Bampton v Vourlides [2024] QCA 191

SUPREME COURT OF QUEENSLAND CITATION: Bampton v Vourlides [2024] QCA 191 PARTIES: WILLIAM JOHN BAMPTON (appellant) v SUZANNE ELAINE VOURLIDES (respondent) FILE NO/S: Appeal No 767 of 2024 DC No 2560 of 2021 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane – [2023] QDC 248 (Sheridan DCJ) DELIVERED ON: 11 October 2024 DELIVERED AT: Brisbane HEARING DATE: 15 May 2024 JUDGES: Bond JA and Crow and Crowley JJ ORDER: The appeal is dismissed, with costs. CATCHWORDS: GIFTS – GIFTS INTER VIVOS – OTHER MATTERS – where the donee is the only daughter of two children of the donor – where the donor was living with and being cared for by the donee – where in March of 2018 the donor paid a deposit and signed a contract for a purchase of a property with his only son – where in April of 2018 the donor executed a new will with provisions that the donee would be paid her share of the estate upon her husband’s death – where in August of 2018 the donor drew a bank cheque for the donee – where donee held enduring power of attorney granted by donor – where statutory presumption of undue influence under s 87 of the Powers of Attorney Act 1998 (Qld) applies – whether donee successfully rebutted presumption of undue influence – whether the donor and donee had a major altercation in the days leading up to the drawing of the bank cheque Evidence Act 1977 (Qld), s 92 Powers of Attorney Act 1998 (Qld), s 87 Baker v Affoo [2014] QSC 46, followed Birch v Birch [2020] QCA 31, considered Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, cited Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14, followed -- 1 of 51 -- 2 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited GLJ v Trustees of Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, followed Gunn v Meiners [2022] WASCA 95, cited Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, followed Kavanagh v Londy [2024] QCA 140, cited Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, followed Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6, cited Suvaal v Cessnock City Council (2003) 77 ALJR 1449; [2003] HCA 41, followed Tep v ATS Australasian Technical Services [2015] 2 Qd R 234; [2013] QCA 180, cited Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49, followed Wang v Hur [2024] QCA 126, followed Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3, cited COUNSEL: A J H Morris KC, with I A Erskine, for the appellant M P Amerena for the respondent SOLICITORS: Barclay Beirne Lawyers for the appellant Mark Treherne & Associates for the respondent [1] BOND JA: On 14 March 2018, the then 87-year-old appellant, already a financially comfortable self-funded retiree, won $986,212.30 on the Golden Casket lottery. [2] By mid-April 2018 he spent $555,045 buying a house for his son, Larry. He purchased it in their joint names with the intention that on his death the whole of his interest would pass to Larry. On 8 August 2018, he gave the respondent, his daughter Suzanne, $300,000 in the form of a bank cheque in her name. [3] The appellant was content with the fact of his gifts to his children for more than 3 years. However, by 2021 his good relationship with Larry continued, but his relationship Suzanne had completely broken down. The appellant remained content with his gift to Larry, but on 30 September 2021 he commenced a proceeding in the District Court against Suzanne seeking to recover from her the value of the gift which he had made to her 3 years earlier. [4] The appellant’s proceeding against Suzanne was based on presumed undue influence, actual undue influence and actual unconscionability. [5] The former ground existed because both Larry and Suzanne were the appellant’s joint attorneys with respect to health and financial matters under an enduring power of attorney. Accordingly, pursuant to s 87 of the Powers of Attorney Act 1998 (Qld), there was a rebuttable presumption that the appellant had made the gift under the undue influence of the attorney who received it. -- 2 of 51 -- 3 [6] The latter two grounds were founded on the appellant’s contention that a heated argument between he and Suzanne had taken place a few days before he made the gift to her the nature of which (and the effect on him) was such as justified a finding that the gift to Suzanne was made in circumstances of actual undue influence and unconscionability. [7] The primary judge dismissed the appellant’s claim. Her Honour found that Suzanne had rebutted the presumption of undue influence and her Honour was not persuaded of the appellant’s actual undue influence and unconscionability cases. [8] By the present appeal the appellant seeks to overturn the primary judge’s findings in that regard and to obtain the orders from this Court which he had failed to obtain below. [9] For the following reasons, I would conclude that the primary judge’s findings should not be overturned. I would dismiss the appeal, with costs. The appellant had mild cognitive impairment which affected his behaviour, but nevertheless had capacity to make independent financial decisions [10] Indicative of the breakdown in the relationship between Suzanne and the appellant was the fact of Suzanne’s April 2021 application in the Queensland Civil and Administrative Tribunal (QCAT), by which she sought the appointment of an administrator and a guardian over the appellant’s affairs. QCAT dismissed the proceeding on 12 August 2021. [11] Nevertheless, the whole of the QCAT file was in evidence before the primary judge without any limitation being placed upon the use which might be made of documents contained within it. It was evidently significant in the primary judge’s formation of the view which she took of the appellant’s evidence and of his decision-making for the purposes of the issues before her. Accordingly, and before identifying the other relevant factual background, it is appropriate to record the relevant parts of that material (supplemented in some respects by the testimonial evidence before her Honour) and the conclusions which the primary judge drew from that material. [12] By the time of a medical consultation in 1995, the appellant had a medical history which had involved obsessive worrisome ruminations and depressive symptoms. He was treated with psychotherapeutic support and medication. [13] In 2012, the appellant’s wife, Elaine, suffered a stroke and the appellant became her carer. They moved into an aged care facility in about 2014. In mid-2015 a medical management plan for the appellant revealed that he was still assessed as having problems with depression. His management plan included that he continue with sessions with a psychologist. [14] In August 2015, the appellant’s GP referred him to Dr Runganga, a geriatrician, for review of “memory and behaviours”. The appellant attended with his wife. On 11 September 2015, the geriatrician reported:1 “[The appellant] was Elaine's carer but was experiencing increasing difficulties with associated frustration, anxiety and agitation, Staff 1 Emphasis added. -- 3 of 51 -- 4 have now increased services and also supervise his medications which he forgot to take. He is otherwise independent with personal carers and light meal preparation, mainly microwave meals. He has a long history of post-traumatic stress disorder with associated nightmares, dream enactment as well as anxiety/depression. He worked for the defence force for several years in the printing department and states he frequently dealt with sensitive "top secret information". His wife reports the dream enactment occurred almost every night and he often wakes up "wailing", fighting and screaming for help, trying to escape from people who are out to shoot him. He has had psychiatry and psychology input and states he tried several medications over the years. He finds current psychology sessions useful and reports some improvement on duloxetine. Collateral history from staff and his wife revealed a recent history of paranoia. He is usually suspicious of staff intentions and believes other residents are out to stir him up and damage his belongings. lie accuses them of tangling his hose and burning his plants. He has had arguments with multiple residents and has now alienated himself. There is no history of physical aggression, and he denies visual or auditory hallucinations.” [15] Dr Runganga reported that the appellant’s concerns were “consistent with mild cognitive impairment” and recommended psychology input and non-pharmacological management with behaviour management plan, redirection and avoiding triggers. She recommended that the appellant’s cognition and behaviours would need monitoring. Dr Runganga also gave evidence at trial before the primary judge. She clarified that her opinion that the appellant’s concerns were consistent with mild cognitive impairment was not intended by her to exclude the possibility of other causes, such as medications; sleep disorders; or other mental health disorders. That was why she had recommended monitoring. In fact, she never saw the appellant again. [16] Elaine died in December 2015. The aged care facility recorded continuing concern in relation to aspects of the appellant’s mental state and paranoid and inappropriately aggressive behaviour. [17] Thus in February 2016, a report by a nurse at the facility (Ms Warren) requested a general practitioner to review the appellant. The request recorded:2 “I have had discussions with the family yesterday after a prolonged episode with [the appellant] that exhibited paranoid delusions. He is exhibiting high stress levels, he is extremely jumpy, he is verbally combative and aggressive (in particular and majority toward other residents from the resident committee) but staff and family also. He is demanding that deceased residents need to make amends with him, but when I explain the logistics to that, he demands the 2 Emphasis added. -- 4 of 51 -- 5 deceased resident’s friends apologise on his behalf??? [It] doesn't make sense. I cannot ask for this to happen about events that took place 12 months ago, nor do I wish to offend the deceased parties wife. Family are very concerned with his behaviour as he has been staying with them on and off for 3 weeks. … Please could I get a mental health plan out to Claudia to assist me. The PTSD is underlying there and I am out of my scope with assisting anymore than I am. Could you assist also by having a chat to him, medication if necessary, other suggestions as you feel fit and I will follow it all.” [18] In May 2016, Ms Warren emailed the appellant’s general practitioner in these terms:3 “Please see attached the referral to the Psych. I rang them today and they have confirmed that [the appellant] is attending their practice routinely. When I review his medications though I notice he isn't on anything for depression / anxiety. Also he is not seeing the psychologist but maybe he could see her and the psych? He mentioned today to our lifestyle lady that he has received multiple traffic/ speeding fines lately. He also mentioned that he ran a red light yesterday but its ok because the other cars stopped for him. He has a very fractured relationship with family since the passing of his wife and he is being verbally abusive toward his family and staff on site (on occasion). He has paranoid delusions that his family are after his money, to name a few. He is very trouble still about the past relationship between a now deceased resident and speaks often of retribution. I am just worried that he is presenting at the Psych without the full story/ picture, when in reality we can see he is having a difficult time. Could you perhaps even just update the psych in writing and advise of the changes in personality in case he is not aware, and possibly he may like to medicate? I am happy though, that he is seeing someone about his issue, but could you please think about it. Thanks” [19] On 18 August 2016, Dr Eyears, a psychiatrist who had been the appellant’s treating psychiatrist since 2004, reported to the general practitioner in terms which revealed that the appellant had at least some insight into his inappropriate and irrational behaviour. Amongst other things, Dr Eyears reported:4 3 Emphasis added. 4 Emphasis added. -- 5 of 51 -- 6 “[The appellant] had acknowledged he found himself excessively irritable with others at the retirement village. l had increased his [medication]. [The appellant] reports that he can still feel frustrated with others but is more considered in how he deals with things. [The appellant] himself felt he had been unreasonable about some things when his mood was lower including phoning up his daughter about 'contesting the will' but now regards this as having been irrational. He reports getting along well with his daughter [Suzanne] again. [The appellant] does have a longstanding history of recurrent severe depression (with prominent anxiety) but has largely coped well with occasional dips in his mood while on [medication]. He had to retire from his Defence Dept work with anxiety-depression. …. [The appellant’s] mood is currently improved. There are additional cognitive changes that no doubt are affecting his coping and dealings with others. I have asked if [the appellant] can organise for his daughter to be involved in a discussion about how [the appellant] is coping.” [20] In January 2017 the appellant moved out of the aged care facility and moved in with Suzanne and her husband. Suzanne received a carer payment from Centrelink for caring for the appellant. Her application for such a payment contained a report from Dr Eyears, as the Treating Health Professional. The report was signed by Dr Eyears on 24 March 2017. Amongst other things, Dr Eyears’ report noted that: (a) the appellant had physical, intellectual and psychiatric disabilities. (b) the appellant was being cared for, amongst other things, dementia and depression. (c) the appellant’s “disability/medical condition” was permanent and was not likely to improve; (d) the appellant was cognitively impaired and that – (i) he showed signs of depression most of the time; (ii) he showed signs of memory loss most of the time; (iii) he withdrew from social contact sometimes; (iv) he displayed aggression towards himself or others often; and (v) he displayed disinhibited behaviour often. [21] Dr Eyears gave evidence before the primary judge confirming the correctness of the facts and opinions expressed in his 18 August 2016 and 24 March 2017 reports. The appellant had been his patient for about 16 years between 2004 and 2020 and during that time Dr Eyears had observed a decline in his psychiatric condition. He was specifically cross-examined as to the use of the word “dementia” in the 24 March 2017 report. The word used was not his, although he accepted that by his signature he had confirmed it. He confirmed that he was comfortable to sign off on the fact -- 6 of 51 -- 7 that there was some form of dementia present, albeit that he acknowledged that the word could encompass a spectrum of seriousness. [22] Despite Dr Eyears’ then willingness to sign off on the use of the word “dementia”, it was accepted by the parties before the primary judge that the appellant did not have that disease. Although the evidence plainly supported the conclusion that he had a mild degree of cognitive impairment and that that condition affected his behaviour in significant respects, there was no suggestion at trial that he lacked capacity to make financial decisions independently. Indeed, the evidence was to the contrary. [23] The primary judge recorded of the medical evidence which dealt with capacity:5 “For the purposes of the hearing, it was accepted that [the appellant] does not have a diagnosis of dementia. The principal medical opinion dealing with the condition of [the appellant] was that contained in a health professional report by Dr Fraser, psychiatrist, dated 8 July 2021. Dr Fraser had known [the appellant] for two months prior to writing the report. Dr Fraser opined that [the appellant] had a mild degree of cognitive impairment, but believed he still had capacity. Dr Fraser also wrote a report dated 10 June 2021 to the solicitors for [the appellant] acting in the QCAT proceedings, after he had seen him on two separate occasions, stating that he believed that [the appellant] had testamentary capacity. Dr Fraser stated that [the appellant] understood the meaning of a will, knew what assets he had, knew who he wanted to leave those assets to, knew who might make a claim on the will and did not have a disease of the mind which deprived him of the ability to think rationally. The evidence also included a health professional report from Dr Kanagasabai, general practitioner, dated 26 May 2021. Although the doctor had only known [the appellant] for a month, the doctor says that he had an adequate ability to understand and act on information relevant to decision making with respect to his financial affairs and was capable of making decisions freely and voluntarily. The doctor also said that she did not consider that [the appellant] was influenced positively or negatively by any specific person. In dismissing the applications made by [Suzanne], QCAT principally relied upon the opinion of Dr Fraser.” [24] The primary judge accepted the medical evidence which supported the conclusion of the appellant’s capacity to make his own financial decisions. Her Honour found: “[The appellant’s son Larry] in his oral evidence agreed with the proposition that his father was a fiercely independent person and that he had a capacity to make his own financial decisions. In his statement filed in the QCAT proceedings, [Larry] described his father as "an intelligent, strong-willed man". He recorded that [the appellant] had said to him that “he does not want to be told what to do or to be talked down to". 