Awad v Awad

1. [1]

   HIS HONOUR: By a cross-claim filed 24 May 2017 (“the cross-claim”), the cross-claimant Michael Awad (“Michael”) sought, inter alia, a declaration that he had a beneficial one-half interest in the property at Bexley in the State of New South Wales (“the property”) owned by his mother, the first cross-defendant , Nouhad Awad (“Nouhad”).

2. [2]

   At the outset, it should be noted that the parties and witnesses will be referred to by their first names, as was done during the course of the proceedings before the Court, noting that nearly all of the relevant persons have the same surname. The Court adopts that approach with no disrespect intended to the relevant persons.

3. [3]

   Michael’s primary cause of action, as pleaded in the cross-claim, was based upon proprietary estoppel. In summary, Michael’s case was that in 1994 his parents, Tony Awad (“Tony”) and Nouhad, were registered proprietors of the property as joint tenants. At that time, Nouhad had a debt of $28,000 owed for legal costs arising from an unsuccessful workers compensation application by her. A solicitor’s bill was received from G H Healey & Co Solicitors (“G H Healey & Co”) about September 1994 (“the solicitor’s bill”) in which a demand was made for payment within 28 days (“the demand”). That, it was submitted, constituted an “emergency” because Tony and Nouhad were not working; they were pensioners. It was alleged that Tony, in Nouhad’s presence and with her express approval, orally represented to Michael that, if he paid the legal costs and also paid costs of renovating the property, Tony and Nouhad would give Michael a beneficial one-half interest in the property and allow him to reside there during their lifetimes.

4. [4]

   It was contended that Michael was induced by and relied upon that representation or promise (the precise terms of which are discussed below). It was pleaded that he paid the $28,000 legal costs, resided at the property until he and his wife were ejected on 25 January 2017 and took out a $90,000 loan from Arab Bank Australia Ltd (“Arab Bank”) (notwithstanding any contentions as to the amount, the Arab Bank loan will hereinafter be referred to as “the Arab Bank loan”). He used $40,000 of the loaned money to discharge an existing mortgage to Westpac Bank, $50,000 on renovations to the property, paid monthly instalments on the Arab Bank loan and subsequently repaid the full principal and interest remaining under the Arab Bank loan of $81,024. Michael also paid other substantial amounts from time to time to benefit Nouhad and Tony.

5. [5]

   Tony died in 2004 and his interest in the property passed to Nouhad. Since 2004, Nouhad had been suffering from dementia and had headaches and forgetfulness. Since at least 2009 she had been suffering from Alzheimer-type dementia. Michael’s sister and Nouhad’s daughter, Zouha Habib (“Zouha”), is Nouhad’s tutor and has been Nouhad’s enduring guardian and attorney since 23 February 2013.

6. [6]

   Michael’s other siblings, Jim Awad (“Jim”), Joseph Awad (“Joseph”) and Paul Awad (“Paul”), all gave evidence in the proceedings (collectively, “Michael’s brothers”).

7. [7]

   There was no documentary evidence as to the existence of the representation as such, although the parties referred to documentary evidence said to have a bearing upon the resolution of the primary claim including wills made in 2003, 2013 and 2016, respectively (collectively, “the wills”).

RELIEF SOUGHT

1. [8]

   Michael sought the following relief in the cross-claim:

2. [9]

   It should be noted that the relief claimed in the sixth and seventh prayers for relief, namely, relief enabling Michael and his wife, Arze Awad (“Arze”), the second cross-defendant, to reside at the property, were no longer pursued. (It should also be noted “Arze” was also spelt “Arzi” in some documents in the proceedings. The Court will adopt the spelling used in her affidavit).

3. [10]

   Nouhad opposed the cross-claim by her tutor although, as the cross-claimant correctly identified, Zouha had no “direct knowledge of the promise”.

4. [11]

   Michael sought to defer the hearing of the claims in 3 and 4 of the relief claimed until the determination of the primary claims for relief. That approach was opposed. Supplementary written submissions were addressed to that question to which I shall return.

COURSE OF THESE PROCEEDINGS AND RELATED PROCEEDINGS

1. [12]

   Michael lodged a tenancy application on 7 February 2016. On 18 April 2016, the New South Wales Civil and Administrative Tribunal (“NCAT”) ordered that it did not have jurisdiction to determine the application.

