Gill v Garrett

[2021] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gill v Garrett [2021] NSWCA 117

Hearing dates:

29, 30 March 2021

Date of orders:

4 June 2021

Decision date:

04 June 2021

Before:

Macfarlan JA at [1];
Leeming JA at [2];
Emmett AJA at [3]

Decision:

Order that the appeal be dismissed with costs.

Catchwords:

ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation

SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will

EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use

EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW), s 100

Succession Act 2006 (NSW), ss 57, 59

Cases Cited:

Churton v Christian (1988) 13 NSWLR 241

Re Fulop (1987) 8 NSWLR 679

Sassoon v Rose [2013] NSWCA 220

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jason Adrian Francis Gill (Appellant)
Alice Jemima Mary Garrett (First Respondent)
Catherine Sarah Jane Garrett (Second Respondent)
Thomas Peter John Garrett (Third Respondent)

Representation:

Counsel:
D W Robertson (Appellant)
M R Pesman SC with E Glover (Respondents)

Solicitors:
Holman Webb Lawyers (Appellant)
LHD Lawyers (Respondents)

File Number(s):

2020/236446

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 795; [2020] NSWSC 1473

Date of Decision:

16 July 2020; 23 October 2020

Before:

Slattery J

File Number(s):

2016/328585

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Gill, the appellant, challenged a decision of a judge of the Equity Division dismissing his summons and statement of claim that sought a declaration that the executors of the late Dr Garrett held certain property on trust for him, and in the alternative, sought family provision under s 59 of the Succession Act 2006 (NSW) out of the estate. He also challenged the primary judge’s findings in favour of the executors under a cross-claim filed against the appellant.

The appellant met the deceased in 1996 and commenced a friendship that centred upon drinking and socialising in and around the Royal Hotel in Paddington. The relationship between the deceased and the appellant developed into one of greater mutual dependence. On the one hand, the deceased loaned money to the appellant and covered other expenses. In late 2003, the appellant moved into the Paddington home of the deceased, where he continued to reside until after the deceased died in 2015. The deceased paid for the storage of the appellant’s property and continued to loan him money and provide other financial benefits.

On the other hand, the appellant looked after the deceased by driving him to appointments, cooking meals and performing other household tasks. As the deceased’s health and mental capacity began a gradual decline, particularly following a transient ischemic attack in November 2008, the deceased required an increasing level of care. The appellant contributed to that care.

The deceased executed a will in 2008. The appellant was to receive a $200,000 legacy less the appellant’s unpaid loans of some $98,000. The appellant alleged that, in 2009, the deceased made an oral promise to give him the Paddington home in exchange for the appellant continuing to live with him as a companion and carer. On that basis, the appellant claimed the executors were estopped from denying his claim to the home.

The primary judge found that no such representation occurred and that the deceased lack the mental capacity to make such a promise by 2009. His Honour also rejected the family provision claim on the basis that appellant had consciously misused the deceased’s position of special disadvantage.

In relation to the cross-claim, the primary judge awarded the executors equitable compensation in respect of cash withdrawals retained by the appellant for his personal use since November 2008 in breach of fiduciary obligations, and for the storage fees incurred by the deceased from the same time on the basis that the appellant’s conduct was unconscionable in causing them to continue to be charged.

The issues on appeal were:

1. Whether the primary judge erred in rejecting the appellant’s claim for an estoppel in respect of the alleged representation.

2. Whether the primary judge erred in rejecting the appellant’s family provision application.

3. Whether the primary judge erred in awarding the executors equitable compensation.

The Court (per Emmett AJA at [160], Macfarlan JA and Leeming JA agreeing at [1] and [2]), in unanimously dismissing the appeal, held:

In relation to issue (i)

1. The primary judge correctly concluded that the deceased did not make the representation as alleged so as to give rise to a proprietary estoppel. There were no direct witnesses, the appellant’s credibility was dubious and the deceased, uncharacteristically, failed to raise the matter with his family and advisors: [119]–[124]

In relation to issue (ii)

1. The medical evidence, accepted in its entirety by the primary judge, coupled with the dependence of the deceased on the appellant, amply supported a finding that the deceased was in a position of special disadvantage with respect to the appellant: [138]

2. In circumstances where the appellant had received a number of financial benefits from the deceased, there were no factors warranting the family provision application of the appellant: [125]–[140]

In relation to issue (iii)

1. The appellant derived a benefit from the deceased’s payments for keeping his possessions in storage. He could easily end the payments by removing his possessions, but refused to do so. Continuing to do this after November 2008 was unconscionable. There was no error ordering equitable compensation for storage fees of $43,155.64: [141]–[149]

2. Absent a challenge to the finding of a fiduciary relationship in respect of the appellant’s access to the deceased’s bank accounts and PINs, orders for equitable compensation in respect of the unauthorised cash withdrawals were appropriate: [150]–[159]

Judgment

1. MACFARLAN JA: I agree with Emmett AJA.

2. LEEMING JA: I agree with Emmett AJA.

3. EMMETT AJA:

Introduction

This appeal is concerned with a dispute between the appellant, Mr Jason Gill (Mr Gill), and the respondents, the executors of the estate of the late Dr William Garrett. Mr Gill claimed that, after February 2009, Dr Garrett (Dr Garrett) told him that he wanted Mr Gill to continue living with him as his companion and carer until he died and in recognition of their friendship and care, Dr Garrett would give Mr Gill his house in Paddington (the Paddington Property). However, by his will dated 20 June 2008 (the Will), although he gave a significant legacy to Mr Gill, Dr Garrett gave the residue of his estate, which included the Paddington Property, to his three children, Alice Jemima Garrett (Jemima), Catherine Garrett (Catherine) and Thomas Garrett (Thomas), who are the executors of the Will (together the Executors).

4. Mr Gill commenced proceedings in Family Provision List of the Equity Division against the Executors, in which he claimed a declaration that the Executors hold the Paddington Property on trust for him. In the alternative, Mr Gill claimed a family provision order under the Succession Act 2006 (NSW) (the Succession Act). The Executors filed a cross-claim seeking possession of the Paddington Property and orders for the payment of money said to be owing to the estate by Mr Gill.

5. On 16 July 2020, for reasons published on that day, a judge of the Equity Division (the primary judge) dismissed all of Mr Gill’s claims and ordered that possession of the Paddington Property be given to the Executors by Mr Gill. In addition, on 23 October 2020, the primary judge made orders under the cross-claim that:

• the legacy of $200,000 given by Dr Garrett to Mr Gill in the Will be reduced by the sum of $152,134.80 being the balance of outstanding loans owing by Mr Gill to the estate of Dr Garrett;

• judgment be given for the Executors against Mr Gill for the sum of $43,155.64, being the amount owing to the estate of Dr Garrett for storage fees incurred by Mr Gill, and for the sum of $142,100, being the amount owing to the estate of Dr Garrett in respect of unauthorised cash withdrawals made by Mr Gill from Dr Garrett’s bank accounts; and

• Mr Gill pay interest on the judgment amounts in the sums of $7,360 and $24,208 respectively pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

6. By notice of appeal filed on 18 October 2020, Mr Gill appealed from the orders made by the primary judge. Mr Gill filed an amended notice of appeal on 1 February 2021. By the amended notice of appeal, Mr Gill seeks orders that the orders made by the primary judge on 16 July 2020 and 23 October 2020 be set aside and that it be declared that the Executors are estopped from denying that he is the equitable owner of the Paddington Property. While the amended notice of appeal seeks no relief under the Succession Act, the submissions and oral argument advanced on behalf of Mr Gill make it clear that he seeks, in the alternative, a family provision order under the Succession Act.

