Bampton v Vourlides [2023] QDC 248

DISTRICT COURT OF QUEENSLAND CITATION: Bampton v Vourlides [2023] QDC 248 PARTIES: WILLIAM JOHN BAMPTON (plaintiff) v SUZANNE ELAINE VOURLIDES (defendant) FILE NO: BD No 2560 of 2021 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 22 December 2023 DELIVERED AT: District Court at Brisbane HEARING DATE: 7 November 2022; 8 November 2022; 9 November 2022; 10 November 2022; 14 December 2022; 15 December 2022; 6 March 2023 JUDGE: Sheridan DCJ ORDERS: 1. The plaintiff’s claim is dismissed. 2. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Thursday, 25 January 2024. 3. If the parties cannot reach agreement as to costs: (i) the plaintiff file submissions, of no more than 4 pages in length (excluding any attachments), by 4:00pm, Thursday, 1 February 2024; (ii) the defendant file submissions, of no more than 4 pages in length (excluding any attachments), by 4:00pm, Thursday, 8 February 2024; and (iii) the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Thursday, 15 February 2024. CATCHWORDS: EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – where the plaintiff is the father of the defendant – where the plaintiff transferred $300,000 to the defendant by way of gift – where the defendant held from the plaintiff an -- 1 of 38 -- 2 enduring power of attorney at the time of the transfer - where the plaintiff alleges the transfer was the result of undue influence – where that is said to result from an altercation a few days before the transfer – whether there was actual undue influence – whether the presumption of undue influence had been rebutted – whether the retention of the money by the defendant was unconscionable – whether a declaration should be made that the transfer is null and void LEGISLATION: Powers of Attorney Act 1998 (Qld) CASES: Bassett v Registrar of Titles [2021] QSC 341 Birch v Birch [2020] QCA 31 Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1998) 194 CLR 457 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Johnson v Buttress (1936) 56 CLR Jones v Dunkel (1959) 101 CLR 298 Louth v Diprose (1992) 175 CLR 621 Quek v Beggs (1990) 5 BPR 11,761 Smith v Glegg [2004] QSC 443 Urane v Whipper [2001] NSWSC 796 Wilby v St George Bank [2001] SASC 388 COUNSEL: A Morris, with I Erskine, for the plaintiff M Amerena for the defendant SOLICITORS: Barclay Beirne Lawyers for the plaintiff Mark Treherne & Associates for the defendant Introduction [1] In this claim, William John Bampton seeks to have set aside a transfer made by him of $300,000 to his daughter, Suzanne Vourlides on 8 August 2018. [2] Mr Bampton seeks a declaration that he was induced to make the transfer by way of a gift by Mrs Vourlides’ undue influence or unconscionable conduct. Undisputed evidence [3] Mr Bampton was born on 9 June 1931. At the time of the hearing, he was 91 years of age. [4] In 1952, Mr Bampton married his wife, Elaine Bampton. There were two children of the marriage, Larry Bampton born on 13 January 1957 and the defendant, Suzanne Vourlides, born on 12 November 1954. -- 2 of 38 -- 3 [5] Larry and his former wife have one child, Hugh Bampton, born 18 November 1995. Hugh has two children; Ronan born 21 April 2017 and Emily born 22 July 2019. [6] Mrs Vourlides married Dimitrious (Jim) Vourlides in 1983 and together they had three children; Emily born 5 December 1985, Mark born 26 May 1987 and Paul born 1 October 1990. Mark has one child, Marshall, born 16 October 2020. [7] Mrs Bampton suffered a stroke in 2012. Mr Bampton and his wife moved into supported accommodation at Tall Trees Tanah Marah Retirement Village in or about 2014. Mr Bampton’s wife passed away on 21 December 2015. [8] Immediately following the passing of Mrs Bampton, Mr Bampton resided at the home of his daughter and her husband at Bundall, Gold Coast. In or about March 2016, Mr Bampton returned to reside at Tall Trees until on or about 25 January 2017 when he left Tall Trees and moved permanently to reside at the home of his daughter and her husband at Bundall. Mr Bampton resided there until 23 September 2020. [9] During the period when Mr Bampton resided with Mrs Vourlides: (a) From in or about December 2017, Mrs Vourlides received payment from Centrelink in the nature of a carer’s allowance in respect of Mr Bampton; though there is conflicting evidence as to the start date of the payments and the weekly or fortnightly amount of such payments; and (b) Mr Bampton paid an amount of $250.00 in cash weekly to Mrs Vourlides on account of room and board, which amount was increased by $10 per week during the period Mr Bampton resided with his daughter; though there is conflicting evidence as to how the making of this payment came about. [10] By an enduring power of attorney instrument dated 3 May 2017, Mr Bampton appointed Mrs Vourlides as a donee under a joint attorney with her brother, Larry, with respect to financial and personal/health matters. Mrs Vourlides accepted the appointment on or about 27 May 2017. The power for financial matters was to begin on Mr Bampton being certified as mentally or physically incapable of making decisions, understanding the nature and effect of, or of communicating decisions. [11] On or about 14 March 2018, Mr Bampton received an amount of $986,212.30 of Golden Casket winnings. -- 3 of 38 -- 4 [12] On 26 March 2018, Mr Bampton signed a contract and paid a deposit of $50,015.00 for the purchase of a four bedroom house for $550,000.00 at 61 Brampton Crescent, Mountain Creek to be owned by himself and his son, Larry Bampton. [13] On 4 April 2018, Mr Bampton paid $505,030 using funds held in his own bank account to his lawyer acting in the conveyance of the house property at Mountain Creek for completion of the purchase. The transfer of the property, as evidenced by the Certificate of Title, was effected on 11 April 2018 in the names of Mr Bampton and his son, Larry, as joint tenants. [14] On 12 April 2018, Mr Bampton executed a new will. Both his son, Larry, and his daughter, Suzanne, were appointed as executors under the will. Pursuant to the terms of the will, Mr Bampton confirmed his intention for the house property at Mountain Creek to be left to his son, Larry, and also left to his son his Commonwealth Bank of Australia (CBA) shares. To his daughter, Suzanne, he left 40 percent of his residuary estate with the remainder of the residuary estate being left to Larry, his four grandchildren and great grandson in 10 percent shares. The portion left to his daughter was made subject to the following conditions: “(i) If Suzanne’s husband, Jim Vourlides, is alive at the date of my death, Larry is to hold Suzanne’s share of my Residuary Estate UPON trust for Suzanne during Jim’s lifetime; (ii) If Suzanne’s husband predeceases Suzanne or upon Jim’s death, I DIRECT that Suzanne’s Share of my Residuary Estate is to be released to Suzanne absolutely; (iii) 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.” [15] On 8 August 2018, Mr Bampton made a payment to his daughter of $300,000 by bank cheque. It is that transaction which he seeks to have set aside. The bank cheque was delivered by hand by Mr Bampton to Mrs Vourlides at her home. [16] Mrs Vourlides subsequently presented the bank cheque for deposit in an account in the joint name of herself and her husband. -- 4 of 38 -- 5 [17] A year later, on 21 August 2019, Mr Bampton executed another will. Both Larry and Suzanne remained as executors of the will. By the new will, Mr Bampton left his Commonwealth Bank of Australia shares to his son, Larry, and left his residual estate 25 percent each to three of his grandchildren, five percent to another grandchild, five percent each to another two of his great grandchildren and the remaining 10 percent to his two children, Larry and Suzanne, in equal shares. [18] On 21 August 2019, Mr Bampton completed a fresh enduring power of attorney appointing Mrs Vourlides and Larry, as joint attorneys for financial and personal/health matters with the power for financial matters to begin on his being certified by a duly qualified medical practitioner or geriatrician “as mentally or physically incapable of making decisions, understanding the nature and effect of, or of communicating or implementing decisions”. Mrs Vourlides accepted the appointment on or about 17 September 2019. [19] On 23 September 2020, Mr Bampton left his daughter’s home and went to live at the Sunshine Coast. [20] On 20 January 2021, Mr Bampton executed a further will, revoking all previous wills. By this will, Mr Bampton removed Suzanne as an executor of the will, removed her as a beneficiary under the will and left pecuniary legacies to his grandchildren in nominated amounts (rather than as a percentage of his residual estate) and the residue of his estate to his son, Larry. There was no mention of the CBA shares. [21] On 3 February 2021, Mr Bampton executed a notice of revocation revoking the appointment of Mrs Vourlides as an attorney pursuant to the enduring power of attorney dated 21 August 2019. [22] In April 2021, Mrs Vourlides brought two applications in the Queensland Civil and Administrative Tribunal (QCAT); one dated 29 April 2021 seeking that an administrator be appointed over Mr Bampton’s affairs to be nominated by the public trustee, and the other dated 30 April 2021 seeking the appointment of the Public Guardian as the guardian of her father. As part of the proceedings, QCAT initiated an application about the revocation of an enduring power of attorney and QCAT considered an application by Mr Bampton for a closure order for the exclusion of Mrs Vourlides attending the hearing. -- 5 of 38 -- 6 [23] In her application for relief, Mrs Vourlides stated that she believed there was a risk of immediate harm to Mr Bampton’s physical and mental health, welfare and property, that he was at risk of financial exploitation and abuse, and immediate risk of self-neglect. She asserted that Mr Bampton had no insight regarding his cognitive decline and that he lacked cognitive capacity to revoke his power of attorney saying he had been diagnosed with dementia in 2000. Her accompanying statement also asserted that he suffered paranoia, delusions and other mental health conditions. [24] On 12 August 2021, the application brought