2. [13]

   On 14 September 2016, NCAT carried out a review the enduring power of attorney made by Nouhad. Michael’s brothers submitted to NCAT that they supported Zouha continuing to have power of attorney and enduring guardianship for Nouhad. NCAT confirmed the appointment of Zouha as Nouhad’s enduring guardian.

3. [14]

   On 23 September 2016, an amended statement of claim was filed on behalf of Nouhad against Michael and Arze seeking possession of the property (“the amended statement of claim”). The amended statement of claim was served 24 September.

4. [15]

   A notice of motion was filed seeking default judgment. That notice of motion was heard before M Adams J on 17-18 November 2016. Michael was unrepresented and Arze did not appear.

5. [16]

   On 18 November 2016, his Honour ordered, inter alia, the following:

6. [17]

   On 6 December 2016, a writ of possession was issued notifying that Michael and Arze were to vacate the property by 12:00pm on Friday, 13 January 2017.

7. [18]

   On 23 December 2016, Michael lodged a caveat (registered number AM23835) (“the caveat”), over the property.

8. [19]

   On 25 January 2017, Michael and Arze moved from the property.

9. [20]

   On 10 March 2017, the Registrar-General at Land and Property Information served Michael with a Notice of Proposed Lapsing of a Caveat, with respect to the caveat (“the lapsing notice”).

10. [21]

    On 13 March 2017, the cross-claim was signed by Michael (but not filed).

11. [22]

    On 28 March 2017, Michael filed a summons in the Equity Division (proceedings no 2017/94057, hereafter “the Equity proceedings”) claiming, inter alia, an order extending the operation of the caveat until further order of the Court.

12. [23]

    On 30 March 2017, Lindsay J made orders by consent including, inter alia, extending the caveat by consent and that the Equity proceedings be referred to the Registrar to be appointed a date for a court annexed mediation.

13. [24]

    On 17 May 2017, the court annexed mediation took place where a number of issues were settled at that time. However, Michael’s claim for a beneficial interest in the property was not settled.

14. [25]

    Hence, on 24 May 2017, the cross-claim was filed. On 28 August 2017, the defence to the first cross-claim was filed on behalf of Nouhad.

THE PROMISE AS STIPULATED IN MICHAEL’S CASE

1. [26]

   Counsel for Michael, Mr P R Glissan, stated that the relief sought by Michael was based on equitable estoppel and, in that respect, he relied upon a “representation as to [a] future matter, but… in the nature of a promise”.

2. [27]

   Notwithstanding that characterisation, counsel for the cross-claimant tended to employ the word “representation” to describe that which created the expectation relied upon by him which was said to be to his detriment (an approach mirrored by counsel for the first cross-defendant). The better approach, and one more consistent with an action predicated upon equitable estoppel is to refer to a “promise”, being a voluntary promise about a speaker’s future conduct: Equititrust Ltd v Franks (2009) 258 ALR 388; [2009] NSWCA 128 at [73] per Handley AJA. Michael’s case was that there was an unperformed promise which was stipulated by his counsel as, based on his evidence, consisting of the components set out below. I shall hereinafter refer to that promise, so described and stipulated by counsel below, as “the promise”.

3. [28]

   Michael relied upon two formulations of the promise as expressed in Michael’s evidence as discussed below both constituting one promise. The first formulation of the promise is to be found in his affidavit filed 28 December 2016 (“the December affidavit”) (at [29]) and was in the following terms:

4. [29]

   Counsel for the cross-claimant also relied upon Michael’s evidence of, as he put it, a “slightly more detailed formulation” of the promise which Michael included in his affidavit sworn 28 March 2017 (“the March 2017 affidavit”) (at para 8). It should be noted that Michael also swore an affidavit on 13 April 2017 (“the April 2017 affidavit”) in which the promise was expressed in identical terms (at para 10) to the March affidavit. Paragraph 8 of the March affidavit was as follows:

5. [30]

   The promise was said by counsel for the cross-claimant to be constituted by the statement made by Michael’s father. In written submissions, counsel referred to the statement of “the same clear and unequivocal promise or assurance.”

6. [31]

   As mentioned, despite the differences as to the terms of the promise as expressed in the December affidavit and the March 2017 affidavit (or the April 2017 affidavit) above, Michael’s counsel contended that his case was there was only one representation made on a single occurrence. Counsel for Michael also contended that the promise was made by Tony around September 1994 in the presence of Nouhad and with her express approval. Thus, the promise was, it was submitted, as much Nouhad’s as it was Tony’s, and Nouhad was personally – not vicariously – liable. The claim against her is not a derivative from Tony.