7. The proceedings in the Equity Division were commenced by summons filed on 3 November 2016 in the Family Provision List. In his statement of claim filed on 6 April 2017, Mr Gill alleged that he and Dr Garrett entered into a contract in 2009 whereby Mr Gill would continue to reside with Dr Garrett until his death as his carer and companion in consideration of which Dr Garrett would give Mr Gill the Paddington Property. The claim of a binding contract was not renewed in the appeal. In the alternative, Mr Gill alleged in the statement of claim that:

• Dr Garrett promised him that he would receive the Paddington Property if he continued to reside with Dr Garrett and provide services of companion and carer until Dr Garrett’s death and encouraged him to assume the role of full-time carer until his demise.

• Mr Gill acted on Dr Garrett’s alleged promise and encouragement to his detriment and altered his position in reliance upon that promise.

• In those circumstances, the Executors are estopped from denying Mr Gill’s claim to the Paddington Property.

In addition, Mr Gill claimed a family provision order under Ch 3 of the Succession Act.

8. By their cross-claim filed on 5 May 2017, the Executors claimed judgment for possession of the Paddington Property, where Mr Gill has continued to reside since the death of Dr Garrett. The Executors also sought declarations that Mr Gill had acted in breach of fiduciary duties owed to Dr Garrett and claimed equitable compensation.

9. Mr Gill’s principal claims were based on the alleged conversation that took place between himself and Dr Garrett sometime after February 2009. The primary judge did not accept that the conversation alleged by Mr Gill took place so as to constitute an offer and acceptance capable of giving rise to a binding contract. Further, because his Honour did not accept that the conversation alleged by Mr Gill took place, the first element of the estoppel case pleaded by Mr Gill was not made out. His Honour did not accept that the representations alleged were made by Dr Garrett. Further, his Honour concluded that Mr Gill did not rely upon any assumption or expectation as alleged in his pleading. Accordingly, the alleged estoppel was not made out.

10. Mr Gill claimed he was an eligible person under the Succession Act by the operation of s 57(1)(e) and s 57(1)(f). The Executors conceded that Mr Gill was an eligible person under s 57(1)(e), in light of which the primary judge did not examine eligibility under s 57(1)(f). However, the primary judge concluded that Mr Gill consciously misused Dr Garrett’s position of special disadvantage in relation to him and concluded that Mr Gill did not satisfy the requirements of s 59(1)(b) of the Succession Act. Accordingly, his Honour concluded that Mr Gill’s claim for a family provision order under Ch 3 must fail.

11. The primary judge then considered the claim by the Executors under their cross-claim. His Honour concluded that the Executors are entitled to possession of the Paddington Property. His Honour found that the executors were entitled to judgment in respect of the three items referred to above.

Dr Garrett and Mr Gill

12. Dr Garrett was born in 1927. In 1951 he graduated from the University of Sydney with degrees in medicine and surgery. He undertook further study at the University of Oxford, where he was awarded the degree of Doctor of Philosophy in Medicine in 1955. He was also awarded the degree of Doctor of Medicine by the University of Sydney in 1962.

13. While in the United Kingdom, Dr Garrett married his wife, Nancy. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, the Executors, were born. In 1959, Dr Garrett, with a team of research scientists and doctors began investigating whether high-frequency sound waves could be applied to image the pregnant uterus. By 1965, they had developed the foundations of ultrasonic pregnancy imaging as part of clinical practice at the Royal Hospital for Women in Paddington. By the early 1970s, the technology that they developed was in widespread use throughout the medical world.

14. Until 1981, Dr Garrett and his wife and their three children lived in Lindfield. The family then moved to a house in Goodhope Street, Paddington. The family also owned a holiday house at MacMasters Beach on the Central Coast. In July 1994, Nancy Garrett transferred to Dr Garrett a half share in a property in West Yorkshire owned by her. Nancy Garrett died suddenly in December 1994. Upon Nancy Garrett’s death, the Executors inherited their mother’s half share in the West Yorkshire property and Dr Garrett retained the other half share. From that time on, until he became incapable of looking after his own financial affairs, Dr Garrett managed the West Yorkshire property for himself and the Executors.

15. Nancy’s death affected Dr Garrett profoundly and, in 1995, he retired from medical practice. In 1998, he moved from the Goodhope Street house to the Paddington Property. An investment property acquired after the family moved to the Goodhope Street house was sold by Dr Garrett in 2005.

16. Mr Gill was born in New Zealand in 1957 and is a New Zealand citizen. Accordingly, he is some 30 years younger than Dr Garrett. After leaving school, Mr Gill obtained employment in the computer industry. He migrated to Australia in 1977 and obtained employment in the hospitality industry and as a taxi driver. In 1981, he re-entered the computer industry as a sales representative. In 1981, Mr Gill married an American citizen and moved to Los Angeles, where he continued to work as a computer broker. In 1987, he set up his own business as a computer broker, buying and selling computers and computer equipment in a partnership. After a dispute with his partner, he continued as a sole trader from 1989.

17. Mr Gill and his wife returned to Sydney in 1992. In 1997, Mr Gill and his wife separated after Mr Gill’s wife, having received a substantial settlement from litigation, returned to the United States with the proceeds of the litigation. At that time, Mr Gill was left with no more than $15,000 in assets. He resumed his computer broking business and lived in rented accommodation. He lived a financially self-sufficient but modest lifestyle, making enough from his business to make ends meet.

18. Dr Garrett met Mr Gill in 1996, at a time when Mr Gill’s marriage was breaking down. Mr Gill invited Dr Garrett to join a team that competed in a trivia night competition on Tuesday evenings at the Royal Hotel at Five Ways in Paddington. Not long thereafter, Dr Garrett and Mr Gill began meeting on most nights with a circle of friends at the Royal Hotel. The primary judge accepted that, at that time, Dr Garrett was looking for more convivial company and joining Mr Gill’s circle of friends at the Royal Hotel buoyed his spirits. Dr Garrett was generous in supporting social activities at the Royal Hotel, often buying drinks and dinner for Mr Gill and other members of the circle.

19. The relationship between Dr Garrett and Mr Gill developed into one of greater mutual dependence. The primary judge characterised the development of the relationship as surprising, in circumstances where Dr Garrett and Mr Gill were very different people. His Honour referred to the broad intellectual interests that Dr Garrett and Nancy Garrett had had with a wide circle of friends consistent with their “high achieving careers”. His Honour characterised Mr Gill as a man of “little demonstrable ambition”.