5 The primary judge’s reasons, at [112] to [116]. -- 7 of 51 -- 8 Those descriptions of [the appellant] are appropriate as is [the appellant’s] self-description recorded by [Larry]. It is difficult to imagine anyone being able to tell [the appellant] what to do, or anyone so dominating his mind that he was prevented from exercising his free will.” The relevant factual background [25] At the time of his lottery win in March 2018, the appellant was still living with Suzanne and her husband at their Bundall house. The appellant paid them about $250 per week for board and rent. [26] Within a couple of weeks of his win, the appellant had signed a contract for the purchase of a 4-bedroom house at Mountain Creek by he and Larry as joint tenants. The contract was completed on 11 April 2018. The appellant paid the purchase price and some transaction costs, totalling $555,045. [27] From the time of the purchase, Larry ensured that the appellant had his own bedroom and bathroom in the Mountain Creek house and that the appellant could come and go to that accommodation as he pleased. Nevertheless, the appellant continued to live with Suzanne and her husband. [28] The appellant had an adverse view of some aspects of the previous behaviour of Suzanne’s husband and formed the intention that he should not benefit from anything which was left to Suzanne. Accordingly, on 12 April 2018, he executed a new will which – (a) appointed Larry and Suzanne as executors; (b) confirmed his intention that the Mountain Creek property and his Commonwealth Bank of Australia (CBA) shares would be left to Larry; (c) split the residuary estate as follows: (i) 40% to Suzanne; (ii) 10% to Larry; (iii) 10% to each of his four grandchildren and great grandson; (d) conditioned Suzanne’s receipt of her 40% share on her husband pre-deceasing her. [29] In May 2018, the appellant explained to Suzanne what he had done in his will. On 15 May 2018 that led to some heated interaction between the appellant, on the one hand, and Suzanne and her husband on the other. Light was shed on the nature of the interaction in May 2018 by a letter of apology which the appellant wrote to Suzanne and her husband concerning a few days after the heated interaction. The letter of apology stated:6 “I am very sorry for my bad behaviour on Tuesday 15/5/2018 there was no reason for my bad actions that night, We all have the right to 6 Emphasis added. -- 8 of 51 -- 9 express our own opinions and I over expressed mine, and for that reason I would dearly like to point out my feelings of sorrow and regret, I plead that you and Jim will accept this letter as an expression of my heart, I am learning that some things are best not said. I have come to the conclusion that my stupidity in regards to my actions in the will was not called for, although I was under the impression that it was to protect you in the future, you have clearly indicated to me that it was a stupid idea because you may not live long enough to enjoy the money, you have convinced me that I must change the will again, please try to understand that my concern was for your future not punishment for the bad things you think you may have done since living here, I tried my hardest to prove to you that it was all through love not hatred, there is no reason for me to feel any hate because I know and so should you that I have never thought badly of you or Jim it was purely his past performance that worried me, I was scared that it may happen again in the future. Please understand that the $300.000 I have paid to Larry for half the house is from love, I now know that Larry at least has some where to live, it's a good feeling to think he could settle down and retire one day, your mother and I now feel we have done something with the will, I didn't think about you missing out which certainly was not my intention, I knew you were buying a house and when that happens you would be getting the same, I should have been more considerate and told you, there again you have been hurt certainly not by my intention, I should have been more considerate, sorry to have given you the idea you were being left out by punishment, I have told Jim since, I will give you a cheque when you decide to buy, if I give it to him now it might affect his pension. The existing will now is to be changed from this date, You were to get 40% of all money Larry, [and each of 4 named grandchildren and 1 named great grandson] 10%, altogether there would have 6 x 10% and 1x40%, This would prove to you that my intention was not to favour Larry and punish you. With the exception of my stupid way you were to get yours. Once again (SORRY FOR THE HURT).” [30] Despite the terms of that letter, the appellant did not wait until Suzanne and her husband had fulfilled their intention to buy a house, before he decided to make a $300,000 inter vivos gift to the appellant. It was common ground that on about 8 August 2018, the appellant attended upon his bank, drew a $300,000 bank cheque in favour of Suzanne and gave the bank cheque to her. She then deposited the cheque with her bank with the result that $300,000 was transferred from the appellant’s account to the joint account she held with her husband. [31] Why, and in what circumstances, that occurred was the principal factual controversy in the proceeding which the appellant eventually commenced against his daughter over 3 years later. -- 9 of 51 -- 10 [32] The appellant’s case was that the gift arose out of an altercation between the appellant and Suzanne concerning whether the appellant was unfairly favouring Larry over her, which occurred a few days before the gift was made. It is convenient to refer to this altercation as “the August altercation”. Although out of order chronologically, it is convenient to interpolate what each side eventually pleaded about the August altercation. [33] The appellant’s pleaded case concerning the August altercation was as follows: (a) The August altercation took place in early August 2018 when he had taken Suzanne and her husband to dinner at the Bundall Hotel on the Gold Coast. (b) During the dinner Suzanne demanded of him (in an insistent tone) in substance and effect “... tell me the terms of your latest Will”. (c) He refused by stating words in substance and effect “not here - at home please”. (d) Suzanne persisted stating (in an insistent tone) words to the effect “... its not fair that [her brother] Larry obtains a benefit of $600,000 from your Estate.” (e) He felt embarrassed and that it was inappropriate that such a conversation take place in a public place and accordingly left the Hotel and commenced walking home. (f) As he was walking home, Suzanne and her husband drove up to him, told him to get in the car and then drove home. (g) When they arrived home the appellant announced he was going to bed, but Suzanne obstructed his pathway to his room and there was a heated exchange between them in which she conducted herself in a threatening manner as follows: (i) Suzanne shouted at the appellant words in substance and effect “... you are going to tell me before you go to bed why Larry gets more than me – I want $300,000”; (ii) the appellant responded with words in substance and effect “… No ... , it's going in the Will”; (iii) Suzanne persisted shouting at the appellant with words in substance and effect “... I want $300,000 and I want the shares - as well” referring to a parcel of Commonwealth Bank Ltd shares owned by the appellant; (iv) the appellant replied in words in substance and effect “... No ... the shares have already been spoken for in the scheme of my Will and my Estate …”; (v) Suzanne continued shouting at the appellant with words in substance and effect “... what I want you to do, is split the Estate in half so that I get half and Larry gets half and I want the shares as well ...”; (vi) The appellant relented to the demands of Suzanne stating to Suzanne words in substance and effect “... if that's what you want, that's what you get”; -- 10 of 51 -- 11 (h) Once he said that final statement, Suzanne got out of his way and he went to his bedroom. [34] The appellant’s pleaded case was that the reason he relented to the demands of Suzanne during the August altercation by stating the words “… if that’s what you want, that’s what you get”, was that: (a) Throughout the August altercation Suzanne conducted herself in a threatening and intimidating matter towards him and when at home, blocked and obstructed his egress from the kitchen. (b) Throughout the August altercation, he did not have the, or any sufficient, physical strength to move Suzanne out of the way in order that he could egress from the kitchen; was in a state of deep distress at the prospect of refusing or failing to give into her demands; was fearful for his immediate safety; was fearful for his ongoing safety in the event that he refused to give in to Suzanne’s demands. (c) As a consequence of Suzanne’s words and conduct, he reasonably believed he would suffer physical harm or injury if he refused or failed to give into her demands of the Defendant. (d) He was overwhelmed for fear of his own safety; felt under imminent threat of harm; felt physically sick; felt intimidated and scared; and considered that he had no alternative other than to give in to Suzanne’s demands when his intention had been that monies would only pass to Suzanne under his will. [35] Amongst other things: (a) Suzanne pleaded that – (i) the appellant was financially literate and numerate and both had the capacity and did engage solicitors if he required legal advice or assistance in managing his affairs. (ii) his life experience generally enabled him to understand the purpose, nature and extent of the gift and whether or not in his own circumstances (including lotto winnings), he could reasonably afford the making of the gift. (b) Suzanne pleaded a denial that the August altercation had happened at all. She pleaded a positive case that in 2019, after a conversation to different effect, in the course of a dinner at the Bundall Hotel attended by the appellant, her husband and her, the appellant shouted “Not here”, banged the table, left the table and the hotel, but was thereafter picked up by her and her husband and driven back to their home. (c) Importantly, in response to the pleaded allegations that Suzanne had conducted herself in an intimidatory manner towards her father which had affected him in the way he had pleaded, Suzanne pleaded a positive case which went beyond the ambit of the positive case which she had pleaded in response to the plea of the fact of the August altercation and asserted (emphasis added): -- 11 of 51 -- 12 (i) That she had not conducted herself at any time in a threatening and intimidating manner towards her father. (ii) That she had not at any time blocked or obstructed her father’s egress from the kitchen at her home. (iii) Her father had, in or about 2018, sufficient physical strength to throw a slide projector he had mistakenly thought had been stolen by the defendant's husband, 6-foot across the room when its presence in a cupboard in his room had been pointed out to him. (iv) In fact, her father was never overwhelmed for fear of his own safety; never felt under imminent threat of harm; never felt physically sick or intimidated or scared on account of any words or actions by her. (v) In fact, her father always considered he would decide how he would conduct his own affairs. (d) Suzanne pleaded that if it had ever been the appellant’s intention that the monies would pass to her under the will, then his intention had changed by the time he gave her the monies. She pleaded that he had ample opportunity to obtain independent legal, financial or business advice prior to making the gift. [36] As has been mentioned, the appellant’s pleading relied on the statutory presumption of undue influence which arose pursuant to s 87 of the Powers of Attorney Act 1998 which provides that “the fact that a transaction is between a principal and … an attorney under an enduring power of attorney … gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence”. For her part, Suzanne admitted that pursuant to s 87 a presumption of undue influence arose in relation to the $300,000 gift but pleaded that the presumption was rebutted as the gift: (a) was the result of the free exercise of the appellant’s independent will; and (b) further and alternatively, of a nature which the appellant might reasonably be expected to make; and (c) further and alternatively, of a value that was not more than what was reasonable, having regard to all of the circumstances and, in particular, the plaintiff’s financial circumstances, his age, his own needs and his natural desire as a parent to share his good fortune with and to the benefit of both of his children. [37] As has been mentioned, the appellant did not immediately seek to avoid the gift to Suzanne. Nor did he seek to move out of Suzanne’s home (where he said he had been overwhelmed with fear for his own safety) into Larry’s Mountain Creek home (where Larry was keeping a room available for him). But that is not the only behaviour by the appellant which is difficult to reconcile with his version of what happened during the August altercation. There was some objective evidence that within a few months after the August altercation he may have (as he did a few months earlier in relation to the May incident) come to regret some part of his prior conduct towards Suzanne and to regard it as unfounded in reality. The evidence was in the form of two birthday cards which the appellant gave to Suzanne in 2018. Suzanne’s birthday is in November. -- 12 of 51 -- 13 [38] One of the two cards conveyed this message (emphasis added): “Sue, I really love you sue it [breaks] me up when we have these arguments, I just don’t know how to redeem myself from my actions, I know I do my temper very quickly and make a lot of stupid remarks about things that has nothing to do with the arguments its just the Bampton coming out of me. So please accept this apology from me as your farther it’s given with love, you are and will always be my loving daughter I love you and will always love you, the reason I have typed this is my hand writing is not legible so please accept this as a hand written letter from the bottom of my heart, Love You Always and forever, From,Father,Daddy,John (sic)” [39] The other card conveyed this message: “Dear Sue, Please forgive me for not recognising the action of the word Love. I have been in a non-coherent state the last few years, now I have finally opened my eyes, thank you for all that you have done the last couple of years with no reward from me, but from now on I hope to be a different father altogether. …” [40] Against that background, the table below records the chronology of the events which led up to litigation between the appellant and his daughter in 2021. Date Event 21.08.19 The appellant executed another will. Larry and Suzanne remained as executors. The CBA shares still went to Larry. The residual estate was split: • 25% to each to three grandchildren; • 5% to another grandchild; • 5% to each of two great grandchildren; • the remaining 10% to Larry and Suzanne, in equal shares. 21.08.19 The appellant completed a fresh enduring power of attorney in favour of Larry and Suzanne, conditioned in a similar way as the previous one. 23.09.20 The appellant left Suzanne’s home and went to live on the Sunshine Coast. 20.01.21 The appellant executed a new will which – • removed Suzanne as executor and as a beneficiary -- 13 of 51 -- 14 Date Event • left pecuniary legacies to his grandchildren in nominated amounts (rather than as a percentage of his residual estate); • left the residue of his estate to Larry. 