7. [32]

   Michael’s case was that there was created an “expectation” by the promise with no precise indication as to when the expectation would be fulfilled. The representation did not depend upon the operation of a will.

8. [33]

   It may be observed, at this juncture, that Michael gave evidence-in-chief and under cross-examination as to the promise that was inconsistent; both as to the circumstances in which the representation was given and as to the contents of the promise. The inconsistencies were also both internal in the sense of the viva voce evidence before this Court being inconsistent, and inconsistent with the stated form of the promise as conveyed by his counsel by reference to his affidavit evidence.

9. [34]

   Further, Michael gave evidence that at a time later to the giving of the promise, Tony indicated that he had given Michael half of the house in the presence of Michael and all of his siblings. This was disputed by Michael’s siblings. I will return to these issues in more detail below.

10. [35]

    Counsel for Michael also contended that Tony and Nouhad were registered proprietors of the family home as joint tenants and that, on Tony’s death, the ownership of the home passed by survivorship to Nouhad. It was contended that Michael’s “legal half-share of the home passed by survivorship to Nouhad but that Nouhad denied the beneficial half-share of the home”. Justice required, it was submitted, that Nouhad be estopped from denying the correctness of the expectations created by the promise in order to prevent Michael from suffering detriment as a result of him having relied upon the promise by paying the legal costs and repaying the Arab Bank loan he had taken out.

11. [36]

    It was further contended by counsel for Michael that the significance of Nouhad's successorship to Tony's legal half-share of the home was that his half-share can be traced into Nouhad's present legal ownership, resulting in there being no impediment to the Court granting relief to Michael by way of proprietary constructive trust, contrary to the position that would have arisen if the home had been sold to a third party purchaser for value without notice of Michael's estoppel-based claim to equitable relief. This issue of successorship will be addressed further below, however, for present purposes, the cross-claimant’s case was that the right under the promise materialised where there was a departure from the promise. The lapsing notice represented such a departure, that is, an action to lapse the caveat in circumstances where there was no present intention to sell the property, but merely a claimed caveatable interest.

12. [37]

    On the other hand, the first cross-defendant contended that, even if Tony made the promise, no personal equity attached to Nouhad as there was no evidence of express approval and agreement as to the promise by her.

LEGAL PRINCIPLES

1. [38]

   The relevant legal principles in relation to equitable estoppel and constructive trusts was recently discussed by Sackar J in Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 (“Zupicic”) at [67]-[75] as follows:

2. [39]

   Counsel for Michael also relied upon Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 (“Waltons Stores”) at 428-429 as follows:

3. [40]

   The passage from Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, referred to in that passage from Sackar J’s judgment in Zupicic, makes clear that the onus of proof rests upon the cross-claimant to prove that he had been induced to rely upon the promise of Tony noting that what attracts the equitable principle is not the promise itself but the expectation that it creates.

4. [41]

   The first cross-defendant emphasised that the alleged promise occurred over 20 years ago and that Tony is now deceased and Nouhad incapacitated. In that event, it was properly emphasised, by reliance upon Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 at 548-549 (per Isaacs J); Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 (per McLelland CJ in Eq) and Evans v Braddock [2015] NSWSC 249 (“Evans”) at [68] (per Hallen J), there was a need for careful scrutiny of the evidence given at the time of the hearing as to conversation said to have occurred with the deceased at such an earlier time..

5. [42]

   In Evans, Hallen J summarised the approach to be taken in cases such as the present one as follows (at [69]-[72]):

6. [43]

   Reference may also be made to Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35]:

Cross-claimant Submissions

1. [44]

   The cross-claimant made six key contentions in support of Michael having established an equitable estoppel and thus being the beneficial owner of a one-half interest in the property:

   1. (1)

      In 1994, Michael expected that Tony and Nouhad would give to him a beneficial one-half interest in the property if he paid legal costs of $28,000, which G H Healey & Co were then demanding Nouhad pay within 28 days, and the costs of renovations to the property (including the installation of a new kitchen and other renovations). Tony and Nouhad were not free to withdraw from that expected relationship (of co-ownership) (“the first contention”).

   2. (2)

      Tony and Nouhad induced Michael to adopt that expectation, by making the promise (“the second contention”).

   3. (3)

      Michael acted in reliance on that expectation by paying the legal costs and the costs of the renovations (utilising the Arab Bank loan of $90,000 from Arab Bank, which he repaid in full, with interest) (“the third contention”).