20. The primary judge found that, after the death of his wife, at a time when his children, the Executors, were at the most demanding stages of their own busy and successful professional lives, Dr Garrett was lonely and was in need of day-to-day companionship. His Honour found that Mr Gill was quick to fill the gap in Dr Garrett’s life and sized up Dr Garrett as “a potential source of financial support”. Mr Gill obtained financial advantages from Dr Garrett soon after their friendship commenced.

21. Thus, as early as December 1999, Dr Garrett lent to Mr Gill the sum of $1,800 and more and more loans followed over the next 10 years up to December 2009. The loans were recorded informally by Dr Garrett on chits, pieces of paper, ledgers, automatic teller machine receipts, cheque butts and notes kept by Dr Garrett in drawers and boxes in his bedroom. The total of the loans recorded in those materials was at least $146,306.80. The primary judge drew the inference from Dr Garrett’s keeping of the materials that the clear understanding between Dr Garrett and Mr Gill was that Mr Gill would repay the loans. His Honour drew that inference from the way in which the loans were recorded. His Honour found that Dr Garrett made the loans in the expectation that Mr Gill would repay him. However, Mr Gill failed over the period of about 10 years from 1999 to 2009 to repay more than a small part of the substantial loans.

22. In April 2003, a sequestration order was made under the Bankruptcy Act 1966 (Cth) against the estate of Mr Gill. Dr Garrett was unaware that Mr Gill was a bankrupt and the Executors were unaware of his bankruptcy until shortly before Dr Garrett’s death in 2015. Mr Gill also claimed that he was unaware of the bankruptcy. In any event, he did nothing in relation to it until the bankruptcy was annulled in 2016.

23. In July 2003, in anticipation of spinal surgery, Dr Garrett appointed Jemima, one of the Executors, as his attorney and enduring guardian. The primary judge found that the surgery undertaken by Dr Garrett in August 2003 preceded a slow physical decline for Dr Garrett. Nevertheless, Jemima had very little to do as her father’s attorney until 2007 and 2008, since he was competent and able to manage his financial affairs until then. His Honour found that, as Dr Garrett took pride in his independence, Jemima was reticent to interfere in her father’s private business.

24. In 2001, Mr Gill commenced renting an apartment in Glenmore Road, Paddington. The apartment was sold and he was required to vacate. As a consequence, he was left temporally without accommodation. At Dr Garrett’s invitation, Mr Gill moved into the Paddington Property to tide him over whilst he looked for other accommodation. He moved back into his former premises, which he rented from the new owners. However, in late 2003, he was given notice to vacate.

12. In November 2003, Mr Gill moved into the Paddington Property permanently. By that time, Dr Garrett and Mr Gill had been acquaintances for some five years. They were spending considerable time with each other almost every day, probably more so than with either of their families or friends. The primary judge found that the companionship of Mr Gill suited Dr Garrett and it worked well for Mr Gill financially because he borrowed money regularly from Dr Garrett who was very generous in entertaining and maintaining the lifestyle of his friend. Mr Gill did not have any active business from which he earned a regular income so had free time during the day. By this time, Mr Gill’s way of life was being funded by Dr Garrett. Moving in with Dr Garrett made Mr Gill’s future more financially secure at least in the short to medium term.

13. Dr Garrett treated Mr Gill generously as a guest in the Paddington Property, providing all food, alcohol, accommodation and facilities without any charge. Mr Gill’s own income from his computer broking business at the time was no more than $5,000 per annum and he soon became dependent on Dr Garrett’s generosity. Dr Garrett and Mr Gill never discussed the payment of rent or board at any stage that Mr Gill resided in the Paddington Property with Dr Garrett. In the events that occurred, Mr Gill became a long-term occupant of the Paddington Property.

14. The primary judge found that Mr Gill’s continued occupation of the Paddington Property was explained by the very different personalities of Dr Garrett and Mr Gill and by Dr Garrett’s declining mental competence. His Honour held that Mr Gill has very little sense of the separate interests of other people and that it is his own comfort and security that matters to him. His Honour considered that it would never occur to Mr Gill that staying in the house of another person for a number of years might be perceived as an imposition. His Honour found that Mr Gill’s first priority in life was to look after himself and to secure such advantages as he could from the people around him, in contrast to the weakness in Dr Garrett’s outlook, that he did not comprehend that Mr Gill could be exploiting his relationship with him. There was no evidence that Mr Gill ever actively looked for any other accommodation and was quite content to remain in the Paddington Property.

15. The primary judge said that Mr Gill came across in the witness box as an obliging person who simply had the best interests of his “best mate” Dr Garrett in mind. However, his Honour drew inferences that Mr Gill was in fact of a “more calculating bent” and that, very occasionally, that side was revealed to others. His Honour considered that the “peculiar combination of personalities” explained substantially, but not wholly, why Mr Gill continued to stay in the Paddington Property. His Honour considered that the other factor that explained why Dr Garrett continued to accommodate Mr Gill at the Paddington Property was the slow weakening of Dr Garrett’s mental competence, which was evident to other family members by 2006.

16. From the beginning of 2007, Dr Garrett began to shed responsibility for managing his own financial affairs and the financial affairs of the family. In the second half of 2007, Dr Garrett asked Jemima to take over the preparation of his tax returns for the previous two financial years. Jemima considered that, at that stage, he was no longer on top of the details of collating and sorting through the paperwork necessary to do his tax returns. During 2007, while working on Dr Garrett’s finances, Jemima discovered a substantial recurring liability for goods storage of approximately $500 per month being paid from Dr Garrett’s credit card as a direct debit and asked Dr Garrett what he wanted done. He replied that he wanted Mr Gill to “clear the storage facility”. In a conversation shortly thereafter, Dr Garrett confirmed to Mr Gill that he wanted the goods to be moved. However, the storage charges continued to accumulate for some years thereafter. Indeed, the storage fees were paid from Dr Garrett’s accounts or credit facilities until February 2015, when Mr Gill finally moved his goods, mostly into the Paddington Property. The total amount of the payments was $69,349.64.

17. In May 2008, Dr Garrett travelled to the United States to visit his daughter, Catherine, who lived in California. He took with him the materials that he had collected concerning the loans made to Mr Gill from 2002 to 2008 and Catherine helped him prepare a summary table of the loans. The total for that period was $103,166 less repayments of $5,135, leaving a balance of $98,031. The primary judge considered that a notable feature of the loans was that the overall quantum increased from 2004, the year when Mr Gill moved into the Paddington Property. His Honour drew the inference that Mr Gill’s daily access to Dr Garrett while living in the Paddington Property gave him far greater opportunities than before to ask for loans, which Dr Garrett seemed unable to resist making.