03.02.21 The appellant revoked Suzanne’s appointment as his attorney. April to August 2021 Suzanne commenced proceedings in QCAT seeking the appointment of an administrator over the appellant’s affairs as nominated by the Public Trustee and the appointment of the Public Guardian as the appellant’s guardian. Of its own motion QCAT initiated an application addressing the revocation of the power of attorney. The appellant sought a closure order to exclude Suzanne from the hearing at QCAT 10.06.21 The evidence before QCAT contained a brief report from Dr Fraser, a consultant psychiatrist, to the appellant’s lawyers to this effect: “I understand that you are providing legal assistance to Mr Bampton and that you will be providing assistance with him writing his Will. I have now met with Mr Bampton on two occasions (21/04/2021 and 08/06/2021). I am writing to let you know that I believe that he has Testamentary Capacity. He understands the meaning of a Will, he knows what assets he has, he knows who he wants to leave those assets to, he knows who might make a claim on his Will and he does not have a disease of the mind that deprives him of the ability to think rationally.” 06.07.21 The appellant swore an affidavit for the purposes of the QCAT proceeding which at [23] to [41] described what he and Suzanne said in the August altercation in terms broadly consistent with what he subsequently pleaded. In particular the affidavit maintained the description that the “... if that's what you want, that's what you get” acquiescence was in response to a demand that he split the estate equally between she and Larry, and that she got the shares as well. The appellant deposed to having told Suzanne that he would split the estate in half so that she would get half and Larry would get half and she would get the CBA shares as well. He deposed to his having said that “to be relieved of his predicament and could go to bed”. He then deposed that “within a couple of days” he drew the $300,000 bank cheque and gave it to Suzanne. -- 14 of 51 -- 15 Date Event The affidavit contained no explanation for the change from the intention stated during the argument which had been described. Nor did the affidavit address at all what impact the argument had had on his state of mind or his decision making in relation to the making of the gift. 12.08.21 QCAT dismissed the applications before it. Amongst other things the reasons for dismissal referred to a further report from Dr Fraser which, while acknowledging that the appellant had a “mild degree of cognitive impairment”; opined that he did not suffer from dementia and concluded that the appellant’s cognitive dysfunction was only mild in degree and did not deprive him of the capacity to make or revoke a power of attorney. QCAT placed weight on the contemporary reports of Dr Fraser and found that contemporary medical reports supported the presumption that the appellant had capacity in relevant senses. 27.09.21 Suzanne swore an affidavit for the purposes of responding to a costs application made by the appellant in QCAT. She complained that she had not been served with the appellant’s material before her attendance at the QCAT hearing. Amongst other things, however, she responded to the allegations in her father’s affidavit about the August altercation, stating: “I did not block him from going to his room, but I was distressed because my brother had been paid $550,00.00 by my father and I could not understand why the sum which was to be paid to me was being withheld. I do not remember the gist of this conversation, but it was not the one that appears in paragraph 33 of my father's statement. The conversation that took place to which my father refers, occurred about 4 days before the payment he made to me of $300,000.00. This payment was made to me on 8 August, 2018.” This assertion was inconsistent with the denial of the August altercation which Suzanne subsequently pleaded. 30.09.21 The appellant filed a claim and statement of claim in the District Court against Suzanne as defendant 13.10.21 The appellant purchased an unencumbered two-fifth interest as a tenant in common of a rental property on the Sunshine Coast with Larry, the holder of the three-fifth interest Relevant legal principles [41] Where a gift is made in circumstances which give rise to the statutory presumption, the law is clear. Its application to the present circumstances may be reduced to the following propositions. -- 15 of 51 -- 16 [42] First, where parties actually stand or are presumed to stand in a relation that gives one authority or influence over the other and from the abuse of that power, the weaker party is protected by the law’s recognition of a presumption of undue influence which places the burden of proof on the stronger party. As Dixon J explained in Johnson v Buttress7 (emphasis added): “…, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee.” [43] Second, given the applicability of the statutory presumption to her circumstances, in relation to the appellant’s undue influence case the ultimate fact, of which Suzanne had to persuade the primary judge, was that she took no advantage of the appellant, but that the gift to her was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of which she had. [44] Third, on that issue, the questions whether something had happened between the appellant and Suzanne a few days before the gift, and, if it had, whether it had impacted adversely on the quality of the appellant’s ability to make an independent and well-understood judgment in relation to whether or not to make the gift, were highly relevant considerations. But it is important to recognise that they were not the only relevant considerations. The High Court has approved Lord Stowell's generalisation concerning the administration of equity: “A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'." (citation omitted).8 [45] Fourth, the approach to be taken to a consideration of whether the presumption had been displaced is that which McMurdo JA (with whom Fraser JA and Bradley J agreed) outlined in Birch v Birch9, where his Honour was dealing with a case where an aged mother gave property to her son who held her power of attorney at the time. His Honour observed (bold print emphasis added): “By s 87 of the Powers of Attorney Act 1998, there is a rebuttable presumption of undue influence in a transaction between a principal and an attorney under an enduring power of attorney. It is presumed that the principal entered into the transaction, under the influence of the attorney, in that it is presumed that, to adopt the words of Dixon J in Johnson v Buttress, there is a position “involving an ascendancy or influence over that other, or a dependence or trust on his part.” Consequently, there is a presumed inequality between the parties, from which there is a presumed influence of one party over the other in 7 Johnson v Buttress (1936) 56 CLR 113 at 134. 8 Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1, per Kiefel CJ, Keane and Gleeson JJ at [39]-[40], quoting with approval from the judgment of Dixon CJ, McTiernan and Kitto JJ in Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118‑119. 9 Birch v Birch [2020] QCA 31 at [74] to [77]. -- 16 of 51 -- 17 a transaction between them. But the operation of this rule must have regard to the particular nature of that relationship between the parties, in assessing what is required to rebut the presumption. In Johnson v Buttress, Dixon J said: “This burden is imposed upon one of the parties to certain well- known relations as soon it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree.” (Emphasis added.) In the present case, there is a presumption of an influence. But [the mother] was of full capacity at the time of the transfer, and the degree of [the son’s] influence, which s 87 requires to be presumed, could not have been high. Further, there was nothing about this transaction of which [the son] had a knowledge which was not shared with [the mother]. She was just as able to decide whether it was in her interests to transfer this interest. The presumption had to be rebutted, but the burden of proof in this case was not as heavy as in many others, and care must be taken in the application of statements, in other cases, about different types of relationships of presumed influence. Further, although there was the relationship of principal and attorney, it is necessary to consider that there was another relationship between the parties, namely that of mother and son, in which a gift could be explained by motives of gratitude and affection. In Yerkey v Jones, Dixon J observed, about the types of relationships to which the presumption of undue influence applies: “But in the relations comprised within the category to which the presumption of undue influence applies, there is another element besides the mere existence of an opportunity or obtaining ascendancy or confidence and of abusing it. It will be found that in none of those relations is it natural to expect the one party to 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.” The relationship of mother and son does not displace, as a matter of law, the presumption imposed by s 87. But it can be relevant, and in some cases critical, to a question of whether the presumption is rebutted in a particular case. In the present case, that relationship is of central importance.” -- 17 of 51 -- 18 [46] Finally, there are well-recognised doctrinal differences between undue influence and unconscionable dealing. As Deane J explained in Commercial Bank of Australia Ltd v Amadio10, the former looks to the quality of the consent or assent of the weaker party, but the latter: “… looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.” [47] Accordingly, on the appellant’s unconscionable dealing case, the critical issue, on which the burden lay on the appellant, was whether it is not consistent with equity or good conscience that Suzanne should retain the benefit of the gift. As to the way in which that issue should be assessed, in Kavanagh v Londy [2024] QCA 140 Mitchell AJA and I referred with approval to these recent summaries of applicable principle (emphasis added and footnotes in original):11 “In Gunn v Meiners,12 the Court of Appeal of Western Australia recently summarised the law in relation to the application of equitable principles relating to unconscionable conduct in these terms:13 “Broadly speaking, the doctrine of unconscionable dealings involves: (1) a relationship that places one party at a 'special disadvantage or disability' vis-à-vis another party; (2) knowledge of that special disadvantage or disability by the stronger party; and (3) unconscientious exploitation by the stronger party of the weaker party's disadvantage or disability. These considerations should not be understood as if they are to be addressed separately as if they are separate elements of a cause of action in tort. The application of equitable principles relating to unconscionable conduct calls for 'a precise examination of the particular facts' and 'every connected circumstance' (including the 'mental capacities, processes and idiosyncrasies' of the vulnerable party) as well as 'a scrutiny of the exact relations established between the parties'.” The second and third sentences of the quote are of particular significance. It is helpful to record the complete passage from the judgment of Kiefel CJ, Keane and Gleeson JJ in Stubbings v Jams 2 Pty Ltd14 from which they derive: “In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a "special disadvantage" vis‑à‑vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage. But these considerations should not be understood as if they were to be addressed separately as if they 10 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474. 11 Kavanagh v Londy [2024] QCA 140 at [15] to [16] per Bond JA and Mitchell AJA. 12 Gunn v Meiners [2022] WASCA 95. 13 Gunn v Meiners [2022] WASCA 95 at [147] per Mitchell, Beech and Vaughan JJA. 14 Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1 at [39] – [40]. -- 18 of 51 -- 19 were separate elements of a cause of action in tort. As Dixon CJ, McTiernan and Kitto JJ said in Jenyns v Public Curator (Qld), in a passage approved by this Court in Kakavas and Thorne v Kennedy, the application of the equitable principles relating to unconscionable conduct: "calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [vulnerable party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'." (citation omitted) Special disadvantage In this field of discourse, "special disadvantage" means something that "seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests". While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.”” The findings and reasons of the primary judge on the critical issues [48] The primary judge identified the critical issues arising from the pleadings in the following way:15 “[The appellant’s] case rests upon an allegation that there was an argument between [the appellant] and his daughter in early August 2018 and that as a consequence of that and the behaviour of his daughter during it, Mr Bampton felt overwhelmed and considered that he had no alternative but to give in to, what he described as, his daughter’s demands for $300,000. [Suzanne’s] case is that her father gifted to her the sum of $300,000 at his own instigation and in the exercise of his own free will.” 15 The primary judge’s reasons, at [26] to [27]. -- 19 of 51 -- 20 [49] In attempting to resolve the issues so characterised the primary judge first identified and recorded the evidence which she found most helpful. Although other people also gave evidence, the primary judge observed (correctly in my view) that the principal relevant evidence was contained in the evidence of the appellant, of Suzanne and of her husband. As already mentioned, the appellant’s evidence was given by way of a s 92 statement which contained his evidence in chief. Further oral testimony was then elicited from the appellant in cross-examination and re-examination. Suzanne and her husband each gave evidence orally before the primary judge. [50] After recording relevant aspects of the evidence of those witnesses, the primary judge made the following findings. [51] Her Honour accepted Suzanne’s evidence about the 15 May 2018 altercation and the receipt of the letter from the appellant in May 2018 apologizing for his behaviour. Her Honour found it unlikely that the issue of unfairness as between Larry and Suzanne was not discussed again and, accordingly, accepted Suzanne’s evidence to QCAT in favour of Suzanne’s evidence at trial (which had been consistent with her pleaded denial of the August altercation) and determined that there was an argument in the days immediately prior to the payment to Suzanne. [52] Her Honour found that the heart of the issue was the quality of the conversation and the likelihood for it to have had an impact on her father. In my view her Honour was plainly right in so doing. [53] Her Honour concluded that there was every reason to treat the evidence of Suzanne with caution. By the same token, she noted that the appellant’s counsel had submitted that the appellant had given “his evidence under cross-examination in a clear, concise, responsive and direct manner and as best as he could, given his age and medical issues, including his diagnosed cognitive decline,” but she concluded that it was impossible to accept that submission even in the qualified way it was put. [54] The primary judge was not convinced that the August altercation took place for the time or in the manner stated by the appellant. In this regard: (a) Her Honour found that the appellant’s version was unlikely having regard to the other evidence of his behaviour. The other evidence which her Honour referenced included the medical evidence of his long-standing anxiety and depression; evidence from third parties concerning his aggression towards others, and his letter of apology concerning the May 2018 argument. Further, she found that there was an element of reconstruction in the appellant’s evidence. (b) Her Honour thought that evidence which had addressed the way in which the appellant managed his own finances and made decisions in relation to finances evidenced a person with a clear mind and a definite sense of purpose. She thought the purchase of the Mountain Creek property and the circumstances in which the appellant implemented his intention to make the $300,000 gift supported that conclusion. (c) Having regard to her assessment of the two principal witnesses, her Honour found that the appellant gave his evidence in a strident, forthright way and was clearly not a person who liked to be challenged. She found Suzanne to be timid -- 20 of 51 -- 21 and lacking in confidence and observed that her recitations of her interactions with her father were supported by the objective