationship. That matter is addressed in detail in the submissions of Tony and Carmen in the main appeal.
3. For the reasons set out in the submissions of Tony and Carmen in the main appeal, there is no error in the judge's rejection of Georgina's case on whether there was a presumption of undue influence.
4. In relation to ground 2, once the presumptive case was rejected, Georgina had to prove actual undue influence if she was to succeed. It was plain from the approach of Georgina to the trial that her case solely rested on an acceptance by the court that there was a presumption of undue influence. Georgina did not attempt to prove that there was actual undue influence. Given that she did not see Joseph between June 2011 and September 2015, and her brother, Mario, had not seen Joseph during that time, the only means of proving actual undue influence was through third party evidence, of which there was effectively none.
5. Neither at 8 June 2018 when the offer was made, nor at any later time, did Georgina have any evidence to prove that Tony or Carmen exercised actual undue influence, or were in a relationship of the nature for which a presumption would arise. More significantly, the judge pointed out in the costs decision that Georgina's case was based on nothing more than a belief and hope, and was an action that ought not to have been commenced given the lack of evidence.[286]
6. Georgina's case was not arguable. It required the court to accept that Carmen and Tony were in a special relationship with Joseph, so that he was incapable of acting in his own best interests. Georgina never had any evidence to support that proposition.
7. In oral submissions, counsel for Tony and Carmen also submitted that Georgina's pleaded case as at 8 June 2018 was different from that ultimately before the judge at trial. The pleading as at 8 June 2018 was 'unclear' or 'less clear' than the pleading as it stood at trial on the question of undue influence, although it still included a presumptive influence claim.[287]

Georgina's statement of claim at the time of the Calderbank offers

The reasonableness or otherwise of Georgina's refusal of the Calderbank offers required consideration (amongst other things) of the pleadings as they stood at that time.[288]
Georgina's statement of claim as at 8 June 2018 was not the statement of claim as it stood at trial. As at the date of the Calderbank offers, Georgina's statement of claim was the pleading filed 21 March 2017 (2017 statement of claim).
The 2017 statement of claim pleaded (1) undue influence, (2) unconscionable conduct in the Amadio[289] sense, and (3) allegations to the effect that Carmen and Tony had wrongfully failed to account for moneys belonging to Joseph which were due to the estate, being certain proceeds of the sale of the Moat Street property and a cash amount of $200,000 in a 'locked drawer'.
Georgina's pleading was to the effect (relevantly) that:

Background allegations and undue influence

Tony and Carmen were the 'lawful' children of Joseph.[290]
Tony and Carmen were the joint executors of Joseph's will dated 20 September 2011.[291]
Tony and Carmen knew that the Bassendean property was the only property owned by Joseph at the date of the transfer.[292]
Joseph was 80 years of age, physically enfeebled and suffering from mild memory loss.[293]
Joseph spoke Maltese as his first language and had difficulties writing and comprehending English.[294]
Joseph had depended entirely on Josuarda before her death to perform all domestic duties, including meal preparation.[295]
Joseph depended on Tony and Carmen in relation to his financial affairs, in that he had depended upon Tony for several years to deal with Centrelink and to manage his pension entitlements, and had depended on Carmen for 10 years to pay all household and utility accounts.[296]
Following the death of Josuarda:

(a) Joseph was 'bereft and emotionally fragile';[297]

(b) Joseph was unable to live at the Bassendean property without assistance;[298]

(c) Joseph no longer had contact with Georgina or Mario, in that about two weeks after Josuarda's death he 'stopped speaking' to Georgina and the members of her family and, on 23 August 2011, he 'stopped speaking' to Mario and caused a violence restraining order to be served upon him;[299]

(d) Joseph saw no one, on a regular basis, other than Carmen and Tony, and became 'entirely socially dependent upon them';[300]

(e) Joseph became 'physically dependent' upon Tony and Carmen for the preparation of meals, medical treatment and managing his household;[301] and

(f) Joseph became 'entirely financially dependent' upon Tony and Carmen for the management of all financial matters.[302]

Carmen and Tony 'procured' the transfer of the Bassendean property, in that Strand Conveyancing were engaged by Tony and/or Carmen to prepare the transfer and the statutory declaration.[303]
By reason of the matters in points 1, 2, 7, 8(d) ‑ (f) and 9 above, Carmen and Tony were in a relationship of trust with Joseph and stood in a special relationship of influence over him.[304]
Carmen and Tony failed to recommend or assist Joseph in obtaining independent legal advice regarding the transfer.[305]
By reason of the matters in points 3, 10 and 11, Tony and Carmen 'had obtained psychological ascendancy' over Joseph.[306]
By reason of the matters in points 10 - 12, Tony and Carmen were in a position to exercise dominion over Joseph by reason of the trust and confidence he placed in Tony and Carmen.
'In the premise ... [the transfer] was procured by undue influence exercised by [Tony and Carmen] over [Joseph]'.[307]

Unconscionable conduct

The transfer was effected at a time when Joseph was in a position of special disadvantage in light of the matters in point 13 above.[308]
Tony and Carmen were aware of the matters in point 13 above and took unfair and unconscientious advantage of the opportunity created by the transfer, and their execution and registration of the transfer was unconscionable.[309]
Further or alternatively, by accepting the transfer with knowledge of the matters in point 13 above, Tony and/or Carmen acted unconscionably.[310]
Tony and Carmen were also aware that the transfer was contrary to the terms of the will.[311]
By reason of the fact that (1) the Bassendean property was Joseph's only property and (2) Joseph had not received independent legal advice, the transfer was so improvident that it could not have been made except because of the existence of a relationship with Tony and/or Carmen under which Joseph was at a special disadvantage.[312]

Failure to account

Tony and Carmen had access to and control of certain money (proceeds of the sale of Moat Street and $200,000 cash) belonging to Joseph before his death, as well as custody and control of such money belonging to Joseph after his death in their capacity as executors.[313]
Carmen and Tony failed to account to the estate for such money belonging to Joseph.[314]