18. While in California with Catherine, Dr Garrett composed a letter to his solicitors outlining his relationship with Mr Gill and his testamentary intentions in general terms, as follows:

“The outstanding question on which I seek your counsel involves the amount I will leave to Jason Gill, who as you know is a friend who lives with me in my house. I have heard colloquially that there may be some issue as to the nature of his and my relationship and that upon my death he may have some legal claim to my estate. I have attached a short narrative which explains how Jason and I met and the circumstances under which he began living in my home, which began informally when I invited him to stay with me when he lost the flat he was living in at the time. While we both thought the arrangement would be temporary and have never formalized any agreements as to his tenancy or our living arrangements, we have come to a mutually agreed, informal understanding that he could continue living in my home rent free. While Jason has lived with me, he has helped with a number of things around the house, including cooking most meals and driving me as needed. In turn, since 2000 he has consistently borrowed money from me, of which I have kept a running tally, which I attach to this letter. Jason has always said he intends to pay back these loans, and on occasion has paid back small amounts, which are noted on the tally.

Therefore, I would like your advi[c]e on all rights and obligations that I have with respect to this relationship before I determine what, if anything, I will leave him in addition to the outstanding balance of his loans.”

32. The primary judge found that the letter constituted direct evidence of the existence at that time of a mutually understanding that Mr Gill could continue living rent-free in the Paddington Property. The summary of Dr Garrett’s testamentary intentions, in a spreadsheet entitled “Intent of Will”, stipulated that the Paddington Property, the MacMasters Beach property and the West Yorkshire property in were to be left to Dr Garrett’s children, the Executors, in equal shares. However, Dr Garrett indicated that he intended to leave his motor vehicle and a specified painting to Mr Gill and that he was intending to “forgive loans” and give a cash legacy to Mr Gill, although the amount was left blank. His Honour considered that the blank space indicated that Dr Garrett was expecting to receive advice from his solicitors on whether he should forgive the existing loans and what the proper cash amount of the legacy should be.

33. On 20 June 2008, after his return to Australia, Dr Garrett made the Will, which reflected the instructions given to his solicitors. The primary judge was confident that Dr Garrett was of sound mind when he made the Will and observed that his capacity to make the Will had not been put in issue. Dr Garrett’s solicitor, Mr Anthony Roberts, said that he had “absolutely no concerns” that Dr Garrett was anything other than capable and of sound mind to make the Will. His Honour accepted that assessment.

34. After legacies to his grandchildren and step-grandchildren, Dr Garrett and gave a legacy of $200,000 to Mr Gill in cl 4. He also made a number of specific gifts to Mr Gill, including the painting, and gave the rest and residue of his estate equally to his three children, the Executors. In the Will, Dr Garrett explained the reasoning for his gift to Mr Gill in the following terms:

“IN MAKING the bequest referred to in clause 4, I have given careful consideration and had due regard to the contribution made by the Devisee by way of assistance he has provided to me whilst residing at my home in the nature of cooking meals, general household tasks, driving me to appointments and the like and his general companionship. The bequest which I have made to him in my view fairly and reasonably reflects the value of the contribution that I believe he has made. From September 2002, I have from time to time advanced monies to the Devisee by way of loan and have maintained a record of advances so made and also all amounts which have been repaid. At the time of making this my Will the balance of the outstanding loan monies amounts to approximately Ninety eight thousand dollars ($98,000). It is my expectation and requirement that the balance of the outstanding loan, if any, at my death will be repaid to my Estate at that time.”

35. In the letter to his solicitors, Dr Garrett referred to a “short narrative”, which was a document in Dr Garrett’s handwriting headed “Confidential - Jason Gill” and which was later left with the Will. The primary judge found that the statement together with the Will constituted direct evidence from Dr Garrett about his relationship with Mr Gill. The handwritten document, after recounting some of Mr Gill’s background and personal misfortune, said as follows:

“He came to stay with me at [the Paddington Property] about 2002 and has remained with me since then. We are part of about 8 – 10 friends who drink regularly at the Royal Hotel, Five Ways, Paddington. I have not charged him rent and I buy virtually all the food and most of the wine at home. He has come to cook virtually all the meals. He is a very kind man and cooks about 2 or 3 meals a week for a disabled mutual friend, 48 years old who until recently has been bed-ridden with arthritis since his teens.

Jason’s occupation has been as a computer broker and has in the past has been very profitable but for about 6 years it has been collapsing, overtaken by new technology and he has come to borrowing from me. He now owes me $52,000. Against this he has paid me $6,249 to date and drives my car as chauffeur when I go to see my general medical practitioner or similar errand.

His furniture storage fees were put on my Visa card and this has continued over the years. I have recently drawn his attention to this.”

36. The primary judge considered that the document was a useful insight into Dr Garrett’s then views about Mr Gill. His Honour characterised it as being “reasonably formal, honourably demonstrating gracious friendship towards Mr Gill”. His Honour did not consider that it gave any intimation of a profound depth of obligation beyond the somewhat transactional calculation that ultimately appeared in the Will.

37. The primary judge observed that the structure of Dr Garrett’s testamentary intentions in June 2008, as expressed to his solicitors, and as perfected in the Will, contain no suggestion that the Paddington Property would be given to Mr Gill. His Honour considered that that was significant in relation to Mr Gill’s assertion in the proceedings that, by February 2009 at the earliest, no more than eight months later, Dr Garrett made an arrangement with him to give the Paddington Property to him in exchange for Mr Gill’s caring for him for the rest of his life. His Honour observed that there was no obvious explanation for such a significant change of heart in that eight-month period. Rather, his Honour found, all that happened in that eight-month period was that Dr Garrett’s physical and mental health declined.

38. In November 2008, Dr Garrett suffered a transient ischemic attack and was admitted to the stroke unit at St Vincent’s Hospital. He was expected to make a full recovery although, as result of which of the attack, he developed a speech difficulty described as expressive dysphasia. The primary judge found that, through rehabilitation and medical care, Dr Garrett tracked well but his speech never fully returned to its previous level. The attack had occurred in a period when Dr Garrett was continuing to drink heavily with Mr Gill. There were often empty wine and whisky bottles in the Paddington Property when Jemima visited during that time. Dr Garrett and Mr Gill continued to visit the Royal Hotel each day and to drink at home afterwards, often with friends from the Royal Hotel. Dr Garrett paid for those outings.

39. The primary judge accepted Jemima’s observations that the attack disabled her father further. From that time, she needed to shop with her father to buy his clothes and to buy birthday and Christmas presents that he wanted to give to others. He was no longer able to undertake such expeditions alone. By late 2010, Jemima was doing all of her father’s shopping without him, since it confused and exhausted him too much. Mr Gill did not accompany Dr Garrett on any of those shopping trips with Jemima.

40. The primary judge found that Dr Garrett’s family was heavily preoccupied with his immediate post stroke recovery after November 2008 and that Mr Gill was an important element of stability in the overall support for Dr Garrett during that recovery phase. His Honour observed that the family members each had doubts about the quality of Mr Gill’s care but those doubts were temporarily put to one side whilst Dr Garrett was supported back to better health. His Honour observed that removal of Mr Gill would have upset Dr Garrett and would have thrust difficult adjustments upon him at a sensitive time.