   4. (4)

      Tony and Nouhad knew or intended Michael to so act (“the fourth contention”).

   5. (5)

      Michael's action will occasion detriment if the expectation is not fulfilled (“the fifth contention”).

   6. (6)

      Following Tony's death and the passing of the property to her by survivorship, Nouhad has failed to act to avoid the detriment by fulfilling the expectation by applying to lapse the Caveat and by defending this cross-claim (“the sixth contention”).

2. [45]

   As to the first two contentions, Michael relied upon the following.

   1. (1)

      Tony and Nouhad were registered proprietors of the property;

   2. (2)

      A $28,000 legal cost liability arose;

   3. (3)

      Tony, in Nouhad’s presence made a promise to Michael that if he paid the legal costs and renovated the property, he would be given half of the house;

   4. (4)

      Michael, in reliance on the promise, paid the legal costs and renovated the property using funds from the Arab Bank loan;

   5. (5)

      Michael made repayments on the Arab Bank loan and subsequently repaid it using a “Total Permanent Disability” payout.

3. [46]

   It was also submitted in reply that Arze’s evidence corroborated Michael’s evidence in respect of the promise. Further, it was contended that both Michael and Arze were truthful and reliable witnesses.

4. [47]

   It was submitted that evidence given by Michael’s siblings that they were not told of the promise has little weight in determining whether the promise did in fact occur.

5. [48]

   It was submitted that the absence of provision for the promise in the 2003 and 2016 wills was not relevant as the promise’s existence was distinct from any testamentary disposition. The same was said of the 2013 will.

6. [49]

   As to the third and fourth contentions, counsel for the cross-claimant put the following submissions:

   1. (1)

      The solicitor’s letter of demand constituted an emergency for Tony and Nouhad. If legal action was brought to recover the $28,000, Tony and Nouhad could lose the house.

   2. (2)

      Further, Tony and Nouhad depended upon Michael to borrow and repay funds in order to repay the legal costs and to renovate the property. By 1994, both Tony and Nouhad were retired pensioners: Tony was aged 67 years, retired and an aged pensioner; and Nouhad was aged 58 years and had stopped work as a result of the work accident in 1990. Meanwhile, Michael was, at that time, employed. He earned $70,000 per annum. Joseph was also approached for help in the matter of paying the $28,000 but he was unable to assist as he had a mortgage of his own at that time.

   3. (3)

      Michael had to consider whether he was going to undertake the expenditure for a long time before committing, indicating a reliance on the promise.

   4. (4)

      The expenditure by Michael was aligned with the terms of the promise. Michael paid the $28,000 legal costs, borrowed $90,000 from Arab Bank to finance the cost of the renovations, made repayments on the Arab Bank loan and subsequently paid off the Arab Bank loan using his Total Permanent Disability payout. As will be discussed below, the documentary evidence relating to the Arab Bank loan only shows that stamp duty was paid on an amount of $50,000. It was the submission of the cross-claimant that this $50,000 amount represented an up-stamping and that the total amount borrowed was therefore $90,000.

7. [50]

   The payment of the legal fees by Michael was evidenced by the affidavit of Arze dated 23 February 2017 (“Arze’s affidavit”), which corroborated Michael’s March 2017 affidavit. Additionally, the oral evidence of Paul corroborated Michael’s oral evidence. (The lack of primary documentation could be attributed to the passage of time in addition to Michael’s 1996 work accident and the fact that Michael lived mostly overseas from 2000-2012.

8. [51]

   The submissions that Michael took out the Arab Bank loan was supported by the Arab Bank Mortgage document, which listed Michael as a customer and the “Land and Property Information New South Wales Historical Search” of 23 December 2016 on the property (“the property title search”) which also listed a mortgage having been granted on 27 September 1994. That was in addition to the consistent evidence of Michael, Paul, Jim and Zouha. It was submitted, however, that Arab Bank records could not be located due to the passage of time.

9. [52]

   That the renovations occurred was supported by the evidence of Michael’s siblings in cross-examination, which will be detailed below.

10. [53]

    The repayment of the Arab Bank loan by Michael was evidenced by the bank statements of Michael displaying a withdrawal of $81,024, a historical title search showing the discharge of a mortgage on 13 May 1998 and the affidavit of Arze dated 23 Feb 2017, which was consistent with Michael’s account, and the consistent oral evidence between Arze, Michael, and Paul.

11. [54]

    Finally, it was submitted that, in this context, the expenditure by Michael was self-evident of reliance upon the promise. In reply, it was argued that the expenditure was much more substantial and was in a completely different nature to Michael’s usual gratuitous expenditure to family members.