Evidentiary materials as at 8 June 2018

It appears that Georgina had obtained the following affidavits (originally in response to the defendants' summary judgment application) as at 8 June 2018:
1. Georgina's affidavit sworn 1 August 2017.
2. David Shephard's affidavit sworn 1 August 2017.
3. Jason Shephard's affidavit sworn 26 July 2017.
4. Mario's affidavit sworn 1 August 2017.
It appears that Georgina's affidavit of 1 August 2017 was not materially different from the affidavit sworn 31 October 2018 upon which she relied at trial. Georgina also relied at trial on the second, third and fourth affidavits referred to above.
Also, prior to 8 June 2018, subpoenas had been issued (relevantly) to (1) Strand Conveyancing, and (2) ANZ Bank, Telstra, Mr Levitan and Mr Brook. The subpoenas were returnable on 21 July 2017 (in the case of Strand Conveyancing) and 27 April 2018 (in relation to the other subpoenas). Accordingly, it may be inferred that these materials were available as at 8 June 2018, including Mr Levitan's file notes and the statutory declaration with the annexed medical reports of Dr Sciberras dated 5 and 19 September 2011. It may also be inferred that discovery had been provided, and inspection completed, by 8 June 2018.[315]
Also, by 8 June 2018, Tony and Carmen had filed the following affidavits of:
1. Holly Byrne sworn 20 June 2017.
2. Carmen sworn 23 June 2017.
3. Tony sworn 23 June 2017.
4. Janet Leon of Strand Conveyancing sworn 14 July 2017.
5. Father Leong sworn 24 June 2017.
6. Mr Levitan affirmed 15 June 2017.

The Calderbank offers

The letter of 16 February 2018 included the following:[316]

The present situation in respect to this matter is:

This matter has been the subject of a fully argued summary judgment application and two attempts at mediation.
In the course of the summary judgment application our clients filed numerous affidavits setting out the evidence on which they rely to demonstrate that their deceased father was not reliant on them in the manner you have pleaded, had not located any substantial amount of cash in the house at Second Avenue, Bassendean, and in which the proceeds from the sale of Moat Street during their father's lifetime were accounted for.
Your client filed various affidavits in the summary judgment application all of which demonstrated that she and her immediate family had no contact with her father for a number of years being the period in which you allege the deceased's will was overborne. It appears therefore your client had no actual evidence to support her case and will instead have to rely on inferences and cross‑examination. (emphasis added)
The letter of 8 June 2018 included the following:[317]

Undue influence claim

In the course of these proceedings you have asserted on several occasions that your client's undue influence claim regarding the transfer of the Bassendean Property is assisted by your client having the advantage of a legal presumption. We understand what you refer to is a presumption that the transfer was procured by reason of undue influence, arising by virtue of the relationship between [Joseph] as transferor and his children, the second and third defendants, as transferees. We understand that your client's case is to be put on the basis that the second and third defendants bear the onus of proving, on the balance of probabilities, that the transfer is not affected by undue influence.
As you are no doubt aware, we disagree with your analysis on this point and maintain that your client bears the onus of proving the [sic] there was actual undue influence which affected the transfer.
Enclosed is a copy of an article by Fiona Burns, Under Influence Inter Vivos and the Elderly, [ 2002] MelbULawRw 27 ; 26 Melb UL Rev 499 which canvasses the law in this area. We also point you to the more recently published O'Neill and Peisah Capacity and the Law, 2nd ed ... In particular, the issues as to onus in an undue influence claim are discussed in chapter 3 and Ms Burns' article is extensively quoted. You will note that both these texts make it clear that the presumption of undue influence only operates, relevantly, when the transferor is the child and the transferee is the parent, the opposite to the relationship between the relevant parties to this transfer.
In light of these materials, we urge you to reconsider your view that your client has the benefit of a presumption.
Furthermore, none of the evidence we have seen, including nothing in the documents returned under the various subpoenas your client has issued, causes us to regard your client as likely to discharge her onus of proof. There is simply no basis at all in the evidence to suggest that there was actual undue influence.
It appears that the highest your client's evidence reaches is that in 2013 Tony Galea made enquiries with Telstra as to having a silent telephone number and that [Joseph] had an ANZ cheque account for which Tony Galea was a signatory. In respect to the former, you will note that the records also indicate that Tony was told he could not change his father's telephone number; the only person who could do so was his father and in fact the change was effected by Telstra contacting [Joseph] who was the account holder. As to the ANZ signatory, having the right to sign cheques is of no moment if the right was never utilised. We note that the ANZ subpoena did not return any cheques or other records which indicate Tony Galea ever operated the account.

Unconscionable conduct

The claim of unconscionability suffers from the same defects as the undue influence claim. Your client must prove that her father was vulnerable, in the legal sense, to a stronger party. Whilst the onus will shift to the defendants if your client is able to show that [Joseph] was vulnerable, there is no evidence at all that supports the assertion that he was vulnerable, so your client's case will fail at that hurdle.
The fact that your client had no contact with her father during the last 4 years of his life does not mean he was vulnerable, it means that she has no personal evidence on which she can rely to establish vulnerability. She is not assisted by the evidence of her brother Mario or her husband and son, the sum total of which is that none of those witnesses had any contact during the relevant period so can say nothing as to vulnerability. Assertions in a statement of claim do nothing to improve the paucity of the evidence your client has to rely on.
Furthermore, even if the court were to take the view that there is a scintilla of evidence of vulnerability, the fact that [Joseph] consulted Mr Levitan regarding the transaction as well as Ms Leon's evidence, the medical evidence at the time of the transaction and Mr Brook's file notes clearly demonstrates that [Joseph] entered into the transaction with full understanding, cognitive ability and consent.
Consequently, it is our view that your client simply cannot succeed in meeting the threshold necessary to reverse the onus, and even if she can, the independent evidence clearly establishes no unconscionability.