indicia including Ms Warren’s reports; the appellant’s May 2018 letter of apology; and some notes which the appellant wrote. She concluded that there was “clearly a power imbalance with the appellant being the stronger of the two”. [55] In relation to the actual undue influence claim: (a) Her Honour found established as objective factual circumstances that Suzanne was a formally trained and enrolled nurse and at the relevant time the appellant was living with her in the same house, the transaction was for no consideration and was substantial, he was 91 years old and did not have legal advice in relation to the transaction. (b) Her Honour found that there was an argument in August 2018 on the subject of Suzanne feeling unfairly done by because unlike her brother she was denied a share in her father’s lottery winnings; that the argument involved mutual shouting and swearing; but that it did not follow that the circumstances of that argument occurred in the way the appellant described. (c) Her Honour was unable to accept that the gift was made as a result of the appellant being bullied into it. She regarded him as having a strong and forceful personality and whilst Suzanne was not diminutive neither was the appellant.16 (d) Her Honour also found other unchallenged evidence supported her conclusion. Again, she found consistency with her assessment of the appellant’s behaviour in (1) Ms Warren’s observations concerning his behaviour in the aged care facility, (2) notes which the appellant had made on that subject, (3) the evidence that the appellant was in command of his finances including evidence form Larry that his father was a fiercely independent person with capacity to make his own financial decisions. As previously summarised, her Honour accepted that description and found that it was “difficult to imagine anyone being able to tell [the appellant] what to do, or anyone so dominating his mind that he was prevented from exercising his free will”. (e) Based on that analysis her Honour expressed the view that she was unable to find that the transaction occurred by reason of actual undue influence and was unable to find that the relationship between the appellant and his daughter was such as to give rise to a presumption of undue influence in fact. [56] In relation to whether Suzanne had rebutted the statutory presumption of undue influence, the primary judge relied on the following in demonstrating that the onus of rebutting the presumption was discharged, and that the gift was the independent and well understood act of a person in a position to exercise a free judgment based on information as full as that of the donee: (a) Her Honour considered that the substance of the case rested upon the allegation that the August altercation occurred as set out by the appellant. In this respect, 16 In making this conclusion the primary judge referenced the presence in Court before her of both witnesses, but also referenced a photograph which she had been shown as supporting the conclusion. The photograph had not been tendered and was not in evidence. In my view that error was not shown to have undermined the finding that she based on her observations in Court. -- 21 of 51 -- 22 her Honour did not accept that it occurred in the manner described by the appellant. Therefore, her Honour did not accept that the cheque was presented as a result of the appellant being bullied into it. (b) Her Honour found that Mr Bampton an independent and dominating personality and was in command of his finances due to various purchases and had financial capacity. (c) Her Honour found there was consistent evidence from Suzanne, and letters written after the May argument indicating that the appellant would give Suzanne $300,000. This was also consistent with other evidence of the appellant’s intention to purchase an apartment for Suzanne and to change his will to reflect the payment as a gift. (d) While her Honour accepted that no independent advice was given to the appellant prior to the payment, this was not a determinative factor in rebutting the presumption, as the medical reports reflect that he had capacity to make decisions freely and voluntarily, and in particular could understand consequences of not paying bills and undertaking legal and financial transactions. (e) Her Honour made observations in respect of the timeline of events in concluding that none of which were consistent with the appellant having felt pressured into giving Suzanne the $300,000, in particular: (i) The appellant staying with Suzanne for 2 years after making the transaction and writing affectionate birthday cards. (ii) That while it was not necessarily harmonious when the appellant left, this was dissimilar to incidents occurring during his time at the retirement village. (iii) There were various changes to wills, each being prepared by solicitors, and this included Suzanne remaining as joint executor and at times joint power of attorney. (iv) The action against Suzanne was not commenced until a year after the appellant left Suzanne’s house, and shortly after she had commenced QCAT proceedings with respect to the power of attorney and the appellant’s capacity. [57] In relation to the question whether it was unconscionable for Suzanne to retain the benefit of the gift, the primary judge rejected the suggestion that the appellant was placed at a special disadvantage in relation to Suzanne. Her Honour rejected the suggestion that the appellant was emotionally dependent upon Suzanne and went on to consider the question in these terms:17 “It was submitted that it was unconscionable for [Suzanne] to retain the moneys given [the appellant]'s advanced age and medical condition, his dependence upon [Suzanne] as a boarder living at the house of [Suzanne and her husband, that he received no independent 17 Reasons of the primary judge at [188] to [192]. -- 22 of 51 -- 23 advice, that [Suzanne] was his paid carer and that [the appellant] believed that the payment of funds was the only way to ensure that he had a roof over his head. Although [the appellant] was of advanced age and had medical conditions, the medical evidence was to the effect that he had full capacity and well understood and was able to manage his financial affairs. Although he lived in the same home as [Suzanne], I am not convinced that this placed him at a special disadvantage in relation to [Suzanne] or made him dependent upon [Suzanne], as events subsequently proved. I simply do not accept his assertion that he made the payment because he thought that he needed to do so to maintain a roof over his head. He was not that sort of person. Finally, as previously explained, I do not accept that there is any significance in the absence of independent advice. [Suzanne] was in receipt of a carer's pension, not his paid carer because of some serious incapacity and, in any event, I do not accept that this placed him at a special disadvantage: he was physically and mentally in charge of all of his faculties. In addition, I am unable to accept that [Suzanne] took unconscientious advantage of [the appellant]. I accept the submission made by counsel for [Suzanne] that [Suzanne] received the cheque knowing that [the appellant] had won the lotto and had given an equivalent gift to her brother out of those winnings. I do not accept that she did or was capable of bullying [the appellant] into doing something he did not want to do. I do not accept that the retention of the money was in the circumstances unconscionable. Finally, I am prepared to accept that the gift was fair, just and reasonable in the circumstances. The gift was made out of winnings from the lotto. [The appellant] conceded he did not need the winnings. The gift did not detract from his own financial needs. It involved more or less equal treatment of his children.” There is no proper basis to overturn the findings of the trial judge [58] I will shortly turn to address the appellant’s grounds of appeal. As will appear, each of them seeks to overturn the fact-finding made by the primary judge, where the findings were obviously affected by impressions about the credibility and reliability of witnesses formed by the primary judge as a result of seeing and hearing them give their evidence. [59] In Wang v Hur, this Court recently summarised the approach which should be taken to such appeals in these terms (footnotes omitted):18 “The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge are settled. The leading High Court authorities are 18 Wang v Hur [2024] QCA 126 at [23] to [24]. -- 23 of 51 -- 24 Warren v Coombes; Allesch v Maunz; Fox v Percy; Robinson Helicopter Company Incorporated v McDermott; and Lee v Lee. The relevant passages from those authorities were recently examined at length in this Court in Sutton v Hunter. To summarise further, but retaining the language used by the High Court authorities referred to in the previous paragraph: (a) On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error. (b) On such an appeal, the appellate court 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 it should be so satisfied. (c) If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. (d) When determining whether a judge has erred in fact, 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. (e) However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings 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. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. (f) In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused [his or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”, or which was “contrary to compelling inferences.”” [60] In the present case, the appellant has failed to persuade me that this is an appropriate case to interfere with the relevant findings made by the primary judge. The primary judge’s findings cannot be impeached and must stand. They are neither glaringly improbably nor contrary to compelling inferences. There is not the slightest suggestion that the judge has misused her advantage. [61] It is convenient to address the appellant’s grounds of appeal by responding to the way in which they were put in the appellant’s written submissions on appeal. For the most -- 24 of 51 -- 25 part the submissions eschewed the attempt made in the notice of appeal to frame the grounds of appeal as legal error and recognized the truth of the matter, namely that this was a factual appeal. Grounds l, 3 and 6 [62] The appellant’s fundamental argument was that, having found that there was an altercation between the appellant and Suzanne in August 2018 a few days before the gift was made, the primary judge erred by failing to accept the appellant’s version of what was said and done during the altercation. The appellant contended that the primary judge impermissibly acted in the absence of any evidence contradicting the appellant's version. The appellant contended that the only evidence of the August altercation was his; no counterfactual was advanced by Suzanne; and the appellant’s version was both unchallenged and uncontradicted. [63] The appellant submitted: “The primary Judge's rationalization of the evidence did not address the Appellant's detailed testimony - materially unchallenged as it was - of his motivation for making the Impugned Payment. It was not open to the Court below to palliate the Respondent's failure to put an alternate hypothesis to the events of [the August altercation], by reliance on matters not in evidence or in respect of which the Appellant was not challenged in cross-examination. Once the Court accepted [the August altercation] occurred, there was no rational alternative but to accept the version given in the Appellant's evidence. Based on that evidence, the only conclusions reasonably open were that the conduct of the Respondent constituting [the August altercation]: (a) comprised an exercise of influence over the Appellant; (b) met the requisite standard of influence that was undue; and (c) resulted in, or brought about, the making of the Impugned Transaction. It necessarily follows that the primary Judge erred in concluding (expressly or implicitly) that the Appellant's payment by bank cheque of $300,000 to the Respondent was not the result of undue influence on the part of the Respondent comprised in the events of and surrounding [the August altercation].” [64] The appellant’s argument must be rejected. First, in the circumstances of this trial, the attempt to rely on the rule in Browne v Dunn is misplaced. But, second, and more fundamentally, the appellant’s argument is founded on an understanding of the process of judicial fact-finding which is contrary to authority. Third, there is quite a deal of objective and other evidence which rendered the appellant’s version of events implausible. I will develop each of these points below. [65] The core of the appellant’s pleaded case as presented at trial was that his gift to Suzanne was made solely because of the August altercation and its pleaded impact on him. His case was that, but for her conduct in that altercation, he would not have -- 25 of 51 -- 26 made the gift, his intention at the time being that the monies would have ultimately passed to her under his will. The appellant’s evidence was broadly consistent with his pleading. [66] For her part, and despite the obvious difficulty of her QCAT affidavit, Suzanne had pleaded that there had been no relevant altercation between she and her father at all in the days preceding 8 August 2018. Her oral evidence at trial was broadly consistent with her pleading. But in her oral evidence at trial and in addition to the evidence she gave concerning the August altercation, she also said she had never been physically, emotionally or financially abusive to her father, thereby contradicting the appellant’s evidence as to her behaviour during the August altercation. [67] The question of whether the August altercation happened at all as alleged was obviously in issue in the trial. But so was the question of whether Suzanne had at any time at all behaved in the way and with the consequences to the appellant as the appellant asserted. [68] Moreover, it is also appropriate to observe that, given the state of the pleadings and the plain notice that the appellant had of what was Suzanne’s case, it was always going to be the case that the rule in Browne v Dunn would have a reduced scope in the conduct of the trial. The rule does not apply where the witness is on notice that the witness's version is in contest and the notice may come from the pleadings.19 And it is plain that the appellant, at least by his legal representatives, must have been on notice of the matters referred to above. [69] Further, two other considerations strongly confirm the reduced significance of the rule in the circumstances of this case. First, the appellant’s evidence in chief was given in writing and the primary judge was told that the appellant’s statement had been prepared after counsel had spent considerable time with the appellant out of Court shortly before he was to give evidence (and, it must be inferred, with full appreciation by counsel of the issues in the pleadings). It was tendered without objection as the appellant’s statement pursuant to s 92 of the Evidence Act 1977 (Qld). Second, before any cross-examination had commenced the appellant’s senior counsel stated to the Court that he would not take any Browne v Dunn point if Suzanne’s counsel chose to put his case in general terms rather than by going to every incident or every occasion. [70] The result was that the primary judge was obliged to treat as a live issue for determination the question whether even if, contrary to Suzanne’s pleaded case, some sort of altercation occurred in August a few days before the $300,000 gift, the altercation happened in the intimidatory way which the appellant suggested and with the impact on his decision making which he described. And the primary judge was not significantly constrained by the operation of the rule in Browne v Dunn in relation to her fact finding on that question. [71] Contrary to the argument of the appellant before this Court, it would not follow from any rejection by the primary judge of Suzanne’s case at trial that the August altercation had not happened at all, that the primary judge was bound to accept the appellant’s evidence as to the detail of what happened during the August altercation or his evidence as to its effect on him. That is not how judicial fact-finding works. 