The Alleged Representation

41. In his affidavit of 7 April 2017, Mr Gill asserted that from time to time before 2009 he had conversations with Dr Garrett in which he reminded Dr Garrett about what he, Mr Gill, claimed he was sacrificing to be Dr Garrett’s companion. Mr Gill says that, on occasions, he said words to Dr Garrett to the following effect:

“I do worry about my future prospects. I am not getting any younger, I need to consider what I should do. I may have to get back into and concentrate on business.”

The primary judge accepted that Mr Gill probably did say something like that to Dr Garrett.

42. In addition, Mr Gill asserted in his affidavit of 3 November 2016 that, at some time after February 2009, he had a conversation with Dr Garrett to the following effect:

“Dr Garrett:   Jason, you have been such a good friend and I really appreciate you living here with me and attending to much of my day to day care. I could not do it without you. There is no way I want to go into an aged care facility. Our arrangement suits me and because it saves me a lot of money it suits my children. However it is not so good for you. I want you to continue living with me as my companion and carer until I pass away and in recognition of our friendship and care I will give you my house at [the Paddington Property]. I will attend to the legalities. What do you think?

Mr Gill:   That offer is very generous [Dr Garrett]. Thank you so much. You are a great friend and I agree to your proposal. We will continue the arrangement on a permanent basis, as you request.”

The primary judge was not persuaded that a conversation took place between Dr Garrett and Mr Gill in those terms.

43. On the other hand, the primary judge accepted that the general topic of Dr Garrett giving the Paddington Property to Mr Gill in his will was discussed between them. However, his Honour rejected Mr Gill’s evidence that the conversation set out above took place. The primary reason for rejecting that evidence is that his Honour considered that Mr Gill was an unreliable witness and did not believe him. His Honour also referred to other objective considerations that he considered supported that conclusion.

44. First, notwithstanding that such a conversation would probably have been one of the most financially significant conversations in Mr Gill’s life, no contemporaneous note or other record, such as email, was made confirming the conversation. His Honour observed that Mr Gill’s only corroboration was the evidence of eight witnesses described by his Honour as “the Paddington witnesses”, all of whom gave evidence about Dr Garrett talking about giving the Paddington Property to Mr Gill.

45. The second reason for the primary judge’s rejection of Mr Gill’s evidence is that his Honour did not accept that Dr Garrett had the capacity or the inclination to raise spontaneously and on his own initiative the possibility of offering the Paddington Property to Mr Gill. His Honour concluded that, given his declining capacities, Dr Garrett was incapable by February 2009 of coming up with an idea such as that and explaining it in the terms alleged by Mr Gill. His Honour considered that, if such a conversation had been held on Dr Garrett’s initiative, at a time when he was in full possession of his faculties and was exercising sound judgment, he would have first consulted Jemima about such a matter, since he had entrusted his financial affairs to her, and would have raised the idea with his family to whom he owed a great moral obligation. His Honour considered that a promise such as alleged by Mr Gill was inconsistent with Dr Garrett’s strong sense of family obligation and affection for his own children, the Executors.

46. Thus, Dr Garrett had recently reaffirmed that central bond in his life when he made the Will as recently as eight months prior to the alleged conversation. His Honour found that Dr Garrett and his three children were very close. The Paddington Property represented about half the value of Dr Garrett’s estate and was the single largest asset in his estate. His Honour considered that a gift of the Paddington Property to Mr Gill was in direct tension with his moral obligations to his own children.

47. Third, the primary judge considered that, if the statement “I will take care of the legalities” attributed to Dr Garrett had been made, Dr Garrett would have followed up the matter by engaging solicitors to formalise the arrangements. Mr Roberts, a partner in the firm of solicitors that had acted for Dr Garrett for some time, confirmed that Dr Garrett never took care of any relevant “legalities” after February 2009. His Honour considered that, if Dr Garrett were the moving party and author of such a proposal, it would be expected that Mr Gill would have been very keen to see it securely formalised as promised. However, Dr Garrett did not communicate his intention to his solicitor, his accountant, Mr Wayne Tilley, and or any of his children at that time.

48. Fourth, the primary judge considered that the statement attributed to Dr Garrett, that he feared going into an aged care facility, did not sit well with the evidence of Dr Garrett’s three children that at all times they did their very best to ensure that Dr Garrett was cared for in his own home until he died. His Honour found that none of the conversations between Dr Garrett and his children would have given Dr Garrett any basis to hold a fear that he might be placed in an aged care facility. His Honour considered that, if Dr Garrett had made the alleged promise, and meant it, Mr Gill had little to fear from raising the issue with Dr Garrett’s family thereafter. While they might not have liked the news, if Dr Garrett was sufficiently determined to put such a proposal forward, there was no reason why his children should not have been told. However, Mr Gill did not mention the alleged proposal to any family member until some six years later, in August 2015, when Dr Garrett was no longer in a condition to contradict what he said.

43. Fifth, the primary judge considered that a strange feature of the alleged proposal was that it was only ever discussed on one occasion between Dr Garrett and Mr Gill with no one else present. His Honour considered that it was surprising, if such a conversation took place, that it would have been mentioned only once between Dr Garrett and Mr Gill, in circumstances where they were together a substantial part of the day for years thereafter. His Honour considered that it was difficult to accept that, if such a proposal had been discussed once, it was not discussed thereafter on several occasions, particularly in the absence of any objective record being made of the proposal notwithstanding that Dr Garrett said he would address “the legalities”. Mr Gill lived with Dr Garrett, drove him around and would have had an idea of whether or not Dr Garrett had been to see a solicitor after the alleged proposal was raised. His Honour considered that Dr Garrett was a very ethical person who would have tried to honour any obligation that he consciously undertook. His Honour considered that the fact that Dr Garrett did not give instructions for a new will, given his character, is best explained by Dr Garrett not having made the alleged promise and his executive capability being dysfunctional by 2009 or 2010. His Honour said that the surprising generosity of the alleged offer made it more remarkable that the proposal was not discussed between Mr Gill and Dr Garrett privately over the ensuing years.

44. Sixth, the primary judge considered that the timing of the alleged promise by Dr Garrett in relation to his will of the previous year was a significant factor in deciding whether or not the alleged promise is credible. Clearly, a promise made before the Will could not be accepted because of the direct inconsistency between the promise and the terms of the Will. His Honour took into account the fact that Mr Gill was at one time uncertain about the time at which the alleged promise was made by Dr Garrett. Mr Gill said in his affidavit, of 3 November 2016, about 12 months after Dr Garrett’s death, that it was no earlier than February 2009 because in that month Dr Garrett and Mr Gill went to New Zealand to attend Mr Gill’s brother’s wedding.