12. [55]

    Turning to the fifth contention. In reply, it was submitted that despite Michael living rent-free in the property from 1978-2000, Michael did provide full consideration by paying all recurring household bills and by being very generous with his money towards his parents. Thus, it was submitted, it would be unconscionable to depart from the promise, as the amount expended then (said to be the $28,000 legal fees plus the $90,000 loan) was commensurate to half the value of the property. It was submitted that $90,000 in 1994 was worth $800,000 at the time of proceedings.

13. [56]

    As to the sixth contention, it was agreed by both the cross-claimant and the first cross-defendant that following Tony's death, the property passed to Nouhad by survivorship. It was also not contested that Nouhad failed to act to avoid the detriment by fulfilling the expectation, by applying to lapse the caveat and by defending the cross-claim.

14. [57]

    Michael put various submissions as to the reliability of the evidence given by his siblings. I will return separately to those issues.

15. [58]

    The cross-claimant submitted that the significance of Nouhad's successorship to Tony's legal half-share of the home is that his half-share can be traced into Nouhad's present legal ownership, resulting in there being no impediment to the Court, if so minded, granting relief to Michael by way of proprietary constructive trust, contrary to the position that would have arisen if the home had been sold to a third party purchaser for value without notice of Michael's estoppel-based claim to equitable relief.

16. [59]

    The principal issue, with respect to alternative relief, is whether Michael should be permitted to prosecute his alternative claims after the determination of the primary claim.

17. [60]

    It was submitted that the alternative claim of beneficial co-ownership of the property in such proportions as may be found by the Court, could be made on the basis of a tenancy in common. It was submitted that claims for alternative relief to a constructive trust could be made in these proceedings in light of the following authorities:

    1. (1)

       In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (“Giumelli”), the High Court unanimously decided that relief by way of proprietary constructive trust granted by the Full Court of the Supreme Court of Western Australia, on the facts of that case, exceeded what justice required. Thus, the High Court found relief by way of payment of a money sum should be granted. Accordingly, the High Court set aside the orders of the Full Court below and remitted the matter to a Judge of the Supreme Court to determine a sum to be payable by the appellants to the respondent representing the present value of the unsubdivided lot of land on the appellants' rural property which they had promised to the respondent, "upon such further evidence as that Court may allow", such sum to be then charged upon the whole of the rural property, with interest to be fixed by the Court.

    2. (2)

       In Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ made the following observations and findings:

    3. (3)

       In Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (at [200]), Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

    4. (4)

       In Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44 (at [1]), Gummow, Hayne, Heydon, Kiefel and Bell JJ drew attention to “the cardinal principle of equity that the remedy must he fashioned to fit the nature of the case and the particular facts”.

    5. (5)

       In Sidhu v Van Dyke, a proprietary estoppel case, the High Court dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales that the appellant pay the respondent equitable compensation, the quantum of which was to be determined by a judge at first instance after remittal to the Equity Division.

18. [61]

    It was submitted by the cross-claimant that those authorities showed that alternative claims for relief in cases such as the present are not only made but often need to be determined after further enquiry and hearing.

19. [62]

    It may also be noted, it was submitted, that no further evidence was envisaged by the cross-claimant in order to advance the alternative claims.

First Cross-Defendant Submissions

1. [63]

   The first cross-defendant made three submissions as to why Michael is not entitled to beneficial ownership of a one-half interest in the property:

   1. (1)

      No promise was made to Michael in 1994 (“contention 1”);

   2. (2)

      Even if a promise was made, Michael did not rely on that promise to his detriment (“contention 2”); and

   3. (3)

      It would be unconscionable or unjust for Michael to be given a half share interest in the home, or some other form of equitable relief (“contention 3”).

2. [64]

   As to contention 1, the first cross-defendant advanced the following submissions. First, the first cross-defendant submitted that evidence in support of the promise having been made was not credible and contended that it should be given no weight in light of the following factors:

3. [65]

   The credibility of the evidence will be discussed later in this judgment.

4. [66]

   Secondly, in oral submissions, the first cross-defendant submitted that Tony and Nouhad had full equity of the house and could have drawn the funds themselves. It was contended that in this context, a promise of the type allegedly made to Michael would not have been made.