19 Cross on Evidence, at [17445]. -- 26 of 51 -- 27 And it would not be how judicial fact-finding worked even if the appellant’s case had not been contradicted by Suzanne’s general evidence that she had never been physically, emotionally or financially abusive to her father. [72] In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore20, the High Court recently restated what has long been the law in this way (footnotes omitted): “A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of "actual persuasion" which is required before a fact may be found. "To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence ... It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct." The evidence must "give rise to a reasonable and definite inference" to enable a factual finding to be made; mere conjecture based on "conflicting inferences of equal degrees of probability" is insufficient. As Dixon CJ said in Jones v Dunkel, the law: "does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."” [73] Finally, it is appropriate to observe that there was strong objective evidence which suggested the implausibility of the appellant’s version of events. First, there was the evidence of his capacity to make independent financial decisions on his own behalf and of his practice of doing so. Second, there was the evidence of the nature of his personality as adjudged by his son, Larry, and accepted by the primary judge. Third, despite the appellant’s personal financial means and the availability of a room in the house which the appellant had just bought Larry, he continued to stay with Suzanne and her husband in the months after the August altercation. It was simply not plausible that a man like the appellant would continue to stay with them if in fact he had been treated in the manner he said he had, especially when he had somewhere else to go and could afford to go there. Fourth, there was the evidence of his birthday cards to Suzanne written only a few months after the alleged events. Those cards strongly suggested that a few months after the August altercation he had come to regret some part of his prior conduct towards Suzanne and to regard it as unfounded in reality. The parallels with what had happened after the May incident are obvious. The terms of the birthday cards were inconsistent with the notion that Suzanne and her husband had actually treated him in the way which he later said they had. Fifth, the May apology letter had made it clear that the appellant did intend to make an inter 20 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [60] per Kiefel CJ, Gageler and Jagot JJ. -- 27 of 51 -- 28 vivos gift of $300,000 to Suzanne and her husband. The terms of that letter were inconsistent with his subsequent pleaded assertion that “At all material times, the [appellant’s] intention was that the monies comprised in the transaction would ultimately pass under the [appellant’s] Will.” [74] It was open to the primary judge to decide that there must have been some sort of altercation which occurred in August prior to the gift being made. Having reviewed the evidence, that seems to me to have been the correct decision. It was consistent with the appellant’s evidence and with Suzanne’s QCAT affidavit. But it was also plainly open to her Honour to determine that she was not persuaded by the appellant of his version of what happened during the August altercation and to regard his version of events as exaggerated and the subject of reconstruction by him. In forming that view her Honour made no appealable error. Once the primary judge had determined that the August altercation had not occurred in the way or with the consequences which the appellant had asserted, and given the evidence as to the appellant’s decision making capacity and character (as to which see [24] above), the primary judge’s conclusion on the displacement of the presumption and the rejection of the actual undue influence case and the unconscionability case were unremarkable and consistent with the law I have previously summarised. [75] These grounds of appeal must fail. Grounds 2 and 6 [76] The appellant first contended that: “In reaching the ultimate findings of fact, the primary Judge took into account considerations which, if relevant at all, were of the most marginal significance. These include: (a) the Appellant's height relative to the Respondent's height; (b) that the Respondent felt unfairly done by in the way she was deprived of any immediate share in the winnings; (c) that the Appellant had a strong and forceful personality; (d) that the Appellant had financial capacity to enter into the Impugned Transaction; (e) that the Appellant could be described as a comfortable, self- funded retiree; and (f) that the Appellant stated that he "did not really need the Tattersalls winnings".” [77] The submission must be rejected. Having regard to the extravagant nature of the appellant’s allegations concerning the August altercation and the breadth of considerations which equity recognises as relevant in cases of this nature, these matters were all relevant and their relevance could not be said to be marginal. [78] The appellant then submitted that: -- 28 of 51 -- 29 “In contrast, the primary Judge attached no weight to matters of far greater significance, including: (a) the Appellant's advanced age; (b) the Appellant's medical condition; (c) the Respondent's knowledge of the Appellant's medical diagnosis of PTSD, depression and anxiety as evidenced in the Reports produced to QCAT; (d) the fact that the Appellant was not afforded any opportunity to seek or obtain independent financial or legal advice; (e) the fact that the Respondent was the Appellant's paid carer; (f) the fact that the Respondent was a donee under an extant enduring power of attorney for both financial and health matters; (g) the fact that the size of the supposed gift was substantial and immoderate; (h) the fact that the supposed "gift" was made for no, or no valuable consideration; (i) the pleaded admission that the Impugned Transaction was "manifestly disadvantageous to Mr Bampton in that he received no or no valuable consideration for the transfer of the funds comprised in the CBA bank cheque".” [79] First, as the respondent submitted, the primary judge did take into account the evidence which touched upon all the listed matters. Second, the weight which her Honour was to give to the evidence touching on those matters was a matter for her, unless that weighting could be shown to give rise to a conclusion which was wrong in the sense which would invite appellate intervention. Third, for the reasons advanced in relation to the previous heading, the findings the primary judge made were open to her and cannot be demonstrated to be wrong in a way which would invite appellate intervention. [80] Finally, and in any event, I reject the notion that a proper consideration of the evidence touching upon those matters necessarily does not support the conclusions reached by the primary judge. I observe: (a) A proper consideration of the first four matters must occur in the context of a proper consideration of the way in which the appellant’s age, capacity, and cognition affected his decision making. Such a consideration tends to support a conclusion that the appellant was not the sort of person whose decision making could have been affected by his daughter in the way which he alleged. (b) The fifth matter adds nothing to the sixth matter. It gave rise to the issue for determination but did not significantly affect the analysis. (c) The gift was substantial, but in context (and in this regard the observations made by McMurdo JA in Birch v Birch are particularly relevant), it was not even arguably immoderate. Suzanne was the appellant’s daughter. That the appellant would want his daughter to share in the largesse of a lotto win was -- 29 of 51 -- 30 only natural. In the May apology letter, the appellant had already apologised for the unfairness of his earlier proposed testamentary disposition and confirmed his intention to make an inter vivos disposition to Suzanne of the order of that which he subsequently made. The fact that the gift was for no consideration merely meant it was a gift. And the admission added nothing to that. [81] These grounds of appeal must fail. Ground 4 [82] The appellant suggested that the primary judge misunderstood the appellant’s case at trial by proceeding on the basis that the only aspect of special disadvantage upon which the appellant relied to found its case that it would be unconscionable for Suzanne to retain the benefit of the gift was that of “emotional dependence.” In this regard the appellant pointed to the primary judge’s reasons at [186] which made that point and [187] which rejected the suggestion of “emotional dependence”. [83] The appellant’s written submissions at trial had pointed to other factors than emotional dependence in support of his submission that it would be unconscionable for the gift to be retained. In particular he had submitted it would be unconscionable “given [the appellant’s] advanced age and medical condition, his position at the time vis-a-vis [Suzanne] given his dependence as a boarder living under the roof of [Suzanne] and Mr Vourlides, the fact that he received no independent advice concerning the Impugned Transaction, the fact that [Suzanne] was his paid carer and the fact that [the appellant] (rightly or wrongly) believed the payment of funds was the only way to ensure he maintained a roof over [his] head.” [84] The appellant submitted that in fact: “… none of the indicia going to successfully establish the exercise of free and independent will were present. In particular: (a) the making of the gift in August is entirely inconsistent with the evidence of the Appellant, accepted by the Respondent in cross- examination, that in May of the same year the Appellant's position was that he would not advance any money whilst Mr Vourlides was alive; (b) there is no evidence that the Appellant was provided a reasonable opportunity, or indeed any opportunity, to obtain independent legal or financial advice; (c) absent the Major Altercation, the making of the Impugned Transaction is entirely inconsistent with the evidence of the Appellant's persistent intention not to advance any funds to the Respondent from which her husband might benefit; and (d) the proximity in time between the Major Altercation and the making of the Impugned Transaction militates against a finding that the Appellant handed over the bank cheque in the exercise of his own free will.” [85] In my view the primary judge did not make the suggested errors. -- 30 of 51 -- 31 [86] First, while is true that, literally, the impugned sentence in the primary judge’s reasons at [186] did not adequately summarise the breadth of the appellant’s submissions, the balance of the relevant part of her reasons expressly addressed the other considerations on which the appellant relied: see the quote from her Honour’s reasons at [57] above. There was no misunderstanding of the gravamen of the appellant’s submissions at trial. [87] Second, the submission recorded at [84] cannot be accepted. The evidence concerning the May transaction did not justify the conclusion that the appellant had decided not to advance any money while Suzanne’s husband was alive or ever to make a gift from which Suzanne’s husband might benefit. In fact, the appellant’s May apology letter was objective evidence which explicitly contradicted those propositions. The intention there revealed was to make a gift of $300,000 when Suzanne and her husband bought a new house. The only real change between May and August was that the inter vivos gift in the foreshadowed amount was made before they had yet decided to buy. The way in which the primary judge dealt with the question of the absence of advice was open to her. And there is no logical connection between the time which elapsed between the August altercation (as found by the primary judge) and the making of the gift, and the conclusion that the gift was not made in the exercise of independent and free will. [88] This ground of appeal must fail. Ground 5 [89] The appellant contended that: “The learned trial judge erred in concluding (at paragraph [192] of the reasons for judgment) that the supposed gift was fair, just and reasonable in the circumstances.” [90] This ground of appeal fails for reasons already advanced. The conclusion which the primary judge reached was open on the evidence and no appealable error has been demonstrated. Ground 7 [91] The appellant contended that: “Further or alternatively, the learned primary Judge erred in law in concluding (expressly or implicitly) that the Respondent's passive acceptance or continuing retention of the payment comprising the Impugned Transaction was not unconscionable in all of the circumstances.” [92] As phrased, the ground is singularly uninformative. As argued, the appellant contended that the primary judge’s consideration of the unconscionability case was tainted by the errors underlying ground 1 of the appeal. That argument must be rejected for the reasons already advanced in relation to that ground. [93] The appellant also sought to dress the argument up as legal error, without being able to pinpoint any actual error of law made by the primary judge. In my view, a fair consideration of the primary judge’s reasons do not suggest that her Honour found -- 31 of 51 -- 32 the relevant facts other than in a way consistent with the law as summarised at [47] above. In truth, the criticism advanced in this ground was yet another challenge to the outcome which depended upon the demonstration of error in the primary judge’s fact-finding. No error was demonstrated. Conclusion [94] All grounds of appeal having failed, the appeal should be dismissed, with costs. [95] CROW J: The appellant, Mr Bampton, is currently 92 years of age having been born on 9 June 1931. The respondent, Mrs Vourlides, is the only daughter of Mr Bampton. Mrs Vourlides is currently 69 years of age, having been born 12 November 1954. [96] Mr Bampton moved into a retirement village in 2014. Mr Bampton’s wife passed away on 21 December 2015 and Mr Bampton expressed a strong desire to leave the retirement village following her death. On 25 January 2017, Mr Bampton left the retirement village and moved permanently to reside at the home of his daughter and her husband at Bundall. Mr Bampton paid rent to his daughter for residing in her house, and Mrs Vourlides also received a Centrelink carer’s allowance in respect of Mr Bampton. Mr Bampton was heavily reliant upon Mrs Vourlides. Mrs Vourlides considered that Mr Bampton had memory problems, needed help paying his bills, needed to be constantly reminded of his medical appointments21, had a diagnosis of dementia22, such that Mrs Vourlides was convinced “he could not look after himself” and had “lost the capacity to live on his own”. Mrs Vourlides said that Mr Bampton was “suffering from paranoia” and was “experiencing delusional thinking”.23 [97] On 3 May 2017, Mr Bampton appointed Mrs Vourlides as attorney under a joint power of attorney with her brother, Larry. The appointment was in respect to financial and personal/health matters. [98] On 14 March 2018 Mr Bampton received an amount of $986,212.30 of Golden Casket winnings. On 26 March 2018, Mr Bampton signed a contract and paid a deposit for the purchase of a four bedroom house at Mountain Creek to be owned by himself and his son, Larry Bampton. Mr Bampton paid the entirety of the purchase monies and the property was transferred to Mr Bampton and his son Larry as joint tenants. Mr Bampton understood the effect of the joint tenancy to be that when he passed, his son Larry would inherit the entirety of that property. [99] The transfer of the Mountain Creek property was effected on 11 April 2018. On 12 April 2018, Mr Bampton executed a new will in which he made provisions of forty per cent to Mrs Vourlides, ten per cent to his son Larry and ten per cent each to his four grandchildren and only great grandson. Importantly, in respect to the disposition of forty per cent to Mrs Vourlides, the will provided that the forty per cent was to be paid to Mrs Vourlides directly only if Mrs Vourlides’ husband, Jim, had predeceased Mrs Vourlides, before adding “To avoid any doubt, I do not wish any part of the bequest to Suzanne to be used for the benefit of or to be given to Jim.” [100] The primary judge accepted Mrs Vourlides’ evidence that on 5 May 2018 Mr Bampton went to a coffee shop with Mrs Vourlides to discuss the contents of his 21 AB294. 22 AB298. 