45. However, on 19 August 2015, three months before Dr Garrett died, and closer to the time of the alleged discussion, Mr Gill’s solicitors wrote a letter alleging that the promise and agreement had been made “by about 2008”. Mr Gill agreed that he gave instructions for his solicitors to write that letter but sought to explain the reference to “about 2008” by saying that he was “panicking”. He said that he told his solicitors that the conversation was “2008-2009, something like that” and that he had not really clarified it in his head but that he subsequently clarified it and it was 2009. The primary judge did not accept that Mr Gill instructed his solicitors that the conversation took place in 2008 or 2009 since, if he had, it would probably have appeared that way in the solicitor’s letter. His Honour considered that the shifting account of the timing of the alleged conversation weakened Mr Gill’s account and that the change is better explained by the fact that Mr Gill obtained a copy of the Will after 19 August 2015 and before he swore his affidavit.

46. Finally, the primary judge found that Mr Gill was aware from what Dr Garrett had told him that, under the 2008 Will, he was going to receive $200,000. His Honour said that Mr Gill gave the impression in his oral evidence that he would be receiving the Paddington Property in substitution for the legacy of $200,000. His Honour considered that that was odd in itself because nothing in the conversations to which Mr Gill deposed indicated that the $200,000 legacy would not be renewed when the Will was revoked. Mr Gill accepted that he just took it for granted that the existing Will would be revoked and that he would get the Paddington Property instead. His Honour held that, if Dr Garrett had had a conversation such as was alleged and was in full possession of his faculties, he would have expected him, thorough as he was, to have attended to that not so minor detail and would have explained to Mr Gill that he would not be getting the $200,000 legacy as well as the Paddington Property. His Honour concluded that the fact that that subject matter was not in the conversation alleged by Mr Gill indicates either that the conversation did not take place or that, if it did, Dr Garrett was not in full possession of his faculties.

The Paddington Witnesses

53. Mr Gill called eight witnesses to whom the primary judge referred to as “the Paddington witnesses”. The evidence of a ninth witness called by Mr Gill, Ms Janet Greenwood, did not support any alleged statement that the Paddington Property would go to Mr Gill. Ms Greenwood was not cross-examined and the primary judge gave her evidence little weight.

54. Each of the Paddington witnesses gave evidence of Dr Garrett speaking between 2009 and 2011 about giving the Paddington Property to Mr Gill. A strong challenge was mounted against the accounts of the Paddington witnesses, each of whom was cross-examined to suggest that the conversations to which they deposed did not take place. However, his Honour generally believed each of the Paddington witnesses as to what they said they saw and heard.

55. The primary judge characterised the question about how Dr Garrett came to discuss an essentially private subject of his testamentary intentions openly with the Paddington witnesses as “intriguing”. His Honour found that, when fully competent, Dr Garrett closely guarded the privacy of his finances and personal affairs and would have regarded that subject as “none of their business”. His Honour considered that, by the time Dr Garrett was having the conversations in question with the Paddington witnesses, he had lost his capacity to avoid diplomatically being put in a situation that would have affronted his dignity when in full possession of his faculties. His Honour considered that it suited Mr Gill well for the matter to be discussed openly, since he wanted witnesses to the conversations.

56. His Honour recorded the claim by the Executors that the evidence of the Paddington witnesses was tainted because Mr Gill approached each of them saying something like “do you remember telling me that [Dr Garrett] was going to promise me the house”. His Honour found that Mr Gill was prepared to prompt the memory of some of the Paddington witnesses on significant matters. However, his Honour considered that the chief problem with the evidence of most of the Paddington witnesses was that they were “not alert to the underlying dynamic” of Dr Garrett’s mental weakness and that Mr Gill was actively utilising them as witnesses to assist him. His Honour considered that it was a strange contrast that, from 2009, as many as eight people were said to have witnessed the relevant conversations about the alleged arrangement and that Mr Gill was present at many of them but did not mention the arrangement once to Jemima prior to August 2015. His Honour concluded that Mr Gill was keeping his discussions with Dr Garrett about the question of leaving the Paddington Property to him from Dr Garrett’s family.

57. The evidence of the Paddington witnesses was only slightly different. The Paddington witnesses were as follows:

• Mr John Davies was a retired banker and the primary judge described him as “an essentially credible historian”. Mr Davies was unable to be any more precise than to say that a conversation occurred in about 2009 or 2010. He said that Mr Gill introduced the subject of Dr Garrett proposing to leave Mr Gill the Paddington Property although Mr Davies could not recall Dr Garrett saying anything in response.

• Mr Bruce Stephens remembered at least two and probably more conversations with Dr Garrett in which Dr Garrett described his “agreement with Jason” to the effect that he would leave Mr Gill the Paddington Property in his will. Although his Honour considered that Mr Stephens’ evidence was given honestly, his Honour did not consider Mr Stephens to be a witness upon whose evidence the Court placed great weight. His Honour considered that Mr Gill prompted significant aspects of Mr Stephens’ evidence.

• Mr John Duncan described himself as part of a regular lunch group that included Dr Garrett and Mr Gill and which often adjourned after lunch for drinks at the Royal Hotel. His Honour considered that, although Mr Duncan spoke in a straightforward manner and appeared to have a good memory, his Honour approached the evidence cautiously since his testimony was based in part upon a mixture of what he described as “common knowledge” in the lunching and drinking group.

• Mr Andrew Connolly had a long career as an air traffic controller. He was considered by his Honour to be a credible witness, having given careful evidence as might be expected from someone of that professional background. His Honour accepted the testimony of Mr Connolly that Dr Garrett said that he had decided to leave the Paddington Property to Mr Gill in his will.

• Ms Catherine Cook worked as a bartender at the Royal Hotel for a period of about two and a half years commencing in 2004. She became friendly with Dr Garrett and Mr Gill who were two of the regular customers. She described “Bill and Jason” as drinking at the Hotel “on most evenings” during that period. From 2007, Ms Cook worked in a nearby real estate agency but continued to drop in to the hotel to have a drink, where she maintained her friendship with Dr Garrett and Mr Gill. At Mr Gill’s invitation, Ms Cook accompanied them both on a trip to New Zealand in February 2009 for Mr Gill’s brother’s wedding. His Honour observed that parts of Ms Cook’s oral evidence differed from her affidavit evidence but under cross-examination she reaffirmed and recalled recollections and was able to add spontaneous detail about the occasions she remembered. His Honour accepted her recall of those conversations. His Honour did not consider that she was the kind of witness who would have been influenced by Mr Gill and his Honour accepted that a conversation took place as deposed to by Ms Cook. However, his Honour considered that Ms Cook’s assessment of Dr Garrett’s mental state was less reliable. She thought that, while his speech was “a little affected”, the incident in 2008 had not affected his mental capacities and he seemed his usual intelligent, mentally capable self.