$200,000 cash alleged to be in the house

Your client pleads that [Joseph] had $200,000 as at August 2011, in a locked drawer at his home in Bassendean. As we understand your client's evidence, she has not been to [Joseph's] home since June 2011 and had apparently not entered the house since some date prior to that. She gives no evidence at all which could be the foundation for the plea in paragraph 25 of the statement of claim. None of the remaining evidence filed on your client's behalf, assuming it is admissible, provides a foundation for the plea.
Furthermore, if we assume that your client is ultimately able to prove that in August 2011 [Joseph] had $200,000 in cash in a locked drawer in his home, the proof of that does not advance your client's case to the point that the first defendants are liable to account for those funds; to do that you will need to prove that he had the funds at the time of his death in September 2015, over 4 years later.
You have seen the affidavits of the defendants in which both say they conducted a thorough search of the house and could not locate any sum of that nature, consequently there is no evidence that any significant sum of money existed in the house at the time of his death. There can be no accounting for funds which did not exist.
As your client should be well aware, [Joseph] was entitled during his life to spend his money as he chose. During his lifetime [Joseph] owed no obligation to account to your client, our clients or any other person for what he did with his money. In short, the defendants do not know and cannot account for [Joseph's] spending during his lifetime and nor are they obliged to account for him.
This part of your client's claim is bound to fail.

Moat Street

The claim for an account of the proceeds of sale of the Moat Street property in March 2014 must also fail. In summary:

(a) your client has sought an account of the proceeds, which she is not entitled to, but in any event, the proceeds of the sale have been fully accounted for in the affidavits filed by the defendants in these proceedings;

(b) [Joseph] was entitled to gift part of the proceeds he received from his children to our clients, or anyone else he chose, during his lifetime and was not liable to account to your client or any other person for that;

(c) the executors are not liable to account for an inter vivos gift of [Joseph]; and

(d) there is no pleaded basis for your client or the estate having any interest in the proceeds of the sale as they did not form part of the estate, having been part received by [Joseph] over 18 months prior to [Joseph's] death. (emphasis added)

The article by Ms Burns, referred to in par 3 of the letter of 8 June 2018, included the following:[318]

[A] claimant may be able to set aside a transaction by convincing the court of the existence of a special relationship of influence without proving that undue influence was actually exercised ...

[T]he presumption arises without the need to prove that the defendant is guilty of any wrongdoing whatsoever. Rather, the central issue is the plaintiff's lack of capacity for self‑management by reason of their excessive dependence on the other person in the relationship ...

Although the relationship between an elder and his or her adult child does not result in an automatic presumption of undue influence, it is open to an elder to prove that as a matter of fact there was a relationship of trust and confidence between himself or herself and the relative or caregiver. Courts have made it clear that the 'normal' or commonplace relationship between elderly parents and adult children will not be sufficient evidence for a presumption of relational undue influence ...

In Johnson v Buttress, Dixon J pointed out that parties must stand in an antecedent relationship which gives one person an authority or influence over the other so that the weaker party must be protected from the possibility of abuse. In practice, courts in Australia and New Zealand have set a high standard for proof of an antecedent relationship of trust and confidence where elders are concerned. Generally elders had to demonstrate a physical, emotional and/or financial dependence on the defendant. An elder will be dependent upon a relative or caregiver if the elder relies on that person for the basic necessities of life, leaves the management of their financial affairs in that person's hands and/or is incapable of looking after himself or herself without the intervention of the relative or caregiver. Severe physical or mental impairment can be an important factor leading to the conclusion that the elder is dependent ...

However, where an elder is unable to show the level of dependence illustrated above, it has been difficult to raise a presumption of relational undue influence ... Indeed it could be said that where the elder lives independently and is self‑reliant, courts are reluctant to find a presumption of undue influence at all[.]

The judge's findings

The judge, amongst other things, said:[319]

For present circumstances, I am of the view that this action, unlike the 'case of substance' assessed by the trial judge in Lo Presti v Ford [No 2], was never a case of arguable merit. Here, it cannot be reasonably suggested in my view that, properly advised, this plaintiff at 8 June 2018 might legitimately have thought that she held a reasonably arguable or respectable cause of action - predicated upon the twin undue influence or unconscionable conduct causes of action ...

In the primary reasons, I collected all [Georgina's] trial evidence, which, apart from documents, essentially came from herself, her husband, her son, her brother Mario plus from her uncle Angelo (see primary reasons [13] - [16]). But none of that came close to being enough. There had been real substance in the 8 June 2018 Calderbank offer criticisms by the defendants to the effect that none of these persons appear to have been in regular contact with [Joseph] (after the passing of his wife ‑ their mother) ‑ for the purposes of providing some substantively direct trial evidence bearing on making good those twin causes of action against the defendants.

...

Here, the twin causes of action directed against the defendants, in my view, were allegations of serious misconduct. The defendants were also of course the named executors under [Joseph's] will which had been admitted to probate.

Where then, was the factual (not necessarily strong, overwhelming or conclusive, but respectably persuasive, potentially) evidence held in the hands of [Georgina's] lawyers which could provide some proper basis to sustain serious misconduct allegations of undue influence and unconscionable conduct? Nothing is evident other than internal family squabbling and suspicions. No submission is put to me now by [Georgina] that her case had once looked a lot better for her back in June 2018 ‑ but then later had deteriorated before trial, due to a loss of a key witness or something like that. Her case on what I saw at the trial was always deficient. Properly advised, this action should not have been convened until such a platform of evidence was held.

The 8 June 2018 Calderbank offer pointed out at length the forensic difficulties manifesting for a then future trial - as regards proving undue influence and the absence of any presumption favouring [Georgina]: see pars 4, 5 and 6. As regards unconscionable conduct, the absence of any evidence persuasively pointing to [Joseph's] relevant special vulnerability, was rendered explicit: see pars 7, 8 and 9. All this was seemingly ignored as [Georgina] pressed on to a trial valley, resonating with Tennyson's verse for the Light Brigade's charge.