23 AB1033. -- 32 of 51 -- 33 new will and to explain to her that he had purchased the house for Larry and changed his will to provide that Mrs Vourlides was to receive forty per cent of his estate and that “You will have to wait until Jim dies until you can have [your share] of the will.” [101] The explanation as to why Mr Bampton had made his will in the form that he had, according to Mrs Vourlides, was that Mr Bampton said “Jim did something to me. Don’t you remember? When your mother died, he printed out all those things. What the executor of the will does. He’s after my money.” [102] The primary judge also accepted Mrs Vourlides’ evidence that there was a further heated discussion on 15 May 2018 between Mr Bampton, Mrs Vourlides and Jim Vourlides. Mr Bampton explained why he had caused his will to be drafted with provision that Mrs Vourlides’ forty per cent was not to be received by her until Jim Vourlides had passed. According to Mrs Vourlides, the conversation was upsetting to Mr Bampton and also to Mrs Vourlides, with Mrs Vourlides admitting that she repeated a few times in the conversation that the provision was not fair and asked why she was being punished. Mrs Vourlides said that she was very hurt and distressed, started to cry, left the house, got in her car and drove away. Mrs Vourlides said that Mr Bampton was angry and upset. [103] The primary judge referred to Mr Bampton’s letter of apology in respect of the incident of 15 May 2018. Apart from expressing his regret, Mr Bampton again explained the content of his will, and that his intention was not to favour his son, Larry, nor punish Mrs Vourlides, but to protect her. Mr Bampton expressed his intention to pay Mrs Vourlides $300,000 when she wished to buy a house. [104] The parties agree on 8 August 2018 Mr Bampton attended upon his bank and drew a bank cheque for $300,000 naming Mrs Vourlides as the payee. The parties agree soon thereafter, Mr Bampton gave that bank cheque to Mrs Vourlides who deposited it into her joint bank account she conducted with her husband. Mrs Vourlides asserts that the bank cheque of $300,000 was a gift made by Mr Bampton to her out of his natural love and affection for her and that the bank cheque was made by Mr Bampton at his own instigation and in the free exercise of his own independent will. [105] Mrs Vourlides’ case was that there was no incident between 15 May 2018 and the delivery of the cheque on or about 8 August 2018. Mr Bampton’s case at trial was that in early August 2018, a few days before he obtained the bank cheque, a major altercation occurred between himself, his daughter Mrs Vourlides, and his son in law, Mr Jim Vourlides. According to Mr Bampton, he had taken Mr and Mrs Vourlides out to dinner at a hotel at the Gold Coast and during the course of the dinner, Mrs Vourlides had demanded Mr Bampton explain to her the terms of his latest will. [106] Mr Bampton said that he became upset because he thought it was not appropriate to discuss personal matters at the hotel and asked Mrs Vourlides to not discuss it at the hotel, but rather they would discuss it at home. Mr Bampton’s version is that Mrs Vourlides persisted in questioning Mr Bampton about his will, stating words to the effect “It’s not fair that Larry obtains the benefit of $600,000 from your estate.” Mr Bampton, despite his advanced years and difficulties with mobilities, alleged that he was so embarrassed by the incident occurring in a public place that he stood up and commenced walking home and that he was halfway home when Mr and Mrs Vourlides convinced him to get into the car to return to the Vourlides’ residence in Bundall. -- 33 of 51 -- 34 [107] Mr Bampton says when they returned to the Vourlides’ residence in Bundall, there was a major argument in which both he and Mrs Vourlides were shouting and swearing at each other and in which Mrs Vourlides prevented Mr Bampton from entering his bedroom and repeated her demands to be paid $300,000. Mrs Vourlides specifically denied the August 2018 altercation occurred but did assert that some time in 2019, well after the money had been paid, there had been an argument about Mr Bampton’s unequal financial treatment of Mrs Vourlides and her brother. [108] Mr Bampton’s unchallenged evidence was that he was upset by the manner in which he was made to pay Mrs Vourlides the $300,000, that he “could not stop thinking about it” and so he saw a solicitor and changed his will on 21 August 2019. Mr Bampton also changed his will on 12 March 2020 and 20 January 2021. Mr Bampton revoked his power of attorney in Mrs Vourlides favour on 29 April 2021. [109] By claim and statement of claim filed 30 September 2021, Mr Bampton sued Mrs Vourlides for return of the $300,000 alleging the $300,000 was not a gift, rather he was induced to transfer Mrs Vourlides the $300,000 as a result of Mrs Vourlides’ unconscionable conduct or undue influence. Unconscionable Conduct [110] In Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1, Kiefel CJ, Keane and Gleeson JJ said at [39]-[40]: “[39] In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a “special disadvantage” vis-à-vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party’s disadvantage. But these considerations should not be understood as if they were to be addressed separately as if they were separate elements of a cause of action in tort. As Dixon CJ, McTiernan and Kitto JJ said in Jenyns v Public Curator (Qld), in a passage approved by this Court in Kakavas and Thorne v Kennedy, the application of the equitable principles relating to unconscionable conduct: “calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [vulnerable party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell’s generalisation concerning the administration of equity: ‘A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its -- 34 of 51 -- 35 determination upon the real justice of the case’.” (citation omitted) Special disadvantage [40] In this field of discourse, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.” [footnotes omitted] [111] In Louth v Diprose (1992) 175 CLR 621 Brennan J (as his Honour then was) said at 632: “… Once it is proved that substantial property has been given by a donor to a donee after the donee has exploited the donor’s known position of special disadvantage, an inference may be drawn that the gift is the product of the exploitation. Such an inference must arise, however, from the facts of the case; it is not a presumption which arises by operation of law. The inference may be drawn unless the donee can rely on countervailing evidence to show that the donee’s exploitative conduct was not a cause of the gift. At the end of the day, however, it is for the party impeaching the gift to show that it is the product of the donee’s exploitative conduct. This is the final and necessary link in the chain of proof of unconscionable conduct leading to a decree setting aside the gift (See White and Tudor, op cit, p 240).” [112] In Louth (supra) Deane J said at page 637: “It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or “unconscionable” that that other party procure, accept or retain the benefit of, the disadvantaged party’s assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: “the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain” or retain the benefit of it (See O'Rorke v. Bolingbroke (1877), 2 App. Cas. 814, at p. 823, per Lord Hatherley; Fry v. Lane, Re Fry; J.Vhittet v. Bush (1888), 40 Ch. D. 312, at p. 322; Blomley v. Ryan (1956), -- 35 of 51 -- 36 99 C.L.R 362, at pp. 428-429; Commercial Bank of Australia Ltd. v. Amadio (1983), 151 C.L.R 447, at p. 474.). The adverse circumstances which may constitute a special disability for the purposes of the principle relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible of being comprehensively catalogued (See Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR , at p 474). In Blomley v Ryan ( (1956) 99 CLR, at p 405), Fullagar J listed some examples of such special disability: “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. As Fullagar J remarked ((1956) 99 C.LR, at p. 405), the common characteristic of such adverse circumstances “seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other”. [113] The casting of the onus of proof upon the stronger party or presumptions, as they are sometimes referred to, are correctly seen as aides to an evidentiary determination.24 As explained by Brennan J (as his Honour then was) in Louth v Diprose at 626-627, while both undue influence and unconscionable conduct are equitable doctrines which are closely related, they are and remain distinct. The distinction is best understood from the reasons of Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 per Mason J where his Honour said, distinguishing unconscionable conduct from undue influence: “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.” [114] In Amadio at 474, Deane J identified the difference in the nature of the two jurisdictions: “Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party … Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.” [115] Louth v Diprose (supra) is also of assistance insofar as Mason CJ at 626 expressly agreed with the reasons of Deane J at 663 to 664 concerning the proper approach of the Court of Appeal in reviewing factual findings from a primary judge in this “class of case”. Deane J said at 663: “As Rich J observed in Wilton v Farnworth, in a judgment with which Dixon and McTiernan JJ agreed, a trial judge in an undue influence case in which the parties directly involved give evidence ordinarily enjoys an immeasurable advantage in estimating the characters and capacities of those involved in the impugned transaction. That was 24 Nitopi v Nitopi [2022] NSWCA 162 per Ward P at [146] and [153]. -- 36 of 51 -- 37 undoubtedly the position in the present case where the ultimate question for the learned trial judge (King CJ) was whether a gift by the respondent to the appellant was open to challenge on the ground of either unconscionable conduct or undue influence. His Honour heard evidence from both donor and donee and decided the case on findings of fact made and drawn in the context of his assessment of their characters, capacities and reliability. He found that the appellant had been guilty of unconscionable conduct which called for the intervention of a court of equity and the restitution of the gift. The appeal to this Court is from a majority decision of the Full Court of the Supreme Court of South Australia (Jacobs ACJ and Legoe J, Matheson J dissenting) which dismissed an appeal from the judgment at first instance. Jacobs ACJ and Legoe J upheld the findings of fact made by the trial judge whereas Matheson J disagreed with some of those findings. Careful reading of their judgments leaves me in no doubt that each of Jacobs ACJ and Legoe J carefully considered the evidence for himself and concluded, to quote Legoe J with whose judgment Jacobs ACJ expressed “substantial agreement”, “that the evidence as a whole, the findings as to the reliability of the witnesses, as well as many undisputed facts clearly supported the conclusions” about factual matters which the trial judge had reached. In these circumstances, the case is one in which there have been concurrent findings of fact by the primary court and the intermediate appellate court. It is well settled that a second appellate court, such as this Court is in the present case, should not, in the absence of special reasons such as plain injustice or clear error, disturb such concurrent findings … In that regard, it is immaterial that the concurrent findings of fact by the court of first instance and the first appellate court encompass both findings of primary fact and conclusions and inferences of fact drawn from primary facts or that some conclusions or inferences of fact are based on different reasonings as between the two courts. Nor is it relevant that there has been a dissentient in the first appellate court.” [footnotes omitted] [116] Deane J’s reasons emphasise the necessity of this court as first court of appeal to carefully consider the whole of the evidence by reviewing both findings of primary fact and conclusions or inferences of fact drawn from the primary facts but importantly being conscious of the “immeasurable advantage” in estimating the characters and capacities of those involved in the impugned transaction. [117] In Thorne v Kennedy (2017) 263 CLR 85, the plurality said at [41]-[43] as follows: “[41] 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 -- 37 of 51 -- 38 judge’s conclusions in light of the advantages enjoyed by that judge. [42] 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”. [43] 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. The same evaluative exercise was described by this Court in Kakavas v Crown Melbourne Ltd in relation to unconscionable conduct, quoting from Dixon CJ, McTiernan and Kitto JJ in a passage from Jenyns v Public Curator (Qld) which emphasised how the application of these equitable principles: “calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell’s generalisation concerning the administration of equity: ‘A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case’.” [footnotes omitted] [118] The primary judge dismissed the appellant’s case on his unconscionability claim as her Honour found as a fact that the appellant had not proved that he was placed at a special disadvantage. The primary judge’s finding at [186] is: “[186] There is a threshold consideration in equity and that is whether the disponor [sic] is placed at a special disadvantage in relation to the other. In this case it is not suggested that Mr Bampton was -- 38 of 51 -- 39 at a special disadvantage because of illness, ignorance, inexperience, impaired facilities or financial need. The circumstance that it was suggested affect his ability to conserve his own interests was emotional dependence; relying upon Louth v Diprose and Bridgewater v Leahy.” [footnotes omitted] [119] The appellant submits that the primary judge’s findings at [186] misconstrued the appellant’s case at trial. The appellant did plead that he was at a special disadvantage because of illness, advanced age, “his position at the time vis-à-vis Mrs Vourlides given his dependence as a boarder living under the roof of Mr and Mrs Vourlides … the fact that Mrs Vourlides was his paid carer and the fact that Mr Bampton (rightly or wrongly) believed the payment of funds was the only way to ensure he maintained a roof over her [sic] head.”25 [120] The appellant’s case was pled on the basis that special disability arose from a constellation of features including the appellant’s advanced age, medical conditions that the appellant was under the care of Mrs Vourlides for some of his domestic and household needs (a fact admitted by the respondent) and that the appellant was living in the respondent’s household and the respondent was his carer. Although the primary judge incorrectly characterised the appellant’s factual case in respect of special disadvantage, the primary judge did examine the appellant’s advanced age and medical conditions and living arrangements. After consideration, the primary judge concluded that “I am not convinced that this placed him at a special disadvantage in relation to Mrs Vourlides or made him dependent upon Mrs Vourlides as events subsequently proved.” [121] Given the advantage the primary judge had in assessing the appellant and that the primary judge did actually consider the appellant’s arguments of special disadvantage based upon advanced age, medical conditions and living arrangements, I conclude that the primary judge’s finding that the appellant was not at a special disadvantage was a finding which was open upon the evidence. Undue Influence [122] The classic statement of the equitable doctrine of undue influence is found in the reasons of Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134 where his Honour said: “The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practise such a domination may be found in no antecedent relation, but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the 25 AB 169 paragraph 158 of plaintiff’s outline of submissions on trial. -- 39 of 51 -- 40 other from the abuse of which it is proper that he should be protected. When they stand in such a relation, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. … The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. 