by Mr Bampton for closure of the proceedings was refused, the applications brought by Mrs Vourlides were dismissed, and the application as to the validity of the revocation of the power of attorney dismissed. [25] On or about 13 October 2021, Mr Bampton purchased an unencumbered two-fifth interest as a tenant in common of a rental beachside property situated at 219/5 Bermagui Crescent, Buddina, with his son, Larry, the holder of the three-fifth interest. The pleaded case [26] Mr Bampton’s case rests upon an allegation that there was an argument between Mr Bampton 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. [27] Mrs Vourlides’ 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. The nature of the evidence [28] A great deal of evidence was led by both parties as to what happened in the years leading up to the making of the payment on 8 August 2018 and afterwards until trial. It was used by both parties for the purposes of examining the credit of the witnesses, assisting in fact finding generally and to contextualise the nature of the relationship between Mr Bampton and his daughter. -- 6 of 38 -- 7 [29] The chronology of prior events and the different versions of the purported early August 2018 argument emerge from the accounts of Mr Bampton, Mrs Vourlides and Mr Vourlides. [30] Mr Bampton’s account was given principally by way of a statement dated 31 October 2022 that was tendered to the court as his evidence-in-chief and was supplemented by oral statements made at the hearing in cross-examination and re-examination. The statement of Mr Bampton did not mention many of the events prior to the argument in August 2018. In cross-examination, Mr Bampton said that some of the events occurred as alleged, said that some others occurred but not in the manner alleged, and denied that some others occurred at all. [31] The accounts of Mrs and Mr Vourlides were given by way of oral evidence at the hearing. Also entered into evidence was a sworn statement made by Mrs Vourlides to QCAT on 27 September 2021. [32] The whole of the QCAT file was made an exhibit; without any limitation being placed upon the use which might be made of documents contained within it. There was similarly no qualification that other documents tendered could not be treated as the truth of their contents. [33] Larry Bampton, and the son and daughter of Mrs and Mr Vourlides, Paul Vourlides and Emily Vourlides, gave oral evidence. I have not found any of this evidence helpful in resolving the issues between Mr Bampton and Mrs Vourlides. Most of the evidence of Larry Bampton was hearsay, and the few things that the three witnesses touched upon in their evidence did not add much to the story of the relationship between Mr Bampton and Mrs Vourlides; let alone in a way that impacted upon the critical dispute between then as to the events immediately preceding the payment of $300,000. Mr Bampton moves to live with Mrs Vourlides [34] In or about January 2017, Mr Bampton moved to live back at the family home of Mrs Vourlides. -- 7 of 38 -- 8 [35] In his tendered statement, Mr Bampton stated that he was not asked to leave Tall Trees, rather he said that he left by selling his interest because he was “very unhappy” and his daughter invited him to come and live with her. [36] Attached to his statement, however, was a copy of a fax and two emails from Caroline Warren (as sister in charge of nursing staff and residents care at Tall Tress) to Mr Bampton’s general practitioner. Although Mr Bampton denied one of the incidents referred to in the email sent 18 February 2016, namely that his daughter had found him wandering the neighbourhood, he does not deal with the other matters raised by Ms Warren. The email sent 18 February 2016 refers to Mr Bampton exhibiting “high stress levels”, being “extremely jumpy” and “verbally combative and aggressive (in particular and majority toward other residents from the resident committee) but staff and family also.” The email says that Mr Bampton was “demanding that deceased residents need to make amends with him”, and that when the logistics of that demand were explained, he demanded that “the deceased resident’s friends apologise on his behalf.” The second email to the doctor, sent 23 May 2016, also referred to Mr Bampton being troubled about a past relationship with a deceased resident and said that he “speaks often of retribution”. [37] When shown the email, Mr Bampton agreed that at the time he was being verbally combative and aggressive with the residents committee but not the staff; though added, “There was one staff that was a picker.” He accepted there was one resident, Ross, who had died while he was at Tall Trees that he had an acrimonious relationship with, but he did not accept that he kept asking that the deceased resident make amends with him. He agreed that it could be interpreted as him wanting retribution against Ross and added, “it’s got nothing to do… with me to any effect. It belongs to Tall Trees.” Ultimately, Mr Bampton accepted that, in this last period at Tall Trees, the management of Tall Trees was attempting to restrain his behaviours and he objected to it. [38] During his period of residing in the family home, Mr Bampton paid an amount of $250 on account of room and board, which amount was increased by $10 per week during the period Mr Bampton remained living in the home. [39] In his sworn statement, Mr Bampton says that upon commencing to reside at the Bundall property, Suzanne had demanded that he pay her the sum of $250 per week -- 8 of 38 -- 9 board. Mr Bampton said that when he first moved in, he could not afford to immediately commence paying rent and asked Suzanne if she minded if he commenced paying a week later. He says that Suzanne left the room and spoke to Jim and immediately returned stating that she could not wait to receive payment the following week and required payment from him immediately. He says that whilst he was expecting to pay rent while residing with Suzanne, notwithstanding the subject had not been discussed with him before commencing to reside with her, he was offended by her conduct. He said that the amount of $250 per week that he had agreed to pay was equivalent to the $1,000 per month he had been paying to the retirement village. [40] However, in cross-examination, Mr Bampton accepted that he offered to pay the amount of $250 and that it was not demanded from him. [41] Mrs Vourlides, in giving her evidence, also denied that there was any conversation between herself and her father regarding the need for him to make payment immediately. Mr Bampton wins the TattsLotto [42] On or about 12 March 2018, Mr Bampton won TattsLotto in the amount of $986,210.30. [43] Mrs Vourlides said that, shortly after being told of his win, she took Mr Bampton to the Robina Shopping Centre. She said on the return home they drove passed some units and Mr Bampton said to her, “This is a good thing. I would like to give you and Larry $300,000 each and you might think about buying a unit as a nest egg.” When that conversation was put to Mr Bampton in cross-examination, he said that is “an outright lie” and that he “never suggested that to my daughter at any time.” [44] Mrs Vourlides said that Mr Bampton “wanted to take everyone out to dinner” to announce his TattsLotto win and, to that end, she organised a family dinner at Fitzy’s Roadhouse Grill at Waterford at Mr Bampton’s request. She said the dinner was attended by herself, Mr Bampton, Mr Vourlides, and their children, Mark and Emily, and Mark’s partner. She said that Mr Bampton said at the start of the dinner, “I have won TattsLotto. I’m a millionaire”. -- 9 of 38 -- 10 [45] In cross-examination, Mr Bampton agreed that he asked Mrs Vourlides to organise a dinner to celebrate his winnings, and that in addition to Mrs Vourlides and her husband, Mark, Emily and Mark’s partner were also present. However, he said that he was not quite sure about having made an announcement at the start of the dinner; though he said he was not saying it did not happen but just that he was not sure. [46] In her evidence-in-chief, Mrs Vourlides referred to “[s]hortly thereafter” she and Jim taking her father for a drive looking at units in Surfers Paradise “because he was talking about buying a unit.” She said, “He wanted to have a look at what was available.” Mr Bampton was asked in cross-examination whether this event took place, with counsel for Mrs Vourlides placing the drive “a couple of days after the dinner”, to which Mr Bampton said “No way. No, sir.” [47] Mrs Vourlides said that later they drove with Mr Bampton to the Woolloongabba office of the Golden Casket Lottery Corporation to claim Mr Bampton’s prize. Mr Vourlides gave evidence of being in the car and that he recalled, in the course of the car trip back, Mr Bampton saying to Mrs Vourlides words to the effect “[w]hat I want to do with the money is give $300,000 to Larry, $300,000 to yourself and you can invest it in a unit or some other sort of investment.” Mr Vourlides said he was driving and his wife was in the back. Mrs Vourlides gave no evidence of such a statement being made at that time; though she said she was sitting in the back of the car and could not hear fully the conversation between her father and her husband, Jim. When the conversation was put to Mr Bampton in cross-examination, he said that Mr Vourlides did not accompany he and Mrs Vourlides to Woolloongabba, and denied ever making the statement alleged by Mr Vourlides. [48] In late March 2018, Mr Bampton went to the Sunshine Coast to holiday with Larry Bampton. In Mr Bampton’s tendered statement, he said he visited with the intention of discussing purchasing a property with Larry for Larry to live in. It was during that visit that Mr Bampton signed the contract for the purchase of the house at Mountain Creek for Larry. [49] Following the house purchase, which settled on 11 April 2018, on 12 April 2018 Mr Bampton made a new will. -- 10 of 38 -- 11 Disputed conversations between Mr Bampton and Mrs Vourlides in May 2018 [50] Mrs Vourlides gave evidence that on 5 May 2018, Mr Bampton asked her to take him out to a coffee shop as he wanted to talk about “something very important and very troubling about his will”. She