5. [67]

   As to contention 2, the first cross-defendant relied upon the following submissions. First, the first cross-defendant submitted that “there was no or no sufficient evidence of any reliance on the representation, other than the cross-claimant’s, and in some respects, his wife’s, assertions made in their affidavit evidence and in cross-examination”. The first cross-defendant submitted that there was no contemporaneous evidence of:

   1. (1)

      the solicitor’s invoice;

   2. (2)

      any solicitors being paid in 1994;

   3. (3)

      the details of the renovations undertaken;

   4. (4)

      the cost of those renovations;

   5. (5)

      over what period of time the renovations were undertaken; or

   6. (6)

      a payment to the Arab Bank by the Cross-Claimant of any amounts.

6. [68]

   In relation to the renovations, the first cross-defendant submitted that no evidence was provided in the form of photographs, invoices, quotes or bank statements indicating that amounts in the vicinity of $50,000 were spent by the cross-claimant (using the loaned monies) on those renovations. Further, it was submitted that no dates or details relating to any of the renovations were provided, nor evidence of the value of any particular item of renovation. Finally, it was submitted that the evidence of Jim, Paul, Joseph and Zouha that certain renovations in the house were done did not align with Michael’s evidence about the nature of the renovations done.

7. [69]

   In relation to the Arab Bank loan, the first cross-defendant submitted that “the bank statement says nothing about a money transfer, or that the recipient of the money transfer was Arab Bank”. Additionally, it was submitted that the discharge document was unhelpful. The first cross-defendant submitted that there was no, or no adequate, explanation for the absence of this evidence. Finally, it was contended, in this respect, that the evidence of Joseph, Jim, Paul and Zouha pointed both ways and did not cure those evidentiary defects.

8. [70]

   In relation to repayments on the Arab Bank loan, the first cross-defendant submitted that there was no evidence of repayments made between 1994 and 1998. It was further noted that Michael’s concession that Arze had been paying back the mortgage, was contrary to Michael’s reliance on the promise, supposedly to his detriment

9. [71]

   Secondly, the first cross-defendant submitted that in circumstances where, on Michael’s evidence, he had a history of spending considerable money on his parents, it could not be said that the promise was a contributing cause to Michael promising to pay the legal fees and the renovation fees.

10. [72]

    In this respect, the first cross-defendant noted, with reference to Michael’s evidence, that he:

    1. (1)

       would have done more than what was expected of him to help his parents;

    2. (2)

       paid “all the bills” for his parents;

    3. (3)

       had purchased a number of cars for his father;

    4. (4)

       would describe himself as a “very generous” person and accepted that he had spent a “considerable” amount of money on his parents; and

    5. (5)

       had a good income in or about 1994.

11. [73]

    Thirdly, it was submitted orally that Michael benefitted from the expenditure and, therefore, did not rely on the alleged promise to his detriment. The first cross-defendant pointed to the fact that Michael not only lived at the property, but wanted to impress his wife, who was coming from Lebanon by fixing up the kitchen. That contention was supported by Jim, who gave evidence that Michael said that he wanted to bring his wife to a new kitchen.

12. [74]

    Fourthly, the first cross-defendant submitted that Michael’s subsequent conduct after the promise was inconsistent with a genuine belief in the promise. The first cross-defendant relied on the fact that Michael made no note of the terms of the promise, did not seek a copy of Tony’s Will to confirm that it reflected the promise and did not take any steps to enforce his legal rights between 2004 and 2016. The first cross-defendant, in oral submissions, also relied on the fact that it was not realistic for Michael to believe that his parents were dependant on him to expend on the legal fees and the renovations. In this respect, the first cross-defendant submitted that Tony and Nouhad had full equity of the house and could have drawn the funds themselves.

13. [75]

    Fifthly, the first cross-defendant submitted that the wills, collectively, were inconsistent with Michael’s evidence that the promise was made. Due to Nouhad’s health issues beginning in 2004, it was submitted that Nouhad’s 2003 will was more likely to reflect her genuine intentions than the 2013 and 2016 wills. The 2003 will was inconsistent with the promise. It was submitted that no inferences could be drawn about Zouha not annexing the 2013 will, which she believed to have been executed by her mum without her mum having sufficient capacity or understanding, to her evidence. (I will turn to a further consideration of the wills within the context of a discussion of the evidence later in this judgment).

14. [76]

    Finally, the first cross-defendant submitted that Michael’s credibility had been severely affected for the reasons already outlined which was an issue that extended to evidence that he relied on the alleged promise to his detriment.