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. …” [my underlining] [123] In Thorne v Kennedy (supra) the plurality emphasised the importance of emotional pressure being brought to bear upon a donor by a donee and the importance of that emotional pressure in a temporal sense to the impugned transaction. The plurality said at [30]-[32]: “[30] In Allcard v Skinner, Lindley LJ said that “no Court has ever attempted to define undue influence”. One reason for the difficulty of defining undue influence is that the label “undue influence” has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper. [31] In 1836, in a passage which was copied verbatim by Snell thirty years later, Story said that a person can be subjected to undue influence where the effect of factors such as pressure is that the person “has no free will, but stands in vinculis [in chains]”. He explained that “the constant rule in Equity is, that, where a party is not a free agent, and is not equal to protecting himself, the Court will protect him”. In 1866, this approach was applied in equity by the House of Lords, recognising undue influence in a case of pressure that deprived the plaintiff of “free agency”. In 1868, in probate, Sir James Wilde also described undue influence as arising where a person is not a “free agent”. In Johnson v Buttress, Dixon J described how undue influence could arise from the “deliberate contrivance” of another (which -- 40 of 51 -- 41 naturally includes pressure) giving rise to such influence over the mind of the other that the act of the other is not a “free act”. And, in Bank of New South Wales v Rogers, McTiernan J characterised the absence of undue influence as a “free and well- understood act” and Williams J referred to “the free exercise of the respondent’s will”. [32] The question 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. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person’s free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person’s mind of the will of another.” [my underlining] [footnotes omitted] [124] The facts of Thorne v Kennedy provide a useful demonstration of the concept of emotional pressure being applied. Mr Kennedy was a 67 year old Australian property developer with assets worth between $18 to $24 million. Mr Kennedy was divorced with three adult children. Mr Kennedy travelled to the Middle East to meet Ms Thorne, aged 36, with no substantial assets. Mr Kennedy and Ms Thorne travelled around Europe together with Mr Kennedy buying her expensive jewellery. Ms Thorne returned with Mr Kennedy to Australia to live in Mr Kennedy’s expensive penthouse with the intention of getting married. Mr Kennedy had instructed his solicitor to prepare a prenuptial agreement and it was made plain to Ms Thorne she was required to sign the pre-nuptial agreement. Ms Thorne did ask Mr Kennedy whether he required Ms Thorne to sign the agreement and Mr Kennedy replied that if Ms Thorne did not sign the pre-nuptial agreement then their planned wedding, which was in six days, would not go ahead. [125] Ms Thorne did receive independent legal advice that she should not sign the agreement but she did sign the agreement. The primary judge, Judge Demack set the pre-nuptial agreement (and the post-nuptial agreement) aside on the basis, inter alia, of undue influence. The Full Court of the Family Court of Australia unanimously allowed the appeal and the High Court of Australia unanimously restored the decision of Judge Demack. Importantly, as the plurality said at [32] “Pressure can deprive a person of free choice in the sense where it causes a person substantially to subordinate his or her will to that of the other party.” [126] Section 87 of the Powers of Attorney Act 1998 provides: “87 Presumption of undue influence The fact that a transaction is between a principal and 1 or more of the following— -- 41 of 51 -- 42 (a) an attorney under an enduring power of attorney or advance health directive; (b) a relation, business associate or close friend of the attorney; gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.” [127] In terms of Thorne v Kennedy and its application to the present appeal, the relevant factual enquiry was whether there was in fact pressure applied by the donee, Mrs Vourlides, upon the donor, Mr Bampton, and if so, has Mrs Vourlides, who bears the onus of proof, shown that Mr Bampton’s will was not substantially subordinated because of that pressure. Importantly, as the plurality of the High Court said in Thorne v Kennedy at [32], there are questions of degree involved. What the donee is required to show is that there was no substantial subordination of the donor’s will. It is an erroneous approach to place the level of substantial subordination at too high a level; in particular, it is not necessary to show that the donor was reduced entirely to an automaton or that the person became a mere channel through which the will of the donee operated. [128] Mr Bampton’s case at trial is not only that he had the benefit of the presumption of undue influence by virtue of s 87 of the Powers of Attorney Act, but also that there was actual undue influence exerted upon him by Mrs Vourlides by virtue not only of his age, his state of ill health, his dependence upon Mrs Vourlides as his carer also and most importantly because of the argument in early August 2018 which preceded the obtaining of the bank cheque by only a few days. Fact Finding [129] The principle factual issue at trial was whether the August 2018 argument occurred, with Mr Bampton’s case being that it did as attested to by his statement admitted into evidence pursuant to s 92 of the Evidence Act 1977 and also by his oral evidence. Mrs Vourlides case was pleaded and conducted on the express basis that there was no such August 2018 incident. As the primary judge observed26 the first task in fact finding was to determine whether there was an argument between Mr Bampton and Mrs Vourlides immediately prior to the payment. Unsurprisingly, the primary judge did accept there was an argument. Such a finding was unsurprising as Mrs Vourlides did swear an affidavit on 27 September 2021 in which she expressly stated (at [45]) “I accept I had an argument with my father because he had paid my brother who did not reside with him at that time in March and April 2018 a total of $550,000. I couldn’t understand why I was to not receive the gift…” [130] Further, in Mrs Vourlides’ same affidavit sworn for QCAT proceedings, Mrs Vourlides did verify that, at the time, living with her father proved to be a challenge for her as her father had memory problems, had forgotten medical appointments, could not remember when he had to pay his bills and she had to constantly remind him about his medical appointments and pay his bills. Mrs Vourlides denied that she blocked Mr Bampton from going to his room during the August 2018 argument but did admit that she was distressed about her brother having received $550,000 from her father. 26 [127]. -- 42 of 51 -- 43 [131] Mr Bampton’s evidence about the altercation is contained in his s 92 evidence statement and was tested in lengthy cross-examination. His evidence remained, with someone with acknowledged memory difficulties, remarkably consistent. [132] The primary judge did accept there was an argument in August 2018 shortly before the payment was made,27 that it involved mutual shouting and swearing, but nonetheless concluded that Mrs Vourlides not only did not actually unduly influence Mr Bampton in his decision, but also that Mrs Vourlides had satisfied the rebuttable presumption under s 87 of the Powers of Attorney Act 1998.28 [133] The primary judge, having concluded there was an argument shortly before the payment was made in August 2018 was then left, in view of the way in which the case was conducted upon the pleadings, with only one version as to what had occurred. Whilst the primary judge accepted that the August 2018 argument did occur, the primary judge made no detailed findings as to what occurred in the argument. The only detailed evidence as to what occurred during the argument was the evidence of Mr Bampton. Mrs Vourlides’ affidavit sworn 27 September 2021, although admitting there was an argument, was devoid of detail as to what was said by Mr Bampton and Mrs Vourlides in the argument. Mrs Vourlides’ affidavit of 27 September 202129 is important as she admits being upset that Larry had received $550,000 while she had not received anything. Mrs Vourlides admits she ‘taxed’ her father about it on a few occasions. [134] Critically, in her affidavit Mrs Vourlides admitted that she had an argument with her father four days before she received the $300,000 8 August 2018 and she only disputed two matters in her father’s version of the argument. Those matters in dispute were that Mrs Vourlides alleged she did not block her father from going to his room and she did not say “you are going to tell me before you go to bed why Larry gets more than me”. Mrs Vourlides admitted that she was distressed, upset and left the house. [135] A review of the amended statement of claim, amended defence, and the amended reply show that the critical factual issue in the trial was whether Mr Bampton and Mrs Vourlides had an argument in early August 2018 shortly before the payment was made. The plaintiff’s case was that such an argument did occur and the defendant’s case was that such an argument did not occur. It was never a part of the defendant’s case that an argument of a different or lesser nature occurred but the primary judge appeared to reason that there was some type of lesser argument in August 2018. The critical passage is [160] of the primary judge’s reasons where her Honour said: “[160] I have already found that there was an argument in August 2018 shortly before the payment was made. It does not follow, as I have already indicated, that the circumstances occurred in the manner descried by Mr Bampton. I have no doubt that Mrs Vourlides felt unfairly done by the way that she was denied any immediate share in the winnings, unlike her brother. I also think it likely that there was an argument on the subject. Even on Mr Bampton’s written evidence, however, that involved mutual shouting and swearing.” 27 [160]. 28 [169], [184]. 29 AB 290-300. -- 43 of 51 -- 44 [136] Mr Bampton’s principal argument upon appeal was that the primary judge acted impermissively in that the primary judge did not have any evidence contradicting Mr Bampton’s version as to what occurred in the August 2018 argument. That cannot be accepted as the primary judge did have a version from Mrs Vourlides in her 27 September 2021 affidavit which, as stated at [39], disputed only two minor matters. [137] A guiding principle of fact finding by a trial judge in a civil case was set out by Gleeson CJ and Heydon J in Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at [36]: “A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal.” [footnote omitted] [138] In Suvaal v Cessnock, Callinan J said at [149]: “[149] I agree with Giles JA that the Master's explanation of the accident was no more than “a rationalisation of what occurred … from final overload before the [appellant] went into the potholes.” The principle that findings by judges of first instance are owed much deference because of the judge's advantage over appellate courts by reason of seeing and hearing the witnesses can have little useful application to a case in which the judge has found in favour of a party who was a witness, a version which he has not only not given but which he has also resolutely and repeatedly rejected…” [footnotes omitted] [139] Suvaal’s case was applied by Holmes JA (as her Honour then was) in Tep v ATS Australasian Technical Services [2015] 2 Qd R 234; where her Honour said at [22]: “The trial was not conducted strictly on the pleadings and they were not amended, but that did not preclude a verdict on the facts as they emerged: Leotta v Public Transport Commission (NSW); Water Board v Moustakas. In any event, the real issue in the case was whether the appellant was standing on the rail at the time when he fell.” […] [24] As was observed in Suvaal, it was not the trial judge’s task to find an alternative explanation of how the accident could have occurred. Indeed, this was not simply a matter in which the trial judge arrived at a version of events where evidence was wanting; his finding as to the platform height contradicted both the pleadings and the direct evidence from both parties. […] [26] The finding that the platform was set at half a metre above the ground was critical to making the respondent’s version of the accident feasible. It was not open on the evidence, and its -- 44 of 51 -- 45 making without notice to the appellant was a denial of natural justice. The judgment must, accordingly, be set aside…” [footnotes omitted] [140] In the present case, in my view, it was not open to the primary judge to accept that there was an argument in August 2018 and then to conclude that the argument was substantially different in nature (as opposed to detail) than that described by Mr Bampton other than the two exceptions as stated in Mrs Vourlides’ affidavit of 27 September 2021. As discussed in [152] below, that does not mean the primary judge was obliged to accept everything Mr Bampton said about the 2018 argument, but she was constrained in making any finding that cast the 2018 argument in a different nature or as having a different effect than as alleged by Mr Bampton. As set out in [147] and [148] below Mrs Vourlides accepted that if the 2018 argument occurred it constituted “egregious…elder abuse”. [141] The primary judge did not make any express findings as to what, if any, type of lesser argument had occurred. The primary judge, after stating her reasoning at [160] as set out above then concluded at [161] “In the end, I am unable to accept that the cheque was presented as a result of Mr Bampton being bullied into it. Mr Bampton was a strong and forceful personality.” [142] No issue was enjoined between the parties that Mr Bampton had been bullied into providing the cheque. The precise allegation in issue between the parties was that Mr Bampton was unduly influenced by his daughter, Mrs Vourlides, in providing her with a $300,000 bank cheque in circumstances when in the months prior to the cheque there were arguments concerning his unequal treatment of his two children and in particular where there had been an argument in the few days preceding the presentation of the cheque. It was not for Mr Bampton to prove that he was bullied by Mrs Vourlides. It was not for Mrs Vourlides to prove that she did not bully Mr Bampton into presenting the cheque, but rather Mrs Vourlides, because of the presumption of undue influence, was required to prove on the balance of probability that she did not influence Mr Bampton in providing the cheque, having accepted there was an argument. [143] As set out above, a trial judge is permitted to make findings of fact outside of factual issues identified by the parties in pleadings only in cases where evidence is admitted in the trial upon those issues. In such a case, the pleadings ought to be amended to reflect the factual issues which arise outside of the pleadings, however, that does not preclude the trial judge acting upon that evidence. [144] What is not permitted is for a trial judge to make factual findings not only outside the factual issues raised on the pleadings but also outside of the evidence raised in the trial. A court can make findings of fact by inference, but cannot make findings of fact or inference from conjecture or speculation. [145] In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Lord Wright explained at 169-170: “There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not -- 45 of 51 -- 46 go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.” [146] Lord Wright’s reasons were approved by the High Court in R v Baden-Clay (2016) 258 CLR 308 at [55] and as the High Court explained in that case at [63] where the parties only offer two versions of fact which are mutually exclusive, it is impermissible for a finding of fact to be made based upon a rationalisation of what may have occurred when no party had put that as part of their case and there was no evidence to support such a rationalisation. [147] The appellant’s case was pled and argued on the basis that the early August 2018 major altercation was the key contentious factual issue in the trial30. The defence case as pled was concisely articulated31 as follows: “The defendant denies that the purported early August 2018 altercation or any similar altercation took place between herself and the plaintiff prior to August 2018. The defendant acknowledges, however, that a year later, in August 2019, an altercation in which different matters were discussed did take place at the Bundall Hotel. The defendant contends it was the only occasion the plaintiff left a dinner at the Bundall Hotel on foot. Of course, if August 2019, and not August 2018 was the date that the plaintiff left the hotel on foot, the prospect of there being an altercation, as the plaintiff would have it, shortly thereafter at 8 San Remo Boulevarde is non-existent, as the gift had already been made a year before.” [148] The timing of the major altercation, that is in August 2018, was the critical factual issue. On the plaintiff’s version, after having two heated arguments in May 2018 and apologising in respect of his conduct of the later argument, the appellant was so upset by the issue being raised again at the public place of a hotel that he, then an 86-year- old man, attempted to walk from the Bundall Hotel to his daughter’s residence. The defendant conceded:32 “Of course, if the early August 2018 altercation in fact took place, it was an egregious and appalling example of elder abuse. It involved behaviour on the part of the defendant which was so grossly bad that in the ordinary course a reasonable person in the plaintiff's position could hardly continue to repose trust and confidence in a daughter like the defendant…” [149] That concession, rightly made, was that if the major altercation occurred in August 2018, then it was plain that such an altercation would place significant emotional pressure on Mr Bampton. [150] As to the critical factual issue at trial, the primary judge reformulated that factual issue at [133]: “[T]he heart of the issue is the quality of the conversation and the likelihood for it to have had an impact on the father.” That was not the issue that the 30 AB 110 paragraph 12 the plaintiff’s outline of submissions and AB 168 paragraph 161 plaintiff’s outline of submissions on trial. 