said they went to a coffee shop called Zarraffa’s in Southport. She said that Mr Bampton told her, “I’ve got some troubling things to talk to you about my will.” She said he said, “I’ve bought a house for Larry and now I have to change the will. So Larry will get 10 per cent, I think, and the house, and you’ll get 40 per cent, and the children will get a percentage – 25 per cent each or something to that effect – and you will have to wait until Jim dies before you can have the will.” [51] Mrs Vourlides said that she replied, “Why Dad? Why is – why that? What – why have you said that?” She said that Mr Bampton responded, “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.” Mrs Vourlides said she did not say anything in response because “it was just too confusing and it was too noisy.” She said her father agreed and so they left and went home. [52] Mrs Vourlides said that she thought that the conversation was mostly about the will and she did not think there was any mention of the $300,000 inter vivos gift. [53] The statement provided by Mr Bampton makes no mention of the visit to Zarraffa’s. Mr Bampton was asked in cross-examination whether the conversation at the coffee shop occurred. Mr Bampton said that, although he recalled going to a coffee shop with Mrs Vourlides, he could not recall the date. He agreed that he could have talked with her about changes to his will because he had purchased a property for Larry. He said he was likely to have said, “I am not giving Jim any money from me. It’s only going to Sue, and if I give it to Sue, who’s going to spend it? Jim. So that is my answer to that question.” He agreed that Sue said in response, “What is the sense of that? Why do I have to wait until Jim dies?” [54] He denied, however, saying that his reason for denying Mrs Vourlides access was related to Mr Vourlides printing out papers after Elaine died. He said that it related to another issue that “goes deeper, very much deeper, goes back another 40 years of more”. -- 11 of 38 -- 12 [55] Mrs Vourlides gave evidence that a couple of days later, whilst she was cooking the evening meal after working, Mr Bampton came in and stood on the other side of the kitchen bench and said, “I need to talk to you, Sue, about the will.” She said, she replied “Okay, Dad”, but she was busy preparing the meal and her father did not ask her to immediately leave the kitchen. Mr Bampton said in cross-examination that he had no recollection of the event. However, he did agree that he might have said it. [56] Mrs Vourlides said that on 15 May 2018, after dinner, Mr Bampton requested that Jim and she follow him into the loungeroom because he wished to discuss the will again. She said she sat next to her father on the couch and Jim sat opposite her father on an armchair. Mrs Vourlides said Mr Bampton said, “I’ve changed the will. You’re not going to get anything until Jim dies.” She said she asked him, “Why?” She said he also said, “I’m not going to give you the 300,000 now either and you won’t get that until Jim dies as well.” She said she asked him why and he wouldn’t tell her. She said she “asked him so many times, ‘What’s going on, Dad? What – why the change. What has happened? What – what are you doing?’”. She said he “just wouldn’t answer the question.” She said he “just started getting agitated” and was “gritting his teeth”. She said that, in the course of the conversation, Mr Bampton made reference to the fact that Jim had done something that upset him six years ago, and that he “just kept harping on the fact that, ‘I am going to give you the 300,000 that I was going to give you to Larry. He can put it in trust. He can – he can put it in real estate. He can invest it in anything he likes and when Jim dies, then you can have it.’” [57] Mrs Vourlides said that she said to him, “Well, what’s the point of that? Why wouldn’t you want us to enjoy it while we’re alive?” and she added “Well, what if I die before Jim?” She said Mr Bampton said, “Well, your children will get it, won’t they?” She said he then started getting angry and angrier and “it wasn’t making any sense. He wouldn’t be honest with me.” [58] She said that during the course of the conversation she repeated quite a few times, that it “wasn’t fair” and asked, “Why are you punishing me? What’s the problem? Why have you changed?” She said that she was “very hurt and distressed”. She said it was “just a horrible thing to say to someone”, that she would not get the money until Jim passed away. She said she “started to cry” and “left the house, got in my car and drove down to the local supermarket, where I sat in the supermarket until -- 12 of 38 -- 13 9.30, when the lights were closing and the cleaner asked me to leave because he wanted to shut – lock up.” She said Mr Bampton saw her leave in that state. She said when she came home, he was not around and she went straight to bed. [59] Mr Vourlides was questioned in cross-examination as to whether the 15 May 2018 conversation was, to his knowledge, the first time that Mrs Vourlides had heard of the changes to Mr Bampton’s will. He said that he “couldn’t answer that. You’re going to have to ask her that.” However, he agreed that Mrs Vourlides acted in a “very shocked and surprised way” on 15 May 2018. [60] Mr Vourlides confirmed in giving his evidence the conversation in the loungeroom on 15 May 2018 and said that his wife left the room in tears. [61] Mrs Vourlides said that a few days after 15 May 2018, she received a letter from her father. She said the letter was addressed to both Jim and herself. She said it was an apology for what happened in the lounge room. [62] The letter was tendered in evidence. In the letter, Mr Bampton wrote that he is “very sorry for my bad behaviour on Tuesday 15/5/2018”. He wrote that Mrs Vourlides “clearly indicated to me that it was a stupid idea” to change the will “because you [i.e., Mrs Vourlides] may not live long enough to enjoy the money”. He wrote that “I will give you a cheque when you decide to buy”. He also wrote that he had been convinced to change the will again and that Mrs Vourlides would “get 40% of all money” and that “Larry, Emily, Mark, Paul, Hugh and Ronan [would get] 10%” such that “altogether there would have 6 x 10% and 1 x 40%.” [63] Mr Bampton’s statement does not refer to the 15 May 2018 conversation or the letter. In cross-examination, Mr Bampton did not accept that on 15 May 2018 he had said to his daughter that he wanted to talk to her and denied any conversation occurred that day in the lounge room. However, when it was put to him that he commenced the conversation saying, “I am no longer going to give you the $300,000 from the TattsLotto.”, he said, “I may have. Yes.” When it was put to him that he went on to say, “I’m going to give it to Larry, and he can put it into trust or shares or whatever he wants to do”, Mr Bampton responded, “That is a bunch of lies. I did not say that. No.” Mr Bampton said that he did not recall Mrs Vourlides asking him why he was doing this but then added, “I’m not saying she didn’t say it but I – I don’t remember -- 13 of 38 -- 14 the dates there. I don’t know when it was when she said this. You’re quoting a date.” He added, “I don’t know where we are, so I … I can’t really answer it.” [64] When it was put to him that in the conversation, Sue had responded, “What happens if I die before Jim?”, Mr Bampton said, “That’s going back to the original argument we had when we came back from the hotel. So is that what you’re talking about?” [65] When the location was clarified for Mr Bampton, he denied any conversation ever took place in the lounge room. He said, “I’ve already said that this was spoken in the kitchen on the day of the argument, nothing to do with the lounge room.” [66] Mr Bampton was shown the letter and it was suggested to him that he had handed the letter to Sue in the hallway a couple of days after 15 May 2018. In answering the question, Mr Bampton asked if it had anything to do with the lounge room, and then answered, “No”. Mr Bampton was then asked to look at the document and the question was asked again. This time, he responded, “It may be, yes. It may be.” He was then asked, “And it’s got your signature on it, hasn’t it?”, and he responded, “Yep. I said maybe.” He was asked the same question again, and he responded, “It looks like my signature, sir.” [67] Mrs Vourlides said the matter was not discussed again until her father handed her the bank cheque for $300,000 on 8 August 2018. Mr Bampton’s account of the events in August 2018 [68] In contrast, Mr Bampton says that there was an incident between the parties on or about 6 or 7 August 2018 at the Bundall Hotel which then continued at home. Mr Bampton says it was that conversation which led to him handing the bank cheque to his daughter on 8 August 2018. [69] In his tendered statement, Mr Bampton said that on or about 6 or 7 August 2018, he took Mrs and Mr Vourlides to dinner at the Bundall Hotel on the Gold Coast. He said, “In the course of our dinner, Suzanne demanded that I advise her of what the terms of my will were.” He said that he did not think it was appropriate to discuss such personal business at the hotel and stated, “not here – at home please”. -- 14 of 38 -- 15 [70] In cross-examination, Mr Bampton said that the incident at the Bundall Hotel was triggered by Mrs Vourlides asking him, “Why did you buy Larry a house?”, to which he replied, “[n]ot here dear, we’re in the middle of a public place. We won’t mention it here. We will wait until we get home.” He said he repeated this statement three times. [71] Mr Bampton said that Mrs Vourlides said to him on more than one occasion that she believed she had been treated unfairly and that she should immediately receive a benefit “of at least the same value that Larry has received.” He said that Suzanne stated to him that night that “It was not fair that Larry obtained a benefit in the order of $600,000 from the estate.” In his statement, Mr Bampton said, “The sum of $600,000 which I had adopted for our conversation [was] a rounded up estimate of all benefits which I believed Larry would obtain from my estate in my will dated 12 April 2018.” [72] In his statement, he said that Suzanne then asked him