• Mr Michael Greenwood is a landscape gardener and said that he witnessed a conversation with Dr Garrett that arose in quite a different context from that of the other Paddington witnesses. Mr Greenwood is the son of the late Mr Robert Greenwood QC and Mrs Janet Greenwood, who were both regular social acquaintances of Dr Garrett in Paddington and who were both regulars at the Royal Hotel. When gardening for Dr Garrett on one occasion in 2010, Dr Garrett and Mr Greenwood drove together to Dural and, on the journey, they had a conversation about the Paddington Property. His Honour found Mr Greenwood to be an honest and reliable witness who was only prepared to say to the Court what he actually remembered. His Honour considered that Mr Greenwood’s spontaneous account of the conversation in his oral evidence was the most reliable statement of what passed between the two of them, rather than what was contained in his affidavit. His Honour characterised the evidence given by Mr Greenwood as being consistent with, but as not fully corroborating, the pleaded agreement between Dr Garrett and Mr Gill. Thus, Dr Garrett talked about changing his will to benefit Mr Gill by giving him the Paddington Property but did not attribute that proposed gift to an agreement between himself and Mr Gill. His Honour did not accept Mr Greenwood’s assessment of Dr Garrett as being “quite well”. His Honour considered that Dr Garrett’s spontaneously “over sharing personal information” with Mr Greenwood was an indicator that Dr Garrett’s judgment was already faulty at the time of the conversation. His Honour considered that it was significant that Mr Greenwood observed that he would occasionally go back to the Paddington Property with Dr Garrett and Mr Gill after trivia nights and that on those occasions Dr Garrett would go to bed much of the time but would also come out and enjoy the convivial visiting company, depending upon how he was feeling.

• Ms Jennifer Filson was a Paddington resident, who lived about five minutes’ walk away from the Paddington Property. She often visited the Paddington Property for dinner and witnessed Mr Gill cooking meals. Mr Gill and Dr Garrett also visited her home in Paddington on many occasions as well. His Honour considered that Ms Filson was a “good witness”, describing with colour and animation the large dinner parties held at the Paddington Property for up to 20 people, with plenty of good wine and food being enjoyed by all. Ms Filson recalled at least two conversations at the Paddington Property, which she placed in 2009 or 2010, when Dr Garrett said to her that his agreement with Mr Gill was that he would live with Dr Garrett on a permanent basis and in return Dr Garrett would leave him the Paddington Property in his will. His Honour accepted that those words were said but that they were said in the middle of a large and noisy dinner party. His Honour did not accept Ms Filson’s assessment of Dr Garrett as being “sharp mentally” and that a dinner party for 20 people was not an environment that gave Ms Filson any advantage in assessing the then 82-year-old Dr Garrett’s mental state, judgment and alertness. His Honour considered that Ms Filson had a less detailed recollection than some of the other Paddington witnesses.

• Ms Patricia Byrne is a retired economics teacher and gave evidence by audio link from a retirement home in Queensland. His Honour considered her to be an astute and reliable person who spoke frankly and directly and that she was attempting to assist the Court as best she could. She was approached by Mr Gill to see if she could give evidence but that did not cause her to alter her evidence favourably to Mr Gill. Ms Byrne recalled, and his Honour accepted, that, in the last decade when she lived in Potts Point, she attended dinner parties at Dr Garrett’s home and held return parties at Potts Point. She described Mr Gill as a “good friend” of Dr Garrett and was among those who in January 2004 enjoyed a holiday in the Whitsunday Islands with Dr Garrett, Mr Gill and a wider group of mutual friends. His Honour considered that Ms Byrne’s capacity to judge Dr Garrett’s mental capability accurately was quite limited and did not consider that Ms Byrne was in the best position to judge such matters.

Conclusion as to the Discussions between Dr Garrett and Mr Gill

58. The primary judge drew inferences as to how a conversation about the Paddington Property probably unfolded between Dr Garrett and Mr Gill. His Honour began with the proposition that Dr Garrett was not mentally capable in February 2009 of planning and initiating such a proposal. His Honour considered that, if Dr Garrett were capable, he would have followed his initiative through and would have gone with it to his solicitor. Nevertheless, the evidence of the Paddington witnesses shows that the topic was on Dr Garrett’s mind. His Honour concluded that Mr Gill must therefore have initiated it. His Honour considered that Mr Gill regarded his looking after Dr Garrett as an altruistic act for which he felt he was strongly entitled to be rewarded. His Honour drew the inference that Mr Gill pushed the proposition to Dr Garrett that he, Mr Gill, should have the Paddington Property as the fair reward for caring for Dr Garrett.

59. Mr Gill flatly denied in cross-examination that he had ever suggested to Dr Garrett that he should have the Paddington Property. However, his Honour accepted that Dr Garrett said to Catherine and to Thomas that “Jason wants the house”. His Honour drew the inference that Mr Gill wanted the Paddington Property and was pressing Dr Garrett for exactly that and that Dr Garrett recalled and repeated Mr Gill’s request to his children.

60. The primary judge accepted that Dr Garrett may ultimately have given indications of some form of verbal assent to the idea that Mr Gill was pressing upon him. However, his Honour concluded that what happened between Dr Garrett and Mr Gill was nothing like Mr Gill’s account and that their exchange was far from the scene that Mr Gill painted, namely, a spontaneous act of generosity by an independent Dr Garrett in full control of his faculties. Rather, his Honour concluded, it was probable that Dr Garrett ultimately just outwardly surrendered to Mr Gill’s pressed suggestions, in circumstances that his Honour was not prepared to infer amounted to the formalities of a recognisable contractual offer and acceptance. His Honour concluded that, once Dr Garrett had surrendered, sometimes he could remember what Mr Gill had proposed to him and sometimes he could not but, in Dr Garrett’s “ever weakening mind” it remained Mr Gill’s idea to which he would assent from time to time when prompted, especially in Mr Gill’s presence.

61. The primary judge considered that that analysis was the best explanation for the anomalies in the case and explained why Dr Garrett did not take control of the proposal and advance it through his legal advisors and communicate it to his children. His Honour considered that it was consistent with the medical evidence that, by February 2009, Dr Garrett had impaired mental capability that made it improbable that he could have carried forward and taken responsibility for such an idea. His Honour considered that it also accounted for the evidence of the Paddington witnesses that Dr Garrett did in fact discuss the subject in front of them.

62. The primary judge placed considerable weight on the evidence of Professor Brennan who explained that in 2009 Dr Garrett was already suffering significant frontal lobe disease, with accompanying dysexecutive syndrome, which led to Dr Garrett having immense difficulty in undertaking the complex task of evaluating competing moral claims upon him, such that it became a task beyond him. His Honour concluded that that meant that, when Mr Gill pressed upon him the idea of giving him the Paddington Property in exchange for Mr Gill’s care, Dr Garrett was probably only able to focus upon the one claim immediately being made by Mr Gill and was incapable of appraising that claim in relation to the genuine and significant claims of his three children. As a result, his Honour concluded, Dr Garrett was incapable of calling for legal advice or doing anything other than surrendering to Mr Gill. His Honour considered that that loss of higher-level functions explained Dr Garrett’s inability to do anything about changing his will.