At par 9 of the 8 June 2018 Calderbank offer, express attention was directed towards the evidence of [Joseph's] legal representative - who prepared his penultimate and final wills, Mr Melvyn Levitan, concerning how that evidence would demonstrate [Joseph's] full understanding, cognitive ability and consent. How could that likely evidence therefore be ignored or downplayed?

Faced with all that the adverse looming trial evidence from [Tony and Carmen], including evidence from Mr Levitan, loud warning bells should then have been tolling for [Georgina].

Yet the tenor of [Georgina's] position under her present costs submissions is that subsequent to the 8 June 2018 Calderbank offer, more evidence emerged from [Tony and Carmen] which rendered [Georgina's] (assumed) arguable undue influence and unconscionable conduct cases to become vulnerable to be lost at trial. That submission, however, wholly displaces and ignores the fundamental starting responsibility of a plaintiff and their legal advisers to gather together at least some respectable body of evidence to support a trial position concerning serious allegations of undue influence and unconscionable conduct in order to plead that at all in the first place - before starting a litigious war to follow.

In the present circumstances, a proper level of trial preparation for [Georgina] at a time 15 months after issuing the writ would at least have envisaged trying to get a statement of evidence from the longstanding general medical practitioner of [Joseph] (Dr Sciberras) upon [Joseph's] cognitive capacity. Dr Sciberras' affidavit evidence (at trial he was not required for cross‑examination on his affidavit) was, of course, totally inconsistent with [Georgina's] advocated case theory of [Joseph] as an emotionally fragile and incapable old man, that was effectively 'putty' in the hands of his manipulative younger children. No medical evidence supported that theory. (emphasis added)

The judge continued:[320]

The fourth factor contended [by Georgina was] that this was a heavily factual case depending upon the ultimate factual findings of the trial judgment. That submission does not, in my view, engage against what was coherently put to [Georgina] on 8 June 2018 - as regards the substantive demerits at trial of her undue influence and unconscionable conduct causes of action, viewed at that time. At that time, [Georgina] after 15 months essentially had nothing of an evidentiary persuasive nature other than what appeared to be beliefs held on her side by members of her direct family. That position needed to be coolly and unemotively weighed against looming trial evidence from Mr Levitan as to [Joseph's] unimpaired cognitive capacity around the time he made his last will and after. Evidence from the settlement agent, Ms Leon, who transferred the Bassendean family home to the second and third defendants on the deceased's instructions, concerning her practices and the independence prerequisites that she required from someone seeking to transfer property in circumstances of [Joseph], was also likely to be problematic for [Georgina]. None of that supported [Georgina's] twin causes of action.

Hypothetically, for instance, if [Georgina's] solicitors had obtained a statement from Dr Sciberras, as [Joseph's] long standing general practitioner, to gain at least some foothold of evidentiary support for their contentions as regards [Joseph's] cognitive impairment, emotional fragility, or some level of special vulnerability, then that might have been said to be a countervailing factor for [Georgina] to put against the present application.

But [Georgina] never held any evidence of that nature. Indeed, the medical evidence at the trial about [Joseph] from Dr Sciberras was overwhelmingly to the contrary and uncontested.

It is one thing for a plaintiff to hold a respectively arguable case predicated upon evidence that proves later to be discredited at a trial. It is quite another to not hold any independent supporting evidence and run a four day trial in the Supreme Court on belief or hope.

On my assessment, there was no point at which this plaintiff possessed some body of potentially persuasive independent evidence to support her twin causes of action. As I assess matters, this case should not have been started - especially given the pre-requisite standing requirement of showing special or, exceptional circumstances for a derivative action. That requirement was 'bootstrapped', as I earlier explained. (emphasis added)