why Larry was getting so much immediately and he said that he stated, “when the day comes, she would get her share of my estate.” Mr Bampton said that Suzanne asked him why she would not receive the gift from him immediately and he stated, “so that your husband Jim does not obtain any benefit from my estate”. Mr Bampton said that he stated to Suzanne that the legacy he intended to leave to her in his estate was only for her and that “I did not want Jim to benefit from that gift.” Mr Bampton said that, in response, Suzanne stated to him, “[W]hat if I die? What if Jim dies?” In response, he stated that, “The kids will get it.” [73] In his statement, Mr Bampton said that he wished to end the conversation because he did not believe that such a conversation was appropriate to be conducted in a public place. He said, “Accordingly, I left the hotel and commenced walking home.” Mr Bampton said that whilst he was walking home, “Jim and Suzanne drove up to me in their car asked me to ‘get into the car’, and we drove home to Bundall.” [74] Mr Bampton said that immediately when they got home, he announced he was going to bed. He said, “I was very upset and wished to escape any further conversation with Jim and Suzanne.” He said, “When I announced that I was going to bed, I was standing in the kitchen. As I attempted to leave the kitchen to go to my bedroom, Suzanne blocked my pathway. Suzanne was conducting herself in a threatening -- 15 of 38 -- 16 manner and I did not have the physical strength to move her out of the way so that I could leave the room.” [75] He said, “Suzanne then shouted at me, ‘you are going to tell me before you go to bed why Larry gets more than me – I want $300.000.’” He said he replied, “No, it’s going in the Will”. He said Suzanne then reverted to her earlier statements, “what if I die?”. He said a shouting and swearing match then took place between himself and Suzanne. [76] He said Suzanne then stated to him, “I want the $300,000 and I want the shares as well”, referring to an “odd-lot parcel of CBA shares”. He said he replied, “No the shares had already been spoken for in the scheme of my Will and my estate stating that they were in the Bamptons share of my estate”. He said in his statement that this meant that his estate had been divided between Suzanne and her children, and Larry’s family comprising Larry, his son Hugh and Hugh’s children, Ronan and Finley. [77] He said Suzanne responded, “So I’m not a Bampton?”. He said that Suzanne was “attempting to suggest that he had somehow excluded her from his estate.” He said he “clarified what he meant by that statement however, the argument continued.” [78] Mr Bampton said that Suzanne then stated, “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.” He said that Suzanne demanded that he make a new Will so that she and Larry were the only persons mentioned in the Will and received a “50-50” split from his estate. He said that Suzanne then stated that he had given Larry $600,000 and that she was only getting $300,000. He said he responded, “…no Larry is only getting $300,000 and the other half interest (in the Property) is my interest.” He said Suzanne then said, “Larry will get it in the finish though won’t he”. [79] He said the argument with Suzanne in the kitchen “raged for more than 1 hour possibly 2 hours” and throughout the argument each of them “were swearing at each other”. [80] He said that Jim was present throughout the argument. He said that he recalled Jim hurriedly moving around the house closing doors and windows “attempting to contain the din caused by our argument”. He said that. in response to his statement to Suzanne that he had carefully thought through the scheme of his will to ensure that it was fair, -- 16 of 38 -- 17 Suzanne said, “referring to the prize I had won in Gold Lotto in March 2018, ‘it’s not your money it’s Tattersall’s money’ or words to that effect.” [81] Mr Bampton said that from the expressions on Suzanne’s face and the movements of her eyes looking over his shoulder, he could sense that Jim was standing behind him motioning to Suzanne that she was saying the wrong thing. He said that both himself and Suzanne were standing in the kitchen throughout the argument and that Suzanne was physically blocking his way from the kitchen. He said, “She made it clear to me at the beginning of the fight that she would not let him leave the kitchen until I provided her with answers to her questions which she believed to be satisfactory.” [82] He said, “Throughout the argument by reason of her positioning herself and leaning over me and shouting at me I believed I would be injured by Suzanne if I did not agree to make the payment which she demanded of me.” He said, “As a result of Jim’s conduct rushing around closing doors and the like I became quite frightened not being sure what he would do or what Suzanne would do to me.” He added, “I am approximately 5 foot 6 and Suzanne is a robust 5 foot 7.” He said, “So I could be relieved of my predicament and go to bed, I stated to Suzanne, words to the effect, ‘If that’s what you want, that’s what you get.’” In his statement, he said, “Apparently satisfied with my response Suzanne then ceased blocking my way out of the kitchen and I went to bed.” [83] In his statement, Mr Bampton made reference to being made to feel guilty by “Suzanne’s unrelenting comments and debate” regarding the fairness of his estate planning. He said that he had been fair and that “my reasons as regards Jim were my own and [were] a matter for me.” He said he was also motivated by the “appalling treatment that had been meted out” to him by Suzanne and her husband and his concern that it “would continue and possibly grow worse” if he did not agree to pay her the money. He added that even though he made the payment “Suzanne and Jim’s treatment of me did in fact grow worse.” He said that he had complained about Suzanne’s conduct and his unhappiness to his then treating psychiatrist, Dr Eyears. [84] In cross-examination, when asked about the conversation at the hotel, Mr Bampton agreed with the suggestion that it “just shouldn’t have been discussed at the hotel”. He said, “We were in the middle of a hotel, and we don’t want public people to know our business. So I said, ‘Wait till we get home.’ So when we got home, ‘Now we can -- 17 of 38 -- 18 continue from there’.” He said, “My daughter is a very bad tempered woman, and once you start, you don’t get sense out of her. She forgets what she’s doing. She forgets what she’s talking about. She makes up words. That is – that is my opinion.” He said at the hotel, “she kept asking me a stupid question and I wouldn’t answer it at the hotel. And that was it. And I left on my own. I walked.” He said, “He walked halfway home before they picked him up in the car.” [85] When asked if things then got much worse at home, Mr Bampton said, “My very word. I took my time getting out of the car. Suzanne jumped out of the car straight away, raced into the kitchen and stood there and waited for me to come in.” [86] He said he walked in the back door, through the kitchen, went to the sink. He then walked to go into the bedroom. He said, “Sue stood in front of me like a 10-tonne damn tank and said, ‘You’re not going anywhere until you have discussed with me why you gave Larry $300,000 for a house’.” He said he responded, “you’ve asked me that many bloody times. I’m not prepared to talk about it now.” He said she kept going and “came out with filthy bloody language.” [87] He said she said, “Well, I want to fucking know.” He said he responded, “Don’t talk to me like that.” He then said he thought to himself, if she was going to swear like that, he would shock her out of it and spoke back to her. [88] He said she kept repeating, “Why did you buy Larry a house? And why don’t you buy us – give us the money? I want the $300,000.” He said he told her “you won’t get the 300,000 until I die. And when I die, you’ll get 300,000 plus whatever the will.” He said she said, “what about Jim?” He said he responded, “You’ve got to be kidding. He gets nothing from me, on account of what he’s done to you.” He said he “didn’t take any bones at all about saying that.” He said, “But it gets on and gets on, and gets on and gets on and ... still baiting.” [89] When asked what he meant, he said “She’s baiting me all the time. Why aren’t you doing this? Why don’t you do that?” [90] He also said in cross-examination that Suzanne said, “what about the shares, ... what about the land at Rum Jungle?”; though there is no mention of any land at Rum Jungle in Mr Bampton’s tendered statement. -- 18 of 38 -- 19 [91] Mr Bampton said that as he started going to bed, Paul Vourlides came into the doorway. Mr Bampton said that he spoke to Paul but does not know what he said to Paul as he was in a “terrible condition”. He said Sue was in the passageway, so he began to argue with her again. Mr Bampton said that he “most probably abused her of some sort”. He said that Jim then rushed in and “looked me in the square of the face and said don’t talk to my wife like that.” Mr Bampton replied, “Righto. You go first”. He said, “He turned around and walked out, and then I went to bed.” In his statement, there is also no reference to Paul being present at the altercation. [92] Mr Bampton said that on 8 August 2018 following the altercation, he, considering that he had no alternative other than to give in to the demands of his daughter, handed a cheque to Suzanne in the amount of $300,000, which she subsequently deposited. [93] In cross-examination, Mr Bampton was asked whether he recalled having dinner at the Bundall Hotel with Mrs and Mr Vourlides between 17 September and the end of September 2019, more than a year after the gift of $300,000. Initially when asked, Mr Bampton said he could not recollect and said that he cannot remember dates. Mr Bampton accepted that he liked eating steaks and that he does eat steaks at the Bundall Hotel and agreed that he may have eaten a meal with them at the hotel in that period. But when asked about his daughter asking about his health directive, he said that he could not remember it. When it was then put to him it was the night that he walked about halfway home, Sue and Jim picked