63. The primary judge concluded that that analysis also showed that, throughout the exchanges, Dr Garrett was, in relation to Mr Gill, in a position of special disadvantage by reason of his mentally weakened state and that Mr Gill well knew it. His Honour observed that Mr Gill had effective control of most aspects of Dr Garrett’s daily life, including his feeding, his mobility and his contact with others and considered that it was probable that Dr Garrett wanted to please Mr Gill in the same way in which he wanted to please him by making improvident loans to him and to others at the Royal Hotel for years before Jemima intervened. His Honour considered that Dr Garrett had shown for years that he had little ability to resist Mr Gill’s requests for money.

64. Mr Gill drew the attention of the primary judge to legal transactions in which Dr Garrett was involved in 2008 and 2009, presumably as an indication of his capacity to make a contract or a promise that could give rise to an estoppel. Thus, on 20 May 2008, Dr Garrett signed a binding nomination with respect to the disposition of superannuation. In early November 2008, Dr Garrett executed a deed of surrender in respect of a lease over the West Yorkshire Property. Both of those events were before the stroke of 17 November 2008.

146. Mr Gill’s reliance on an alleged failure to notify him of a liability for continuing fees is at odds with his earlier concession that he was liable to restore the entire amount of storage fees to the estate. However, whether he was specifically told he would be liable for further fees is, in the light of the surrounding evidence, immaterial. He was aware that Dr Garrett did not want the fees charged, he knew Dr Garrett was in a position of special vulnerability, and he continued to incur the charges anyway.

147. The primary judge made no error in concluding that Mr Gill’s conduct in continuing to derive a benefit from Dr Garrett’ recurring payments in respect of his storage fees after 17 November 2008 was unconscionable.

The Cash Withdrawals

150. The Executors sought recovery by way of equitable compensation of $142,100 withdrawn from Dr Garrett’s bank accounts by Mr Gill by use of automatic teller machines from 17 November 2008 up to Dr Garrett’s death on 5 August 2015, as well as withdrawal fees. The figure of $142,100 represents $58 per day that Mr Gill conceded he retained each day for his personal use in excess of household expenses, over the course of 2,450 days, across three different bank accounts. The Executors alleged that during that period, Dr Garrett placed trust and confidence in Mr Gill to carry out daily financial transactions on his behalf including cash withdrawals and was in a position of great vulnerability with respect to the functions reposed in Jason Gill, as would constitute a fiduciary relationship between them. They alleged that there was a breach of the fiduciary duty thereby owed by Mr Gill to Dr Garrett.

151. The primary judge found that the excess expenditure occurred only because Dr Garrett entrusted the withdrawal of cash to Mr Gill because he was incapable of doing it himself due to his vulnerable state. His Honour concluded that, in performing that specific task of cash withdrawal, Mr Gill was Dr Garrett’s fiduciary. No challenge has been made to the finding of a fiduciary relationship.

152. Mr Gill contends that primary judge erred in finding that Mr Gill was liable in respect of the money he withdrew in cash and “allegedly spent on his ‘personal expenses’”. However, it is clear that Mr Gill did apply a portion of the withdrawals toward his own purposes.

153. There was incontrovertible evidence of the spending from Dr Garrett’s bank accounts. Thus, Mr Gill accepted that he withdrew large sums from the three accounts during the period from 17 November 2008 to 5 August 2015. The cross-examination of Mr Gill concluded with the following question and answer:

“Q.   And I put it to you that during the period of time in which you were charged with and authorised to access these three bank accounts for the purposes of paying the household expenses, that you took it upon yourself, without any authorisation, to retain a total figure of $142,100 for your own personal benefit?

A.   It would seem to be the case, wouldn't it?”

154. The uncontroversial summaries of banking details provided to this Court, which were based on the primary documents, indicate something of the nature of the withdrawals. They include the following:

• 17 August 2009 “WITHDRAWAL AT ATM COURT HOUSE DARLINGHU[RST] NSW 160809 06:59” $400,

• 31 August 2009 “WITHDRAWAL AT ATM COLOMBIAN H SYDNEY NSW 290809 03:17” $500,

• 26 August 2010 “WITHDRAWAL AT BBLSATM PYRMONT 8124156D038651 260810” $500,

• 26 August 2010 “WITHDRAWAL AT ATM STAR CITY M PYRMONT NSW 260810 11:00” $500,

• 22 August 2011 “WITHDRAWAL AT ATM GOLDEN SHEAF DOUBLE BA[Y] NSW 210811 00:13” $300, and

• 19 September 2011 “WITHDRAWAL AT ATM COLOMBIAN H SYDNEY NSW 170911 04:24” $100.

In short, there were cash withdrawals in the early hours of the morning at automatic teller machines inside hotels, and at automatic teller machines near the Sydney casino.

155. In the month of July 2011, when Dr Garrett was in hospital, there were 10 withdrawals, in amounts of $200, $500, $600 x 2, $250, $300, $500 x 4. The timing and locations and amounts of those withdrawals bear squarely upon the factual challenge presented by Mr Gill in the appeal.

156. No challenge was made to the findings made by the primary judge as to Mr Gill’s use of cocaine. That too was put to him in cross-examination (although the inferences of large withdrawals from automatic teller machines close to a casino were not) and it was supported by contemporaneous accounts from Dr Garrett’s children, written at a time when they were seeking to reach an accommodation with Mr Gill, before the litigation had commenced.

157. In light of those observations, there is little doubt that Mr Gill was applying portions of Dr Garrett’s money toward his own personal benefit. However, Mr Gill further submits that Dr Garrett and Jemima were aware of his withdrawing cash and using it to pay Dr Garrett’s living expenses and his own personal spending.

158. The Executors point out that Mr Gill did not tell Jemima that he was accessing Dr Garrett’s accounts and withdrawing cash. Mr Gill conceded in cross-examination that he did not tell Jemima that he was withdrawing money from one of the accounts, although he said he assumed that she knew what transactions were being made on Dr Garrett’s accounts. In relation to the other two accounts, he conceded that he retained cash that he withdrew for his own purposes and that he was not authorised to do so. He further conceded that he did not seek Jemima’s consent or authorisation to retain part of the money for his own purposes and did not inform her that he was doing so.

159. In the absence of a challenge to the primary judge’s finding that Mr Gill was in a fiduciary relationship with Dr Garrett, it is difficult to see any error in the primary judge’s reasoning and conclusion. Mr Gill was entrusted with access to Dr Garrett’s bank accounts and he used that access to obtain personal benefits without informing Dr Garrett’s attorney. There was no error on the part of the primary judge’s conclusions concerning the cash withdrawals.

Conclusion

160. The primary judge did not err in concluding that Mr Gill failed to establish that Dr Garrett made a promise or representation upon which Mr Gill relied in acting to his detriment so as to give rise to a proprietary estoppel. Further, Mr Gill has not established that the primary judge erred in concluding that there were not factors warranting an application for a family provision order by Mr Gill. Finally, his Honour made no error with respect to the storage fees and the cash withdrawals sought under the cross-claim. It follows that the appeal must be dismissed with costs.

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Endnotes