15. [77]

    Turning to contention 3, it was submitted by the first cross-defendant that estoppel or other equitable relief would work an injustice. The first cross-defendant pointed to the fact that Michael lived continuously at home from 1978-2000 without paying rent and that there was no evidence provided that substantiating that Michael paid any bills. The first cross-defendant submitted that Michael living rent free for this period was commensurate with his expenditure under the alleged promise. Finally, the first cross-defendant submitted that declaring that Michael has an interest in half the home would be not only significantly disproportionate to the alleged detriment suffered by Michael, but an injustice to Michael’s siblings who have a legitimate interest, namely, in one fifth of the property. It was submitted that no lesser form of equitable relief is otherwise appropriate.

16. [78]

    A substantial submission was put as to the credibility of Michael and Arze. That submission shall be taken into account in later findings in this judgment.

17. [79]

    The first cross-defendant submitted that in order for Nouhad to be affected by the promise given by Tony in 1994, the cross-claimant must establish a personal equity enforceable against Nouhad. With respect to this, the first cross-defendant referred to Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 at [13]-[14], which is now extracted:

18. [80]

    The first cross-defendant submitted that no personal equity was enforceable against Nouhad for the reason that the Court could not be satisfied that the promise took place at all or in the terms alleged, as previously discussed. The first cross-defendant further submitted that, even if Tony made the promise, the Court could not be satisfied that Nouhad expressly approved and agreed with the promise, thereby resulting in a personal equity attaching to Nouhad.

19. [81]

    The first cross-defendant submitted that the cases referred to by the cross-claimant, in this respect, did not establish why, in the circumstances, the cross-claimant should be given an indulgence to prepare supplementary submissions on alternative relief. The first cross-defendant submitted that the cross-claimant failed to explain why he chose not to deal with the issue of alternative relief, either orally or in writing, when he had the opportunity. The first cross-defendant submitted that the fact that the alternative relief sought by the cross-claimant was dependent upon the first cross-defendant’s estoppel case being rejected does not provide a basis for an indulgence to prepare supplementary submissions on alternative relief.

20. [82]

    It was submitted that, in any event, in all the circumstances, for such an indulgence to be granted was inconsistent with the Court’s obligations under ss 56 and 57 of the Civil Procedure Act 2005 (NSW). It was contended that the cross-claimant had ample opportunity to prepare submissions on alternative relief in closing written submissions. It was further contended, that neither an explanation or a sufficient explanation for the cross-claimant’s failure to address those matters had been proffered. The matter was listed for one day for oral closing submissions, and only took half a day. The matter of alternative relief could easily have been addressed orally that day.

21. [83]

    Finally, it was submitted that the first cross-defendant’s case had been legal aid funded. Thus, it was contended that the first cross-defendant would be put to further cost if it were required to engage counsel to prepare supplementary substantive submissions on equitable relief and attend court again in relation to those submissions. Moreover, it was advanced that that course would further protract the course of these proceedings.

Introduction

1. [84]

   The following aspects of this part of the judgment represent a discussion of the factual circumstances which underpin the disposition of the central issues in the proceedings. As earlier mentioned, there was very little documentary record as to any contested factual area apart from the wills and limited evidence as to the mortgages. There was no documentary evidence in relation to important aspects of the matter including the promise itself, proceedings giving rise to the solicitor’s bill, the solicitor’s bill or the renovations.

2. [85]

   What is set out below concerns the factual circumstances bearing upon the cross-claim broadly in chronological order, noting that the evidence leaves undefined, in some respects, the precise order of events. This discussion will broadly traverse three areas:

   1. (1)

      Uncontroversial background facts;

   2. (2)

      Controversial factual areas, which are available to be resolved in this portion of the judgment; and

   3. (3)

      Factual issues where the evidence on the particular topic is discussed without the final disposition of the factual issue because that final resolution depends upon the assessment of a sometimes interlocking set of considerations including credibility issues, which are necessary to consider in order to form an overall conclusion. The classic example is evidence consistent with or otherwise with a promise being made in or around 1994.

The Witnesses

1. [86]

   The following witnesses were called to give evidence in the proceedings:

   1. (1)

      Michael, the cross-claimant, Michael swore five affidavits dated:

   2. (2)

      Arze, Michael’s wife, swore an affidavit dated 23 February 2017 (“Arze’s affidavit”).

   3. (3)

      Jim, Michael’s younger brother and Nouhad’s youngest child, swore an affidavit dated 15 March 2018 (“Jim’s affidavit”).