him up and he went to bed, Mr Bampton said that was untrue. He said that was the night of the argument and added, “I didn’t go straight to bed.” Mrs Vourlides’ account of events [94] In giving her evidence, Mrs Vourlides denied both the early August 2018 altercation at the Bundall Hotel and the subsequent argument in the kitchen at home. In terms of any altercation at the Bundall Hotel, Mrs Vourlides’ evidence was that it took place a year later, in September 2019, and that it concerned matters different to what Mr Bampton claims. [95] In giving her evidence as to the dinner at the Bundall Hotel in late September 2019, Mrs Vourlides said that they had just come back from holidays and she said her dad liked going there for a steak. She said, “So we decided to go and go out for dinner.” -- 19 of 38 -- 20 [96] She said that they had all eaten their dinner and her husband had gone to get a second round of drinks. She said that while her husband was away, she said to her dad, “Dad, I know you’ve already done your will, but can you tell me, have I still got power of attorney for you.” When asked as to why she was asking the question, she said, “I really was wanting to know about the health directive because Dad was having chemotherapy for bladder cancer, and when I went to the hospital to admit him, they’d always ask me … have you got power of attorney and health directive for your father.” She said he had just done a new will and that she had signed a power of attorney, so she presumed the health directive was going to be renewed but she had not signed anything. When questioned as to whether there was a separate document, different to the power of attorney, she said, “Yes, there was.” [97] She said that in response to the question, Mr Bampton “got angry and thumped … his hand on the table and said ‘no, we’re not going to speak it here’.” She said that she tried to explain that she was just asking about the health directive, but she said it was too late as he was “walking out the door” and left the hotel. She said that she and Mr Vourlides left after him in their car, pulled up to him twice and “finally did pick him up”. She said that they went home and “Dad went straight to his room, and we just went upstairs. We went to bed.” She said that there was no further conversation between herself and Mr Bampton that night. [98] Mr Vourlides gave a consistent version of events; though he was not present when his wife asked the question. [99] Mrs Vourlides was asked as to when she received the 2019 power of attorney document for signing. She was asked, “On the 21st, were you sent, by the solicitors Bostock & Frazer, a copy of a new enduring power of attorney”, and she said, “Yes.” She said she signed it and sent it back. In fact, the 2019 enduring power of attorney, which was tendered in evidence, was signed by Mr Bampton on 21 August 2019, signed by her brother on 10 September 2019 and signed by Mrs Vourlides on 17 September 2019. [100] In the course of giving evidence, Mrs Vourlides said that she had contacted the solicitors and told them that the address of her father was not correct. At their suggestion, Mrs Vourlides in her handwriting corrected the address. It is stated on the -- 20 of 38 -- 21 document that the address was corrected by her on the document on 16 September 2019. [101] In cross-examination, Mrs Vourlides was asked about a QCAT statement sworn on 27 September 2021 (and in a letter to QCAT bearing a date stamp of receipt of 28 April 2021) when she had said that an altercation had taken place between herself and Mr Bampton about four days before he gifted her $300,000 in August 2018. Mrs Vourlides said that she made her QCAT affidavit with the confused understanding that the conversation that she recalled took place four days before 8 August 2018 rather than on 15 May 2018. She said that she realised her mistake once she viewed her “diary notes”. She said, “the months rolled into one, and I just got it wrong, and then, when I found the letter, I realised it was wrong, because I looked at times and dates and what I did and realised I had gone into carpel tunnel surgery that day. I knew I hadn’t any confrontation with my ... father earlier, and I found the letter and realised the letter had a date on it, and that all brought it back, and I realised I was wrong in my - what I had written.” [102] It was put to her that what she realised is that it was discussed on 15 May 2018 but it was said, “there was nothing to tell you that it wasn’t discussed again in the week – in the first week of August 2018?” In response, Mrs Vourlides said, “There was no written document, but I knew it wasn’t because that was the week I went into surgery, and I would have doctor’s appointments and X-rays, and it’s – didn’t happen in August.” [103] She was asked as to why she was not able to say that when she wrote her letter to QCAT and in her affidavit, and she said, “I didn’t look into the timeline properly. I made a mistake and didn’t look into the timeline.” [104] When challenged further, Mrs Vourlides further stated, “When I made the affidavit, I was in a very emotional, terrible state.” She said, “I’ve never been in this predicament before and I was quite frightened … I was in a muddle.” She said she “hadn’t seriously got all of her documents out and tried to analyse when it was and it all just meld into one, the whole year and it appeared that, perhaps, it was four days before.” -- 21 of 38 -- 22 [105] When Mrs Vourlides was asked about having sworn that the contents of her affidavit were correct, she said that she did not understand the significance of the whole wording, and she added “but QCAT is not a court”. She said that she understood that QCAT were going to have access to it “in connection with costs”. When it was put to her that it was not correct, Mrs Vourlides responded, “I didn’t consider any of it to not be true at the time, but I didn’t have access to all of my notes, and it was only after I had access to my notes that I realised that I had made a mistake because the last letter had a date on it, and it was dated from Dad. It was the 15th.” [106] In cross-examination, Mrs Vourlides was taken in particular to paragraphs 33 and 34 of her QCAT affidavit, where she said: “33. 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. 34. The conversation that took place to which my father occurs, 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. At the stage when the payments were made, I was in possession of my father’s bank statements as his Attorney under a Power of Attorney dated . Annexed to this affidavit and marked “SEV 1” is a true copy of a bank statement in the name of W.J Brampton BSB 063182 ACC00606567.”1 [107] In cross-examination, given what was described as the extensive detail now given of the conversation on 15 May, Mrs Vourlides was challenged as to why she had said she “doesn’t remember the gist of the conversation”. In response, Mrs Vourlides said, “because I was able to look through all of my diary notes and put things into a timeline.” [108] When questioned about the diary notes, she said that the notes were made either on her phone or on the computer. When production was called for all such diary notes, counsel for Mrs Vourlides said that they were all in the QCAT file. It was noted by 1 Errors as in original. -- 22 of 38 -- 23 counsel for Mr Bampton that a text message had been produced that morning, in fact it was said a number of text messages, that were not in the QCAT file. [109] In cross-examination, when being asked about raising the $300,000 in the course of the dinner, Mrs Vourlides said, “No, and I just remembered we go away every year. July/August and we could have been away that year.” It was then said to her, “You could have been? And you might not have been?” She accepted there were no records which would assist her memory. [110] In cross-examination, Mrs Vourlides did not accept that she was angry but described it as her being “distressed”. She said she was glad that her father had purchased a house for her brother. She said she was distressed “because he was leaving it [her money] to Larry to invest or use it in crypto or put it in trust account.” She agreed that she was also distressed by the fact that she would have to wait until Jim died. She also described it as her being “hurt”. [111] Mrs Vourlides was asked as to what other occasions the matter was discussed. In giving her evidence, she confirmed there were the occasions after he had won the TattsLotto when he had said he was going to give Larry and her $300,000. She said there were the conversations in May; the one on 5 May where only the will was discussed and he was going to give her 40 per cent as he had purchased the house for Larry, and the conversation on 15 May where she was told that she would get the money after Jim died. She also referred to the request on 7 May, but said that no discussion happened on that date. Evidence of Mr Bampton’s capacity [112] For the purposes of the hearing, it was accepted that Mr Bampton does not have a diagnosis of dementia. [113] The principal medical opinion dealing with the condition of Mr Bampton was that contained in a health professional report by Dr Fraser, psychiatrist, dated 8 July 2021. Dr Fraser had known Mr Bampton for two months prior to writing the report. Dr Fraser opined that Mr Bampton had a mild degree of cognitive impairment, but believed he still had capacity. -- 23 of 38 -- 24 [114] Dr Fraser also wrote a report dated 10 June 2021 to the solicitors for Mr Bampton acting in the QCAT proceedings, after he had seen him on two separate occasions, stating that he believed that Mr Bampton had testamentary capacity. Dr Fraser stated that Mr Bampton 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. [115] The evidence also included a health professional report from Dr Kanagasabai, general practitioner, dated 26 May 2021. Although the doctor had only known Mr Bampton 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 Mr Bampton was influenced positively or negatively by any specific person. [116] In dismissing the applications made by Mrs Vourlides, QCAT principally relied upon the opinion of Dr Fraser. Evidence of Mr Bampton’s other conditions [117] There