31 AB 198 paragraph 137 in defence submissions on trial. 32 AB 219 paragraph 198 in defence submissions on trial. -- 46 of 51 -- 47 parties litigated in the case by pleadings or by way of evidence. Further, the primary judge said at [139] “There were clearly elements of exaggeration in the [Mr Bampton’s] statement, including the assertion that the argument ‘raged’ for more than 1 hour, possibly 2 hours.” [151] The appellant was not cross-examined in any way to suggest there were elements of exaggeration in his statement and nor was it ever put to the appellant that the argument which he asserted occurred in August 2018 did not rage for more than one hour, possibly two hours, such that the primary judge’s conclusion at paragraph [140] that “In the end I am not convinced that the argument took place for the time and in the manner stated by Mr Bampton” does not rest in any evidence brought in the trial, nor was it put to him that the argument did not take place for the time and in the manner stated by Mr Bampton. The defence case, as stated above, was quite simply that there was no argument at all in August 2018 but there was a similar argument in August 2019. [152] The consequence of the primary judge finding that there was an altercation in early August 2018 as opposed to in August 2019 as alleged in the defendant’s case is that, with the exception of the matters referred to in paragraph [134] above, Mr Bampton’s evidence as to what occurred in the August 2018 argument is uncontradicted. That, however, does not mean that that evidence must be accepted. [153] In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 the plurality said at [60]: “[60] A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of “actual persuasion” which is required before a fact may be found. “To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence … It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.” The evidence must “give rise to a reasonable and definite inference” to enable a factual finding to be made; mere conjecture based on “conflicting inferences of equal degrees of probability” is insufficient. As Dixon CJ said in Jones v Dunkel, the law: does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.” [footnotes omitted] [154] The primary judge did not accept the entirety of Mr Bampton’s version of what occurred in the August 2018 argument. Whilst it would appear that there was nothing -- 47 of 51 -- 48 inherently implausible in Mr Bampton’s version of events and nor could it be said there was an objective likelihood that his version of the argument ought not be accepted, it does appear that the primary judge, as the trier of the facts, did not reach a state of actual persuasion that is required before a fact may be found. [155] The primary judge did not accept Mr Bampton’s evidence that the August 2018 argument occurred in the exact manner as he alleged. In particular, the primary judge at [139] and [140] rejected that the argument took place for possibly two hours. Her Honour also rejected that the argument occurred in the “manner stated by Mr Bampton”. In my view, those findings were open to the primary judge as the primary judge did not reach a state of actual persuasion of the truth and accuracy of all Mr Bampton’s evidence as to the content of the August 2018 argument. [156] Her Honour did, however, accept there was a significant argument between Mr Bampton and Mrs Vourlides four days before Mr Bampton presented Mrs Vourlides with a $300,000 cheque. The argument was heated with two persons of mature years and in a loving father daughter relationship shouting and swearing at each other such that both Mrs Vourlides and Mr Bampton were extremely upset by the argument. Objectively, Mrs Vourlides had made the fair statement that she had not been treated equally with her brother and that her brother had been favoured. An important issue in the trial therefore is what inference or secondary finding of fact flows from the acceptance of the primary fact that there was a heated argument in early August 2018. [157] In accepting that the early August 2018 altercation occurred and that the provision of the bank cheque for $300,000 occurred within a few days of that major argument, it is an inescapable conclusion or inference that the major altercation did place pressure upon the appellant and act upon his mind to cause him to provide his daughter with a $300,000 cheque. It is a “compelling inference”.33 The appellant, however, did not need that factual inference to succeed in his case as pled as he had the benefit of the statutory presumption of undue influence by s 87 of the Powers of Attorney Act. To the contrary, Mrs Vourlides needed to show that Mr Bampton’s will was not influenced by the pressure applied on him by Mrs Vourlides. [158] In Yerkey v Jones (1939) 63 CLR 649 at 675 the High Court said in respect of presumed undue influence that “the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused.” [159] In Baker v Affoo [2014] QSC 46, Jackson J said at [97]-[98]: “[97] The defendants sought to establish by their evidence that Ted was fixed in his views, determined, and not likely to change his mind once he formed a view. All of this was presumably intended to show his independence and “a footing of equality”. But against the objective facts, the attempt took on an unreal aspect. At the time of the transfers, Ted was 89, recently widowed, and without other close by emotional supports, except for Bill and Rhonda. He was already physically dependent upon them and that was increasing. He was probably aware that his short term memory was failing or had failed. His concern was to live out his days on the farm. His hope and intention, in doing 33 Fox v Percy (2003) 214 CLR 118, at [29] per Gleeson CJ, Gummow and Kirby JJ. -- 48 of 51 -- 49 so, were to persuade Bill and Rhonda, as close friends, to continue and increase their support for him. [98] In those circumstances, for Bill to take a gift of a large amount from Ted was on its face unconscientious because Bill was in a position where great confidence was reposed in him by Ted. Bill, with the benefit of legal advice as well as financial advice, ought to have realised that it was necessary to establish that Ted’s decision was made with the benefit of independent advice. That Ted was doing it apparently without telling his children made that even more important. [160] As demonstrated by Jackson J, the objective facts and circumstances of the impugned asset transfer are in the absence of independent legal and financial advice, determinative of the issue of whether a donee has discharged its onus. [161] The relevant objective facts as found by the primary judge in the present case were: 1. The appellant was 86 years of age. 2. The appellant had been widowed some years earlier when he was living in a retirement village. 3. The appellant has a severe dislike of living in the retirement village and came to live with his only daughter. 4. The appellant had won approximately $986,000 on Golden Casket on 14 March 2018. 5. The appellant had transferred a large portion of the $986,000, about $550,000, to purchase a property together with his son by April 2018. 6. The appellant had, on 12 April 2018, executed a will expressly withholding the disposition of any part of his estate to his only daughter until her husband, Jim Vourlides, had passed. 7. On discussing his new will with his daughter in the May of 2018, there were two serious arguments between the appellant and his daughter which caused him to write a lengthy letter of apology on 15 May 2018. 8. In early August 2018 which was a major altercation which was heated and involved swearing and greatly upset the appellant and the respondent. 9. The appellant handed his daughter a cheque for $300,000 but a few days later. [162] The only conclusion or inference from the objective primary facts found by the primary judge is that the respondent had placed significant pressure on the appellant in the sense discussed in Thorne v Kennedy. Accordingly, the respondent could not show that the payment was the exercise of the free will of the appellant. The appeal ought to be allowed and judgment entered for the appellant. [163] CROWLEY J: I have had the advantage of reading the draft reasons for judgment of both Bond JA and Crow J. I agree with Bond JA that the appeal should be dismissed for the reasons articulated by his Honour. -- 49 of 51 -- 50 [164] I do however wish to briefly state some additional reasons of my own which outline why I agree with Bond JA’s conclusions rejecting the appellant’s grounds of appeal concerning his undue influence claim. In doing so, I gratefully adopt the factual background and analysis of the law and evidence set out by Bond JA. [165] The appellant’s case in this respect was put on two bases. The principal basis was that he made the $300,000 payment to his daughter because of her actual undue influence. The further or alternative basis was that the circumstances in which the payment was made gave rise to a presumption of undue influence. In that regard, the appellant contended that the presumption arose either in fact, because of the special relationship that existed between himself and the respondent, or in law by operation s 87 of the Powers of Attorney Act 1998 (Qld). On either scenario, the payment was said to be vitiated. [166] Whilst the occurrence and content of the August altercation were critical factual matters for the primary judge’s determination, the onus of proof must be borne steadily in mind when considering the impugned findings of the primary judge and when assessing the appellant’s grounds of appeal and arguments in this Court. [167] On his case of actual undue influence, the appellant bore the onus of proving that he made the payment as a result of the respondent’s influence, rather than in the free exercise of his independent will. The appellant sought to prove that was so by establishing that the August altercation had occurred in the way as pleaded by him in his Statement of Claim and as described by him in his evidence. That the incident had occurred in that way, and that he had subsequently made the payment because of the respondent’s actions and behaviour, were crucial facts the appellant needed to establish to prove the ultimate fact in issue of whether he had made the payment by reason of actual undue influence. [168] Conversely, on the appellant’s case of presumed undue influence, there was a shifting onus of proof. If the appellant established a basis in fact for a presumption of undue influence, then it would fall to the respondent to rebut the presumption. Irrespective, because of the operation of s 87 of the Powers of Attorney Act, the respondent bore the onus of rebutting a presumption of undue influence. [169] Whilst the occurrence and content of the August altercation were of course relevant facts to each inquiry, it was not essential for the respondent to positively prove what had happened on that occasion in order to discharge her onus. The respondent was entitled to rely on the facts and circumstances established by the whole of the evidence to rebut any presumption of undue influence. In contrast, the appellant’s case on actual undue influence depended entirely upon him proving that the August altercation occurred in the manner he had described in his evidence. [170] Of course, if the appellant had proven that the August altercation occurred in the way he claimed, then any presumption of undue influence would have been a redundant issue as the appellant would have proven his claim of actual undue influence. In contrast, proof that an argument had occurred, but not to the extent and in the manner as alleged by the appellant, would necessarily have eliminated the appellant’s actual undue influence claim but would have remained relevant to whether the respondent had rebutted any presumption of undue influence, at least in terms of the statutory presumption. [171] It was in those circumstances that much depended upon the primary judge’s factual findings as to the occurrence of the August altercation and its content and effect. In -- 50 of 51 -- 51 that respect, the appellant’s contentions that the respondent gave no evidence on the issue and that the appellant’s evidence was unchallenged and therefore ought to have been acted upon by the primary judge cannot be accepted. [172] It was simply not the case that the appellant’s evidence about the August altercation was unchallenged or uncontradicted. As Bond JA has identified, the occurrence and content of the conversation was put in issue on the pleadings, whereby the respondent denied that an altercation of that kind had ever happened at any time. Further, whilst the respondent maintained in her oral evidence at trial that the only event of a similar nature, albeit involving a conversation to different effect, had occurred in 2019, well after the impugned payment, her QCAT statement was also in evidence. In that statement, the respondent accepted that in August 2018, a few days before the appellant gave her the bank cheque for $300,000, she had argued with him about why she had not yet received the gift of $300,000, being the sum he had promised he would give her in his May 2018 apology letter. Although she stated she did not remember the “gist of the conversation”, she nevertheless expressly denied the appellant’s account that she had blocked him from going to his room and had shouted “you are going to tell me before you go to bed why Larry gets more than me – I want $300,000”. She also recalled that the discussion had happened in the loungeroom and that she had become upset and left the house. In addition, she further made plain, “I did not by any direct or indirect means cause the payment to be made” and “I did not cause or induce him to make the payment”. [173] In my view, it is implicit that by her statement the respondent denied the content and effect of the altercation as alleged by the appellant. [174] In any event, even if it were to be accepted that the only evidence about the August altercation was that given by the appellant, that did not mean the primary judge was obliged to accept his evidence. As Bond JA and Crow J have each noted, in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore34 the High Court explained that a court is not bound to accept uncontradicted evidence, and there are any number of reasons why that is so. Chief amongst them is that the trier of fact simply does not reach the state of “actual persuasion” required before a fact can be found. In my view, that is plainly what occurred here. The primary judge accepted on the evidence before her Honour that an altercation had occurred, that it had concerned whether the respondent would receive $300,000 from the appellant and that it had involved mutual shouting and swearing. The primary judge was not otherwise persuaded that the argument took place in the way the appellant contended or that it had the effects upon him that he claimed. [175] In my view, upon finding that the August altercation did not have the content and effects as alleged, the appellant’s case on actual undue influence could not succeed. [176] That then left for consideration the case on presumed undue influence. On that aspect of the case, the primary judge found that the respondent had discharged her onus and gave several reasons for so concluding. The primary judge’s findings were open on the evidence. No basis has been demonstrated to set them aside. In particular, I do not consider that the primary judge’s conclusion was contrary to a compelling inference that the payment was actuated by undue influence because it occurred so soon after the August altercation. 34 (2023) 97 ALJR 857, [60] (Kiefel CJ, Gageler and Jagot JJ). -- 51 of 51 --