Disposition

The question of error is to be determined in accordance with the principles in House v The King.[321] The effect of the grounds is to allege (1) express error, and (2) inferred error in the sense that the conclusion that the rejection of the Calderbank offer of 8 June 2018 was unreasonable was one which was 'unreasonable or plainly unjust ... [and] that a substantial wrong has in fact occurred'.[322]
As to the first ground, express error is alleged in two respects:
1. The judge acted upon a wrong principle in that he considered that because the relationship between Joseph on the one hand and Carmen and/or Tony on the other was not one of the established categories of presumptive undue influence, Georgina necessarily had to establish the existence of actual undue influence.
2. The judge mistook the facts, in that he failed to appreciate that Georgina's case was premised on the existence of an antecedent relationship of influence, notwithstanding that the relationship was not within an established category.
Whether the judge made the express errors imputed in the first ground depends, in substance, upon a proper construction of the judge's reasons in the costs decision.
His Honour's reference[323] to the 8 June 2018 letter pointing out 'forensic difficulties manifesting for a then future trial - as regards proving undue influence in the absence of any presumption' is, arguably, capable of being read as the judge making the error of assuming that because the relationship between Joseph and Tony and/or Carmen did not fall within the recognised categories of presumptive influence, Georgina necessarily had to establish actual undue influence.
On the other hand, it is also arguable that his Honour's reference in that regard, read in the light of pars 2 and 3 of the letter of 8 June 2018, and the reference in the letter to 'relevantly' in the last sentence of par 3 of the letter, is to be understood as accepting that absent viable grounds for an inference of a relationship of presumptive influence, Georgina had to establish actual undue influence. On balance, the latter construction of his Honour's reasons is to be preferred.
At the outset, it should be observed that the inference of error ought, prima facie, not be too readily drawn, given that the judge (as explained in [128] ‑ [129] above) had dealt with the claim for presumptive undue influence in the primary decision, and it could not easily be inferred that his Honour was unaware of, or had forgotten that in the costs decision. That is particularly so where the judge's remarks, referred to in [180] above, were immediately preceded by a paragraph including the statement that, 'Her case on what I saw at the trial was always[324]ficient'.324
Further, his Honour had been involved in case‑managing the litigation and may be taken to have been familiar with its procedural history. As counsel for Tony and Carmen in effect submitted, as at 8 June 2018, Georgina's pleading of an antecedent relationship of influence lacked the clarity with which it emerged in the later pleading. The 2017 statement of claim did not, in terms, refer to an 'antecedent relationship' (unlike the statement of claim at trial), and did not clearly distinguish between claims for presumed undue influence and actual undue influence.[325] The 2017 statement of claim pleaded (amongst other things):
1. that Joseph lacked independent legal advice - a plea that may contribute to an inference of actual undue influence,[326] and, moreover, is commonly made by defendants in rebuttal of a pleaded claim of presumed undue influence;[327]
2. reliance on the fact that Tony and Carmen were the 'lawful' children of Joseph as contributing to a relationship of trust and influence for the purposes of undue influence;
3. that Joseph lacked familiarity with English; and
4. that after Josuarda died, Joseph was unable to live at home without assistance.
By the time of trial, Georgina had withdrawn from the statement of claim the allegations referred to in points 1 ‑ 4 above.
The 2017 statement of claim did not plead (1) the fact of the power of attorney given to Carmen and Tony, (2) the allegation that Tony was authorised to conduct Joseph's legal affairs, and (3) the assertion that Joseph had authorised Carmen to receive his confidential legal documents by email from his solicitors.[328]
In the costs decision the judge found, in effect, that as at 8 June 2018, the affidavit evidence filed by Georgina indicated that the witnesses had little or no personal knowledge of the alleged social, physical or financial dependence of Joseph, particularly given their limited contact with Joseph after Josuarda's death.[329] On the other hand, Georgina, by that stage, had been served with evidence filed by Tony and Carmen to the effect that Joseph was not socially isolated (which included evidence from Father Leong), as well as evidence from Mr Levitan, Ms Leon, and the medical reports dated 5 and 19 September 2011 of Dr Sciberras (attached to the statutory declaration). The judge found that Dr Sciberras' evidence (the kernel of which was contained in his documents dated 5 and 19 September 2011) was 'totally inconsistent with [Georgina's] ... case theory of [Joseph] as an emotionally fragile and incapable old man, that was effectively "putty" in the hands of his manipulative younger children'.[330] Moreover in this context, the judge noted that it was not as though Georgina's case unexpectedly took a turn for the worse because she lost a material witness between 8 June 2018 and the trial.[331]
The better view of the costs decision, read as a whole, is that the findings referred to in the preceding paragraph addressed Georgina's claim for undue influence, both presumed and actual. These findings in turn form part of the context in which the judge's reference, outlined in [180] above, is to be understood.
In light of the matters in [181] ‑ [187] above, we are not persuaded that his Honour made the first express error imputed to him, when the costs decision is read as a whole.
Nor would we infer that the judge mistook the facts, insofar as it is alleged that his Honour 'failed to appreciate' that Georgina's case was 'premised' on the existence of an antecedent relationship of influence, notwithstanding that the relationship was not within an established category.
As at 8 June 2018, Georgina's pleaded case was not 'premised' on a claim for presumed undue influence. Although it may be accepted that the 2017 statement of claim included (albeit without the clarity of the later pleading) allegations referable to such a case, in substance, the 2017 statement of claim treated the claim for undue influence generically. The other pleaded claims involved unconscionable conduct and the alleged failure to account. The judge's observation that the materials sought to be relied on by Georgina were 'always deficient', may be read as applying to the generic claim of undue influence, whether allegedly arising from a relationship of presumptive influence or from the exercise of actual undue influence.
Ground 1 has not been established.
In relation to ground 2, we see no error in the judge's assessment[332] of the first, second, third, fifth and sixth factors outlined as ordinarily relevant in Ford Motor Company of Australia Ltd v Lo Presti.[333] As to the fourth Lo Presti factor (the offeree's prospects of success assessed as at the date of the offer), the burden of the 2017 statement of claim was that Joseph was old, limited in his capacity to write and understand English, suffering from mild memory loss, physically enfeebled, socially isolated, and, against that background, 'dependent' upon Tony and Carmen to meet his physical needs, and 'entirely dependent' upon them to meet both his financial needs and his emotional needs. As the judge in effect found, as at 8 June 2018, Georgina's affidavit evidence was lacking in cogency in that regard. Further, Georgina's pleaded claim that a relationship of presumptive undue influence was contributed to by the fact that Tony and Carmen were the children of Joseph could not reasonably have been regarded as meritorious, at least without otherwise establishing the burden of her pleaded case, and given that the parent/child relationship does not fall within the recognised categories of influence. Nor could the fact that Tony and Carmen were Joseph's executors reasonably be seen, absent establishing the other pleaded factors relied upon by Georgina, as contributing to a conclusion of presumed or actual undue influence or unconscionable conduct. That is particularly so given that, on Georgina's evidence, the appointment of Tony and Carmen as executors arose at a time when Georgina had a good relationship with her father.
Also, as noted earlier, the allegations referred to in [185] above (on which Georgina placed considerable emphasis in the appeal against the primary decision) had not been pleaded in the 2017 statement of claim, and there is no evidence that amendments to that effect were in contemplation as at 8 June 2018. Even assuming those matters were to be taken into account in assessing the unreasonableness or otherwise of Georgina's rejection of the Calderbank offer, the first allegation (the fact of the power of attorney) had limited significance absent Georgina otherwise establishing the burden of her pleaded case. The second allegation (that Tony had been authorised to conduct Joseph's legal affairs) is an overstatement of the effect of the evidence derived from Mr Levitan's file, as is the third allegation (that Joseph had authorised Carmen to receive his confidential legal documents by email from his solicitors).
Further, assuming that the matters referred to in [185] above, together with the matters referred to in [150] above, might be pressed in argument as establishing that in all the circumstances as at 8 June 2018 it was not unreasonable for Georgina to reject the Calderbank offer, the ultimate question remains, for present purposes, whether the judge's conclusion is unreasonable or plainly unjust. As Mitchell JA observed in Joyce[334]Anderson:334

Even where the appeal concerns the inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. As Beaumont and Lee JJ observed in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:

'... The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.'