is other evidence relating to the conditions of Mr Bampton. [118] There is expert evidence that Mr Bampton suffered long-term anxiety. As early as May 1995, Dr Pomorin, a psychiatrist at South Yarra, wrote a report for Comcare stating that Mr Bampton had frequent episodes of anxiety and depressive symptoms. The doctor thought that the prognosis was poor and that Mr Bampton would need regular psychotherapeutic support and anxiety and antidepressant medication. [119] That report is consistent with reports from Dr Eyears, a consultant psychiatrist at Bundall. In his report dated 16 October 2014 to Mr Bampton’s general practitioner, Dr Eyears describes Mr Bampton as a long-standing patient who suffers from anxiety- depression. In a subsequent report dated 18 August 2016, Dr Eyears records Mr Bampton as acknowledging that he found himself excessively irritable with others at the retirement village. The doctor says that he had increased the Duloxetine and that Mr Bampton reported that he could still feel frustrated with others, but said that he was more considered in how he dealt with things. -- 24 of 38 -- 25 [120] Those diagnosis were accepted by Dr Runganga, a geriatrican. In her report to Mr Bampton’s general practitioner dated 26 August 2015, the doctor records Mr Bampton complaining of short-term memory loss, anxiety and agitation. Dr Runganga recorded a collateral history from Mr Bampton’s wife and staff (at Tall Trees) of Mr Bampton being suspicious of staff intentions and other residents being out to stir him up and damage his belongings. Dr Runganga reported that Mr Bampton’s cognitive concerns were consistent with mild cognitive impairment, and recommended melatonin and ongoing psychology input. She also said that his cognition and behaviours needed monitoring. [121] There was additional material relating to Mr Bampton in the form of what were said to be contemporaneous notes by Mrs Vourlides. In these notes Mrs Vourlides expressed her concerns about her father’s deteriorating mental health. In the course of giving evidence, Mrs Vourlides explained the process by which, what was called the diary notes, were created. Many of them were written in the form of letters to his treating doctors but letters which were never sent. [122] In a draft letter addressed to Dr Eyears dated 12 June 2018, Mrs Vourlides states, “It’s very obvious he is mentally unstable. My husband and I were not aware of just how extensive his mental health diagnosis had become. And that’s apart from his depression.” The letter stated, “His paranoia and delusional thinking is causing him to argue and scream and be rude verbally; abuse my family.” [123] When asked about the note in cross-examination, Mrs Vourlides accepted that as at that date, she felt her father was in trouble. When asked what she was referring to, she said, “The fact he was throwing things at me; he’s argumentative; the fact that he was getting so upset when he spoke; gritting his teeth; throwing projectors at me; throwing CDs and chocolate bars.” She added, “I mean, there’s a whole lot of documentation.” [124] In cross-examination, Mrs Vourlides was asked, if that was her view as to her father’s mental condition on 12 June 2018, how did it seem to her appropriate to accept a gift of $300,000 from him about eight weeks later. In response, she said, “Because my Dad … had been like that most of his life: an argumentative man. And he was under care. It’s not my decision to make a diagnosis.” She added, “These were just my theories … My thoughts.” -- 25 of 38 -- 26 [125] She was asked as to whether she sought any input from a medical professional before accepting the cheque for $300,000 and banking it, and she answered, “No. Because he’d already gone through a solicitor and purchased a house for Larry. I didn’t think there was a problem. If he wanted to give me a gift from his TattsLotto, I could see no problem in it.” [126] Leaving aside the attempted medical diagnosis of the condition suffered by Mr Bampton, the statements made by Mrs Vourlides about Mr Bampton consist mostly of comments by her as to his observed behaviour. None of those statements, as is apparent from the medical opinion, suggest that Mr Bampton has incapacity. They are consistent, as she said, of his long-standing dominant, difficult personality which is corroborated by third parties. Events immediately prior to payment [127] One of the first tasks in fact finding is to determine whether there was an argument between Mr Bampton and Mrs Vourlides immediately prior to the payment. [128] Mr Bampton says that the argument started at the Bundall Hotel and continued at home. Mrs Vourlides says that there was an argument at the Bundall Hotel, but it occurred a year later, did not continue at home, and concerned a different topic. Counsel for Mr Bampton says I should not accept Mrs Vourlides’ version as to the timing of the altercation which led to the payment. He bases this principally upon the statement that Mrs Vourlides gave to QCAT. [129] The statement made by Mrs Vourlides was in response to a statement provided by Mr Bampton to QCAT in which he referred to the argument at the Bundall Hotel and back at home in similar terms to his written statement before this court. In her statement, Mrs Vourlides firmly says that the conversation to which her father refers took place about four days before the payment. She does not refer at any length to the events, but specifically denies blocking her father from going to his room and shouting that he had to tell her before going to bed why Larry gets more than her, and that she wanted $300,000. [130] In his evidence, the solicitor who took that statement described Mrs Vourlides as being in an agitated state. That may easily be accepted. It is highlighted by the fact Mrs Vourlides says in her statement that the day after the events to which Mr -- 26 of 38 -- 27 Bampton was referring Mr Bampton apologised and provided her with a letter of apology. The letter she annexes to her statement apologised for Mr Bampton’s behaviour on 15 May 2018; not early August 2018. [131] It is almost impossible not to accept her evidence to QCAT that there was an argument in the days immediately prior to the payment. Not only is her statement clear about that fact, but it is difficult to accept that the last conversation prior to the payment of $300,000 occurred on 15 May 2018 and there was no subsequent conversation prior to the payment. [132] Mrs Vourlides knew in February 2018 that her father had won the Lotto and that in April 2018 he had purchased a house for his son. In May 2018 she had received a card from her father apologising for his behaviour during the conversation on 15 May 2018 and promising to change his will so that she got 40 percent of all money. It is unlikely that the issue was not discussed again after that date. [133] However, the heart of the issue is the quality of the conversation and the likelihood for it to have had an impact on the father. [134] Much emphasis was placed by counsel for Mr Bampton on matters of credit. It was submitted that I could not accept the evidence of Mrs Vourlides given the difference between the contents of the affidavit she presented to QCAT and her evidence before this court, and the assertions made to QCAT about the vulnerabilities and incapacities of Mr Bampton and her case now. [135] These matters give every reason to treat the evidence of Mrs Vourlides with caution. [136] It is less clear that some of her answers in evidence generally should cause the truthfulness of her evidence to be doubted. One piece of evidence relied upon as an example of her guarded and non-responsiveness to questions was her denial that she knew QCAT would rely on her sworn affidavit, and her statement that she thought it would only review it in connection with costs. A person with more knowledge of the system and intelligence generally would likely have answered this and other questions on the topic more directly. Mrs Vourlides was not of that type, and what is important is that the awkward answer followed earlier affirmative statements that she knew her affidavit was going before QCAT as her sworn account of events and as her evidence of things that she could say were true. -- 27 of 38 -- 28 [137] I am also mindful that the application made by Mrs Vourlides to QCAT was made after she had been advised of the revocation of her joint power of attorney with her brother and the refusal of Mr Bampton and Larry Bampton to engage with her; a fact both Mr Bampton and Larry Bampton admitted in their evidence. Her solicitor gave evidence, which, as I have indicated that I accept, that Mrs Vourlides was in a very stressed condition at the time. [138] It was submitted by counsel for Mr Bampton that Mr Bampton gave 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. [139] This is not a particularly auspicious start for the purposes of deciding in detail what happened in the argument a few days before the payment; even if accepted. It is, however, not possible to accept that, even qualified in the way suggested, Mr Bampton gave his evidence in cross-examination in a way that invites immediate acceptance. The matter is further complicated by the fact that the evidence-in-chief was given by way of a statement; presumably prepared with the assistance of others. There were clearly elements of exaggeration in the statement; including the assertion that the argument “raged for more than 1 hour possibly 2 hours”. [140] In the end I am not convinced that the argument took place for the time and in the manner stated by Mr Bampton. On his version, Mrs Vourlides was the dominant actor. That is an unlikely scenario having regard to other evidence relating to his behaviour; including his letter of apology relating to the argument in May 2018. [141] There is also something in the submissions of counsel for Mrs Vourlides that the discrepancies between Mr Bampton’s oral evidence and his statement, and the failure to mention matters in his statement which he subsequently accepted in his oral evidence suggest an element of reconstruction was taking place on the part of Mr Bampton. [142] There are other matters of significance. [143] The medical evidence included a diagnosis that Mr Bampton suffered long standing anxiety and depression, but it clearly stated that Mr Bampton had capacity, and, notwithstanding her best efforts, it would seem that Mrs Vourlides was unable to -- 28 of 38 -- 29 obtain any medical opinion to the contrary at the time of the QCAT proceedings. There was evidence from third parties that Mr Bampton could be aggressive towards others. [144] In addition, the type-written letters from Mr Bampton to Mrs Vourlides and his letters to the Challenger Bank have all the indicia of being written by a person with a clear mind and definite sense of purpose. Even on his case, he went down to the bank, unaccompanied, a few days later, not immediately, and obtained a bank cheque for $300,000 and then gave it to Mrs Vourlides. There is no suggestion that the payments of $50,015 and $555,000 by Mr Bampton in March and April 2018 respectively, which enabled he and his son Larry Bampton to purchase a house at Mountain Creek as joint tenants were other than by a person who knew what he was doing. [145] Leaving aside this more objective evidence, Mr Bampton gave his evidence in a very strident, forthright way. It was clear that he was not a person who liked to be challenged. [146] The most striking example of this involved his denial on the first day of his cross- examination of any knowledge of a book entitled, “The Australian Carpenter”. He said he had never seen it before. He repeated that statement the next day. When his attention was drawn to a notation in the book to him from his wife, he lost his temper complaining that Mrs Vourlides should not have kept that book. [147] In contrast, Mrs Vourlides appeared to be timid and lacking in confidence. She became emotional when recounting how her father behaved towards her. Her recounts were consistent with the sorts of behaviours identified in the emails of Ms Warren, Mr Bampton’s own notes and his letter of apology and birthday cards. There was clearly a power imbalance with Mr Bampton being the stronger of the two. [148] As to the evidence of Mr Vourlides, who was said to be present during the relevant conversation, his evidence clearly supports the evidence of Mrs Vourlides. However, in considering his evidence, it was clear that he was following the script and I do not consider that I should place any weight upon his evidence. Mr Vourlides accepted, in cross-examination, that his testimony in court was “based on reading his wife’s diary and giving evidence from the notes that she made.” That is not to say that I do not accept that he is telling the truth because much of his evidence is consistent with -- 29 of 38 -- 30 the evidence of Mr Bampton and Mrs Vourlides, but I cannot regard it as corroborating her evidence. Legal principles [149] It is accordingly necessary to next consider the legal issues that arise. [150] The case for Mr Bampton is put on two bases: that the transaction should be set aside because it has been procured or tainted either by undue influence or unconscionability. The distinction between the two is as described by Mason J in Commercial Bank of Australia Ltd v Amadio.2 Undue influence looks to the quality of the consent or assent of the innocent party. Unconscionable conduct looks to the conduct of the party who has retained a benefit from a party in a disadvantaged position. [151] It is well recognised that a person of full age and capacity may dispose of their property in such a manner as they may chose.3 It is also well recognised that a parent’s disposition to children may be explicable as being the consequence of parental love and affection, and hence that dispositions of parent to child are not a presumed relationship of influence.4 [152] There are, however, two categories of undue influence cases where equity will intervene: firstly, where it can be demonstrated that the will of the disponor has been overborne, and secondly, where it can be shown that the relationship between disponor and disponee is such as to raise a presumption of undue influence. [153] In this case, it was argued on behalf of Mr Bampton that the jurisdiction to set aside the transaction should be exercised either on the basis that it occurred by reason of actual undue influence, or that it occurred by reason of presumed influence based either upon the special relationship founded on the evidence or by reason of the provisions of s 87 of the Powers of Attorney Act 1998 (Qld). Section 87 provides that a presumption of undue influence arises where there is a transaction between a principal and a person who holds a power of attorney; as Mrs Vourlides had at the relevant time. 2 (1983) 151 CLR 447, 461. 3 Quek v Beggs (1990) 5 BPR 11,761. 4 Wilby v St George Bank [2001] SASC 388; Urane v Whipper [2001] NSWSC 796, [22]. -- 30 of 38 -- 31 [154] Both presumptions are capable of being rebutted by a party who proves, on the balance of probabilities, that they took no advantage of the innocent party and that the gift was the independent and well-understood act of the innocent party in a position to exercise a free judgment based on information as full as that of the disponor party.5 [155] Where neither the facts nor the relationship can be found to be the subject of undue influence, equity will nevertheless set aside a transaction where it can be shown that one party by reason of some condition or circumstance is placed at a special disadvantage as to the other and unfair or unconscientious advantage is then taken by the other party of the opportunity created.6 [156] The condition should be understood as one which seriously affects the ability of the weaker party to make a judgment as to their best interests. A finding of emotional dependence will suffice.7 The other element is that the other party knew or ought to have known of this condition or circumstance and its effect. If these factors are present, the onus again shifts to the disponee to show that the transaction was fair, just and reasonable.8 Consideration of the undue influence claim [157] The objective factual circumstances relied upon by Mr Bampton were that Mrs Vourlides was a formally trained and enrolled nurse and at the relevant time Mr Bampton was living with her in the same house, the transaction was for no consideration and was substantial, Mr Bampton was 91 years of age and Mr Bampton did not have legal advice in relation to the transaction. [158] The substance of the case, however, rested upon the allegation that the argument in August 2018 occurred as set out in the statement of Mr Bampton. In essence the case put was that by positioning herself leaning over him and shouting at him in the kitchen, Mr Bampton believed that he would be injured if he did not agree to make the payment which was demanded of him. To reinforce this point, Mr Bampton said 5 Johnson v Buttress (1936) 56 CLR, 134; Smith v Glegg [2004] QSC 443; Birch v Birch [2020] QCA 31; Bassett v Registrar of Titles [2021] QSC 341. 6 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 461. 7 Louth v Diprose (1992) 175 CLR 621, 629; Bridgewater v Lahey (1998) 194 CLR 457. 8 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 461-2, 474-5, 489; Louth v Diprose (1992) 175 CLR 621, 626; Bridgewater v Leahy (1998) 194 CLR 457. -- 31 of 38 -- 32 in his statement that he was approximately 5 foot 6 and Mrs Vourlides was a robust 5 foot 7. [159] That last statement simply is not true. Apart from their presence in court which I observed, there was a photograph taken of the two of them in 2018. Mr Bampton is clearly the taller of the two. Mrs Vourlides was not diminutive, but neither was Mr Bampton. [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. [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. [162] That was clear from other unchallenged evidence. It was put that a Jones v Dunkel9 inference should be drawn by reason of the failure of Mrs Vourlides to call Ms Warren, who was the author of the emails sent to Mr Bampton’s general practitioner about Mr Bampton’s behaviour. It was submitted that an inference should be drawn that the evidence would have supported the version of events put forward by Mr Bampton. There is no justification in that decision for such an inference to be drawn. The highest a Jones v Dunkel inference would allow is that the evidence would not have assisted the defence case. Even if a stronger inference was possible, I would not be prepared to do so given the nature of the evidence from Ms Warren unaccompanied by any oral evidence. The emails from Ms Warren were admitted without qualification and consist of contemporaneous accounts of the behaviours of Mr Bampton in 2016. Mr Bampton had and took an opportunity to respond to them. He annexed the emails to his statement to deny one of the behaviours recorded by Ms Warren, originating in a statement made to her by Mrs Vourlides. He does not 9 (1959) 101 CLR 298. -- 32 of 38 -- 33 challenge the other statements, and there is no reason, having regard to his behaviour in the witness box, to confine the description of those behaviours to 2016. [163] That Mr Bampton behaved in the way described by Ms Warren whilst at the village is consistent with and corroborated by Mr Bampton’s own notes with respect to events at the village. [164] A Jones v Dunkel inference was also sought to be drawn against the failure to call Dr Chui but there was nothing to suggest that he had any useful evidence to give. [165] Apart from the payments which involved the purchase of the property at Mountain Creek in March and April 2018, there are other signs that Mr Bampton was in command of his finances. On 16 May 2018, Mr Bampton purchased a Challenger annuity for $200,000. On 4 June 2018 he purchased another Challenger annuity for $400,000. These were the second and third Challenger annuities he had at the time of the transaction. Mr Bampton had purchased a Challenger annuity for $263,000 on 31 May 2017. When this matured in 2020, he cashed out rather than rolled it over. This was because he considered that the interest rate was unsatisfactory. [166] Consistent with these investments, Mr Bampton had financial capacity to enter the transaction. He was what could be described as being a comfortable, self-funded retiree. In cross-examination, he