That observation has been adopted by this and other intermediate appellate courts.

The judge in the primary decision described Georgina's characterisation of her father's condition and circumstances at the date of the transfer as 'overblown'.[335] Although this was said with reference to the position at trial, this characterisation appears equally accurate when considering the nature of Georgina's case, actual or prospective as at 8 June 2018, in the context of the question of the unreasonableness or otherwise of Georgina's response to the Calderbank offer as at 8 June 2018. Overall, we are not persuaded that error has been established in the requisite sense as alleged in ground 2.
There is no point in giving an extension of time to appeal against the costs decision as there is no merit in the appeal. The appeal against the costs decision should be dismissed.

Conclusion

Both appeals should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DM
Associate to the Honourable Justice Murphy

11 SEPTEMBER 2020

[1] Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164.
[2] Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164 (S) (costs decision).
[3] The background is taken from the findings of fact made by the primary judge and uncontested evidence.
[4] Primary decision [28].
[5] Primary decision [29].
[6] Primary decision [30].
[7] Primary decision [31].
[8] Primary decision [36].
[9] Primary decision [31].
[10] Primary decision [32].
[11] Primary decision [33].
[12] Primary decision [34].
[13] Primary decision [35].
[14] Primary decision [37].
[15] Primary decision [39].
[16] Primary decision [41].
[17] Primary decision [45].
[18] Primary decision [46].
[19] Primary decision [47].
[20] Primary decision [48] - [49].
[21] Primary decision [50].
[22] Primary decision [51].
[23] Primary decision [52].
[24] Primary decision [53].
[25] Primary decision [54].
[26] Primary decision [55].
[27] Primary decision [59].
[28] Primary decision [60].
[29] Primary decision [58].
[30] Primary decision [63] - [66].
[31] Primary decision [125].
[32] Primary decision [61], [142].
[33] There is no reference to the Moat Street property.
[34] Mr Levitan's file note, GB 448. See also ts 323 - 325 (Carmen XXN), ts 405 (Tony XXN).
[35] Mr Levitan's email, GB 449. See also ts 324 (Carmen XXN).
[36] Primary decision [61] - [62], [269].
[37] Primary decision [219].
[38] Primary decision [219].
[39] Primary decision [219]. See ts 451 (Tony XXN).
[40] Primary decision [210].
[41] Primary decision [211].
[42] Primary decision [219].
[43] Primary decision [67].
[44] Primary decision [114].
[45] Primary decision [69].
[46] Primary decision [206].
[47] Primary decision [209].
[48] Primary decision [57].
[49] Primary decision [100]. Georgina's evidence in cross‑examination was to the effect that although she made some attempts to telephone her father at least between 1 August 2011 and 30 March 2012, she did not visit or speak to her father again until a few days before he died: ts 101, 104 - 106.
[50] Primary decision [70] - [75].
[51] Primary decision [77] - [78]; see also primary decision [245], [248].
[52] Joseph called Mario at 4.53 am and the call lasted for around 24 minutes: primary decision [79], [81], [126].
[53] Primary decision [82].
[54] Primary decision [79] - [84].
[55] Primary decision [85].
[56] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 3; GB 107 - 108; see also Mr Levitan's file note, GB 468.
[57] Primary decision [85].
[58] Primary decision [85].
[59] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 4; GB 108; see also Mr Levitan's file note, GB 447.
[60] Primary decision [144].
[61] Primary decision [213].
[62] Primary decision [86]. See GB 103.
[63] Primary decision [145]. See GB 447.
[64] Primary decision [87], [145]. See GB 447.
[65] Primary decision [88].
[66] Primary decision [213].
[67] Primary decision [89]; GB 104 - 105.
[68] Primary decision [90].
[69] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 6; GB 108.
[70] Primary decision [91].
[71] Primary decision [134]; affidavit of Janet Scott Leon sworn 14 July 2017, par 2; GB 89.
[72] GB 124.
[73] GB 176.
[74] GB 137 - 139.
[75] Primary decision [93], [135]. See GB 116 - 118.
[76] Primary decision [135]. See GB 159. There was also a handwritten document expressed in similar terms to the statutory declaration, which stated that 'we agree that this transfer is made conditional that I Joseph Galea will reside at the [Bassendean property] rent free for all the days of my life or when I so wish to relinquish the tenancy': GB 188.
[77] The documents attached were Dr Sciberras' documents of 5 September 2011 and 19 September 2011.
[78] Primary decision [94]. See GB 119.
[79] Primary decision [136]. See GB 88 - 91.
[80] Primary decision [93].
[81] Primary decision [274].
[82] Primary decision [276]; see also primary decision [213].
[83] Primary decision [205].
[84] Primary decision [95].
[85] See GB 514 - 515, 517, 525 - 526, 531, 536, 540, 542, 545, 550.
[86] ts 438 - 440 (Tony XXN). See GB 515, 517, 545.
[87] Primary decision [96].
[88] Primary decision [142].
[89] Primary decision [149] - [151].
[90] Primary decision [152].
[91] Primary decision [153].
[92] Primary decision [154].
[93] Primary decision [98].
[94] Primary decision [99].
[95] Primary decision [100].
[96] Primary decision [100].
[97] Primary decision [100].
[98] Primary decision [101]. Although the solicitor's file note appears to have errors in it, the errors appear to reflect on the author of the file note, rather than Joseph: GB 585.
[99] Primary decision [102].
[100] Primary decision [103] - [104].
[101] Primary decision [231].
[102] Primary decision [106].
[103] Primary decision [107].
[104] Primary decision [108] - [110].
[105] Primary decision [111].
[106] Primary decision [112].
[107] Primary decision [113].
[108] Primary decision [114].
[109] Primary decision [115] - [116].
[110] Primary decision [117].
[111] Primary decision [118] - [119].
[112] Primary decision [163].
[113] Re-amended substituted statement of claim, pars 27 - 32; BB 109 - 113. See also 'Plaintiff's Outline of Submissions', pars 39 - 41; BB 143 - 144.

[114] Re-amended substituted statement of claim, par 27; BB 109 - 110.
[115] Re-amended substituted statement of claim, par 28; BB 110.
[116] Re-amended substituted statement of claim, par 29; BB 111.
[117] Re-amended substituted statement of claim, par 30; BB 111 - 112.
[118] Re-amended substituted statement of claim, par 32; BB 112 - 113 (emphasis added).
[119] Re-amended substituted statement of claim, par 31; BB 112; Plaintiff's Outline of Submissions, par 55; BB 148.
[120] Re-amended substituted statement of claim, pars 34 - 35; BB 114.
[121] Re-amended substituted statement of claim, par 34; BB 114.
[122] Primary decision [202].
[123] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [34].
[124] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113.
[125] Primary decision [203] - [205].
[126] Primary decision [215] - [221].
[127] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392.
[128] Primary decision [226].
[129] Primary decision [271] - [272].
[130] Appellant's written submissions, pars 1 - 5.
[131] Appellant's written submissions, par 8.
[132] Appellant's written submissions, par 7.
[133] Appellant's written submissions, par 11.
[134] Appellant's written submissions, pars 15 - 47.

[135] Primary decision [205].

[136] Primary decision [90].
[137] Primary decision [205].

[138] Reference was made to primary decision [213], [276].
[139] Primary decision [226].
[140] Primary decision [68].
[141] ts 435 - 436, 441, 451.
[142] Primary decision [83] - [84], [100]. See also primary decision [63] - [66], [79] - [81], [85].
[143] Primary decision [83].
[144] Primary decision [100].
[145] Primary decision [108] - [117].
[146] Primary decision [219].
[147] Primary decision [219].

[148] ts 323 - 325, 405.

[149] ts 323 - 325, 404 - 406; exhibit 1.45.

[150] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 3; GB 107 - 108. See also GB 468.

[151] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 4; GB 108. See also GB 447.

[152] Primary decision [145].
[153] Primary decision [87].

[154] ts 434 - 440; exhibit 1.45.

[155] Affidavit of Georgina Veronica Shephard sworn 31 October 2018, pars 641 - 642; GB 33.
[156] Primary decision [153].
[157] Primary decision [206].
[158] Exhibit 1.39; GB 124, 135 - 136, 137 - 139; ts 440 - 444.
[159] GB 193 (Mario's cross-examination on this is at ts 441 - 444).
[160] Appellant's written submissions, par 47.
[161] Appellant's written submissions, pars 48 - 56.
[162] Appellant's written submissions, pars 59 - 85.
[163] Appellant's written submissions, pars 59 - 71.

[164] Appellant's written submissions, pars 72 - 85.

[165] Primary decision [160].