stated that he did not really need the Tattersalls winnings and he was struggling to find out what to do with them. [167] Whilst I am conscious of the difference between answers given to non-leading questions in oral evidence and prepared statements of evidence, there are aspects of the statement of Mr Bampton which show his dogmatic determination to maintain his viewpoint. In his statement, he took issue with two allegations in his own statement of claim: as to whether he commenced living with Mrs Vourlides at his own volition or her invitation, and that Mrs Vourlides was an enrolled nurse not a registered nurse as alleged. [168] Larry Bampton 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 Bampton described his father as “an intelligent, strong-willed man”. He recorded that Mr Bampton had said to him that “he does not want to be told what to do or to be talked down to”. -- 33 of 38 -- 34 Those descriptions of Mr Bampton are appropriate as is Mr Bampton’s self- description recorded by Larry Bampton. It is difficult to imagine anyone being able to tell Mr Bampton what to do, or anyone so dominating his mind that he was prevented from exercising his free will. [169] These facts not only mean that I am unable to find that the transaction occurred by reason of actual undue influence, but I am also unable to find that the relationship between Mr Bampton and Mrs Vourlides was such as to give rise to a presumption of undue influence in fact. [170] It is necessary, in any event, given the statutory presumption, to consider whether the presumption of undue influence has been rebutted. [171] In this respect, Mr Bampton relies upon the making of any gift being inconsistent with his expressed position in May 2018 that he would not make any gift whilst Mr Vourlides was still alive, the absence of any independent legal or financial advice being given to Mr Bampton and the proximity in time between the argument and the payment in August 2018. [172] As to the first submission there is, of course, the sentence in the letter written after the argument on 15 May 2018 where Mr Bampton said, as he had told Jim, he would give them a cheque for $300,000 when they decided to buy. That was consistent with the evidence of Mrs Vourlides of her father saying to her, shortly after winning the TattsLotto, that he would give her and Larry $300,000 each and they might like to think about buying a unit as a nest egg. It is arguably consistent with the evidence of Larry Bampton that his father had told him, shortly after winning the lotto, that he intended to purchase an apartment on the Gold Coast for Mrs Vourlides and an apartment on the Sunshine Coast for him, each worth $300,000; albeit that the apartments would be in the name of Mr Bampton and that each would be the ultimate beneficiary of the respective apartments under his will. In 2019 and 2020, Mr Bampton changed his will consistent with him having made the payment as a gift to Mrs Vourlides. [173] In any event, there is no particular reason why Mr Bampton might not have simply changed his mind; to make a payment to Mrs Vourlides consistent with the payment made for the benefit of his son at Mountain Creek and the apology for his behaviours -- 34 of 38 -- 35 and the love he extended in the cards he sent to Mrs Vourlides towards the end of 2018. The transaction is not so improvident in the circumstances of the windfall from the lotto and his own financial circumstances as not to be accounted for by reason of the fact that Mrs Vourlides was his daughter. [174] It is true that no independent advice was given to Mr Bampton prior to the payment. Contrary to the submissions made on behalf of Mr Bampton, however, in Smith v Glegg,10 McMurdo J remarked that in order to rebut the presumption, it was not necessary in every case for a donee to demonstrate that the donor had received appropriate and independent advice. Moreover, whilst it is not essential, it is relevant that is unlikely that Mr Bampton would have taken any notice of independent advice. Clearly, he had a mind of his own and considered, as Dr Fraser recorded, that he had the capacity to make decisions freely and voluntarily. Presumably the advice might have ensured that Mr Bampton knew what he was doing, but the medical opinion even in 2021 was that Mr Bampton was quite capable of operating a bank account, budgeting, paying bills, planning for the future, understanding the consequences of not paying bills and undertaking legal and financial transactions. [175] As for the timing of the transaction, it was at least a few days after the argument and occurred by the actions of Mr Bampton alone. There was clearly time for him to reflect on his circumstances; as he had done in May 2018. [176] The fact is also that Mr Bampton stayed at the home of Mrs and Mr Vourlides for about two years after the transaction; that is until 23 September 2020 when he went to live in the same house as Larry Bampton’s former wife at Kawana on the Sunshine Coast. In late 2018, Mr Bampton wrote affectionate birthday cards to his daughter, Mrs Vourlides, who at that time was turning 64. [177] I appreciate that there was evidence from Mr Bampton and Mrs Vourlides to the effect that until Mr Bampton left the house in 2020 not everything was harmonious between them. It is unnecessary to detail nor attempt to determine the precise truth of their various assertions. It is sufficient to observe that the conduct to which both refer is not dissimilar to the kind of incidents with which Mr Bampton was involved during the time he was at the retirement village. 10 [2004] QSC 443, [44]. -- 35 of 38 -- 36 [178] In his will made 21 August 2019, where he gave his address as Mountain Creek, Mrs Vourlides, alongside Larry Bampton, were named as executors with each to receive the remaining 10 percent of his residuary estate in equal shares. The remainder was otherwise variously made to the grandchildren and great grandchildren. The will made 12 March 2020 was in similar terms, though it provided that if Larry Bampton did not survive him, his estate and interest in the land at Mountain Creek was to go to his grandson, Hugh Bampton. [179] It was not until the will made 20 January 2021 that Mrs Vourlides was excluded from taking anything from the estate altogether. This will simply nominated Hugh Bampton as the beneficiary of his interest in the Mountain Creek property, and noticeably gave specified amounts, including some very large amounts, to his grandchildren and great-grandchildren. Larry Bampton was merely the recipient of the remaining residuary estate. [180] Each of these wills were prepared by solicitors. [181] In addition, not only did Mrs Vourlides remain a joint executor of the wills made in 2019 and 2020, but Mr Bampton executed a power of attorney which gave Mrs Vourlides a joint power of attorney on 19 August 2019. [182] The action was not commenced until 30 September 2021; a year after Mr Bampton moved out of the house of Mrs and Mr Vourlides and shortly after Mrs Vourlides had commenced proceedings in QCAT with respect to the power of attorney and Mr Bampton’s capacity. Those proceedings, as I mentioned, were commenced after Mrs Vourlides lost touch with Mr Bampton and were based, at least partly, on that fact. [183] None of these matters are consistent with Mr Bampton having felt pressured into giving $300,000 to Mrs Vourlides. [184] These factors also show, in my view, that Mrs Vourlides has discharged the onus of proving 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; the test referred to in Johnson v Buttress.11 11 (1936) 56 CLR, 134-5. -- 36 of 38 -- 37 Consideration of the unconscionability claim [185] Similar factual considerations are relevant to the claim that the transaction should be set aside for unconscionability. [186] There is a threshold consideration in equity and that is whether the disponor is placed at a special disadvantage in relation to the other. In this case it is not suggested that Mr Bampton was at a special disadvantage because of illness, ignorance, inexperience, impaired facilities or financial need.12 The circumstance that it was suggested affect his ability to conserve his own interests was emotional dependence; relying upon Louth v Diprose13 and Bridgewater v Leahy.14 [187] I am unable to accept that Mr Bampton had any emotional dependence upon Mrs Vourlides in the way that might cause this doctrine to operate. Not only was Mr Bampton a strong personality, but I could not find in any of the evidence signs that Mr Bampton depended upon Mrs Vourlides for emotional support. He did not even mention it in his statement. [188] It was submitted that it was unconscionable for Mrs Vourlides to retain the moneys given Mr Bampton’s advanced age and medical condition, his dependence upon Mrs Vourlides as a boarder living at the house of Mrs and Mr Vourlides, that he received no independent advice, that Mrs Vourlides was his paid carer and that Mr Bampton believed that the payment of funds was the only way to ensure that he had a roof over his head. [189] Although Mr Bampton 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 Mrs Vourlides, 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. 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 12 Blomley v Ryan (1956) 99 CLR 362, 415. 13 (1992) 175 CLR 621, 629. 14 (1998) 194 CLR 457, 478. -- 37 of 38 -- 38 significance in the absence of independent advice. Mrs Vourlides 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. [190] In addition, I am unable to accept that Mrs Vourlides took unconscientious advantage of Mr Bampton. I accept the submission made by counsel for Mrs Vourlides that Mrs Vourlides received the cheque knowing that Mr Bampton 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 Mr Bampton into doing something he did not want to do. [191] I do not accept that the retention of the money was in the circumstances unconscionable. [192] 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. Mr Bampton 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. Conclusion [193] The claim is dismissed. [194] I will make orders for the parties to make submissions on costs, unless costs can be otherwise agreed between the parties. -- 38 of 38 --