[166] Primary decision [206], [275].
[167] Reference was made to Stivactas v Michaletos (No 2) (1993) NSW ConvR 55‑683, 59, 903.
[168] Whereat v Duff [1972] 2 NSWLR 147, 181 (Asprey JA), 182 (Holmes JA).
[169] Respondent's written submissions, par 6, referring to Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 577.
[170] Respondent's written submissions, par 6, referring to Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675.
[171] Respondent's written submissions, par 7, referring to Kerr v West Australian Trustee Executor Agency Co Ltd [1937] WALawRp 6; (1937) 39 WALR 34; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353.
[172] Respondent's written submissions, par 12.
[173] Respondent's written submissions, par 17.
[174] Respondent's written submissions, par 20.
[175] Respondent's written submissions, par 23, referring to exhibit 1.39.
[176] Respondent's written submissions, par 24.
[177] Respondent's written submissions, par 25.
[178] Respondent's written submissions, pars 27 - 28.
[179] Respondent's written submissions, par 32.
[180] Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 [166] ‑ [173], [175] ‑ [176]; approved in Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495 [381].
[181] Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42, 61; Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 Ch D 145, 183.
[182] Symons v Williams [1875] VicLawRp 116; (1875) 1 VLR (E) 199, 216.
[183] Thorne [34].
[184] Goldsworthy v Brickell [1987] Ch 378, 401; Quek v Beggs (1990) 5 BPR [97405], 11,762; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55‑683, 59,908.
[185] Thorne [32].
[186] Stivactas (59,903); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 577; Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30, 35 ‑ 36.
[187] Bester (33 - 34).
[188] Bester (35).
[189] Bester (35).
[190] Huguenin v Baseley [1764] EngR 89; (1807) 14 Ves 273; (1807) 33 ER 526.
[191] Huguenin [300]; Rogers (54).
[192] Spong v Spong [1914] HCA 52; (1914) 18 CLR 544.
[193] Spong (545 ‑ 546), (548).
[194] Spong (546).
[195] Spong (547 - 548).
[196] Spong (548).
[197] Spong (549).
[198] Spong (549); see also (551 - 552) (Isaacs J).
[199] Spong (552).
[200] Johnson (134 - 135).
[201] Jenyns v Public Curator (Qld) [1954] HCA 2; (1954) 90 CLR 113, 132 ‑ 133.
[202] Jenyns (120 - 121).
[203] Jenyns (128).
[204] Jenyns (118 - 119).
[205] Jenyns (115).
[206] Jenyns (115).
[207] Jenyns (132).
[208] Jenyns (132 - 133).
[209] Jenyns (133).
[210] Jenyns (135).
[211] In re Coomber; Coomber v Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723.
[212] In re Coomber (726).
[213] See also Dowsett v Reid [1912] HCA 75; (1912) 15 CLR 695, 703.
[214] In re Coomber (729).
[215] In re Coomber (730); see also Dowsett (704).
[216] Dowsett (703 - 705), (707); Union Fidelity Trustee (576); Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed) [15‑100].
[217] Thorne [39] - [40].
[218] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 461. See also Thorne [40].
[219] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]. See also Joyce v Anderson [2020] WASCA 48 [105] ‑ [108], [206] ‑ [213].
[220] Lee [55] fn 48.
[221] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [144].
[222] Thorne [42].
[223] Thorne [62].
[224] Thorne [41] - [43]; as to appellate caution in relation to an evaluative judgment, such as a testator's state of mind, see also Craig‑Bridges v NSW Trustee Guardian [2017] NSWCA 197 [118], referred to in Smart v Power [2019] WASCA 106 [106].
[225] Mills v Mills [1938] HCA 4; (1938) 60 CLR 150, 161.
[226] Primary decision [202].
[227] Primary decision [203].
[228] Primary decision [214] - [221].
[229] Primary decision [219].
[230] Primary decision [203] - [205].
[231] cf Kakavas [143].
[232] Kakavas [44]; Thorne [42].
[233] GB 93 - 94.
[234] Appeal ts 4, see also 42.
[235] Thorne [32].
[236] Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353, 365; Nelson v Nelson (1994) 33 NSWLR 740, 745 (presumption applied to the relationship of mother with adult child); Callaghan v Callaghan [1995] SASC 5064; (1995) 64 SASR 396, 404 ‑ 405 (presumption applied to the relationship of father with adult child).
[237] ts 82 - 83 (Georgina); ts 139 (David).
[238] ts 122 (Georgina); ts 205 (Jason).
[239] ts 82.
[240] ts 174.
[241] Primary decision [144].
[242] Primary decision [135].
[243] Primary decision [135].
[244] It is unnecessary, for present purposes, to determine whether the circumstances gave rise to an equitable lease.
[245] Primary decision [221].
[246] Jenyns (133).
[247] Primary decision [213] read with primary decision [276] in the context of the primary decision read as a whole.
[248] Primary decision [217].
[249] Primary decision [260].
[250] Primary decision [57].
[251] ts 96 - 100, 122 - 123.
[252] ts 101, 104 - 106, 108.
[253] Primary decision [256].
[254] Primary decision [149] - [150].
[255] ts 458 - 459 (Tony XXN); ts 333, 346 - 347 (Carmen XXN).
[256] ts 458.
[257] Primary decision [89].
[258] Primary decision [271].
[259] Primary decision [219].
[260] Primary decision [215] - [216].
[261] Primary decision [57].
[262] Primary decision [221].
[263] ts 440 - 441.
[264] Primary decision [55].
[265] ts 467 - 468.
[266] ts 209, 212, 214 - 215.
[267] Exhibit 13, pars 8 - 14, 23 - 26; GB 82 - 84.
[268] Primary decision [101].
[269] ts 425, 431.
[270] Primary decision [100].
[271] Primary decision [89].
[272] Primary decision [206].
[273] Primary decision [213].
[274] Primary decision [87] - [88].
[275] Primary decision [205].
[276] GB 193.
[277] Affidavit of Janet Scott Leon sworn 14 July 2017, pars 10 - 11; GB 90.
[278] ts 441 - 442.
[279] Costs decision [6], [71] - [98].
[280] CACV 101 of 2019, WB 1 - 6, 12.
[281] CACV 101 of 2019, WB 14.
[282] CACV 101 of 2019, WB 15 - 16.
[283] Georgina filed a re‑amended substituted statement of claim on 14 February 2019, and a 'Plaintiff's Outline of Submissions' on 21 December 2018: BB 101 ‑ 121, 136 ‑ 154.
[284] CACV 101 of 2019, WB 16.
[285] CACV 101 of 2019, WB 21 - 22.
[286] Costs decision [76] - [77], [82], [95].
[287] Appeal ts 72 - 73.
[288] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [84].
[289] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447.

[290] 2017 statement of claim, pars 2 - 3.
[291] 2017 statement of claim, par 4.
[292] 2017 statement of claim, par 13.
[293] 2017 statement of claim, par 7.
[294] 2017 statement of claim, pars 8.1 - 8.3.
[295] 2017 statement of claim, par 8.4.
[296] 2017 statement of claim, par 8.5.

[297] 2017 statement of claim, par 10.1.

[298] 2017 statement of claim, par 10.2.

[299] 2017 statement of claim, par 10.3.

[300] 2017 statement of claim, par 10.4 (emphasis added).

[301] 2017 statement of claim, par 10.5 (emphasis added).

[302] 2017 statement of claim, par 10.6 (emphasis added).
[303] 2017 statement of claim, par 11.
[304] 2017 statement of claim, pars 14.1 - 14.2.
[305] 2017 statement of claim, par 12.
[306] 2017 statement of claim, par 14.3.
[307] 2017 statement of claim, par 15 (emphasis added).

[308] 2017 statement of claim, par 16.
[309] 2017 statement of claim, par 17.
[310] 2017 statement of claim, par 18.
[311] 2017 statement of claim, par 19.
[312] 2017 statement of claim, par 20.

[313] 2017 statement of claim, pars 21 - 28.
[314] 2017 statement of claim, pars 29 - 30.
[315] The parties had been ordered to give discovery by 31 March 2018, and to complete inspection by 13 April 2018.
[316] Costs decision sch 2.
[317] Costs decision sch 1.
[318] F Burns, Undue Influence Inter Vivos and the Elderly, [2002] MelbULawRw 27 ; 2002, 26 Melbourne University Law Review 499, 506 ‑ 507, 517 ‑ 519.
[319] Costs decision [73] - [74], [77] - [83].
[320] Costs decision [92] - [96].
[321] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
[322] House (505).
[323] Costs decision [79].
[324] Costs decision [78].
[325] Compare the plea at trial referred to in [79.5] above.
[326] Johnson (126).
[327] See [106] above; Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed) [15.135].
[328] Compare the plea referred to in [79.4] above.
[329] Costs decision [73] - [74], [78], [92].
[330] Costs decision [83].
[331] Costs decision [78].
[332] Costs decision [47] ‑ [56], [63] ‑ [64].
[333] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [19].
[334] Joyce v Anderson [2020] WASCA 48 [107].
[335] Primary decision [216].

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