   4. (4)

      Paul, Michael’s older brother and Nouhad’s second eldest son, swore two affidavits dated:

   5. (5)

      Joseph, Michael’s eldest brother and Nouhad’s eldest son, swore an affidavit dated 15 March 2018 (“Joseph’s affidavit”).

   6. (6)

      Zouha, Michael’s older sister, Nouhad’s tutor and Nouhad’s only daughter and eldest child, swore the following affidavits dated:

2. [87]

   All of the witnesses were required for cross-examination.

An Overarching View of the Factual Background before and after the Alleged Promise

1. [88]

   Tony and Nouhad migrated to Australia from Lebanon in 1963.

2. [89]

   In September 1973, Tony and Nouhad purchased and became registered proprietors of the property as joint tenants. There was no evidence as to the value of the property.

3. [90]

   In or around 1990, Nouhad had an accident at work, which resulted in a workers' compensation application that was unsuccessful (“the unsuccessful application”).

4. [91]

   By September 1994, as earlier set out, both Tony and Nouhad were aged pensioners. Tony was aged 67 years and retired. Nouhad was aged 58 years and had stopped work as a result of the work accident in 1990.

5. [92]

   In 1994, Nouhad received the solicitor’s bill for legal costs of $28,000 as a result of the unsuccessful application. There was no dispute that the $28,000 liability arose. Nonetheless, issues emerged around the solicitor’s bill as follows:

   1. (1)

      Whether the bill contained a demand for payment within 28 days which, if not met, would result in legal action (“the first issue”). This issue seemed to include whether Michael was shown the bill or told by his parents of the amount of the bill;

   2. (2)

      Whether the legal costs (and accompanying demands) placed the property in jeopardy or Nouhad personally in financial jeopardy (“the second issue”);

   3. (3)

      Whether Michael promised to pay the bill (“the third issue”); and

   4. (4)

      Whether Michael did pay the solicitor’s bill (“the fourth issue”).

6. [93]

   These issues will be discussed in detail below.

7. [94]

   Sometime in 1994, Tony, Michael and Jim went to Lebanon. It should be noted that counsel for the cross-claimant stated that the purpose of the trip was “…to look for work, and in that context a plan to renovate the house so it's more attractive for women coming from Lebanon…”.

8. [95]

   The promise was said to have been made around September 1994.

9. [96]

   In September 1994, Michael was in permanent employment with Amcor Paper Ltd as a Supervisor earning about $70,000 per annum.

10. [97]

    At some stage, there was a mortgage on the property to Westpac Bank. The discharge of that mortgage was registered on the title on 27 September 1994. (During the course of viva voce evidence, reference was also made to the refinance, existence and/or knowledge of a previous loan described as “the Westpac loan”. I will return to this at a later juncture in a discussion of the evidence as to “the loans”).

11. [98]

    On the same day, the issue of a mortgage was registered on the title. This mortgage was said to be the Arab Bank loan. The evidence as to the Arab Bank loan will be examined later in the judgment.

12. [99]

    In 1995, Tony, Michael and Jim went to Lebanon again. Michael was married to Arze in Lebanon on 23 September 1995.

13. [100]

    In about February 1996, the wives of Michael and Jim came to Australia. At that time, Tony, Nouhad, Michael, Arze, Jim and Jim’s wife all lived at the property.

14. [101]

    In May 1996, Michael had a serious accident involving him being electrocuted. The accident resulted in him losing some vision for a period of time. As a result of the accident, he could no longer work (in oral submissions counsel for the cross-claimant stated that the accident occurred in May 1995, but this was clearly a mistake). This accident gave rise to a “Total and Permanent Disability Payment” of $149,858.32, which was made to Michael’s Bank Account from Colonial Life on 27 April 1998 (“the superannuation payment”).

15. [102]

    On 28 April 1998, $81,024 was withdrawn from Michael’s bank account. Counsel for Michael submitted that on that day, the Arab Bank loan was discharged by Michael. This fact is contested and will be detailed further below.

16. [103]

    In or around 1998, Michael and Arze moved to an apartment in Hurstville and lived there for about 12 months. This was an apartment that Michael got for Arze’s family when they visited.

17. [104]

    Between 2000 and 2012, Michael lived on and off overseas.

18. [105]

    On about 19 July 2000, Michael stated he took Arze for an overseas holiday and as a thank you to her for standing by him through all his disabilities. On about 20 January 2001, Michael stated that they returned to Australia. In April 2001, they once again moved to Lebanon.

19. [106]

    In 2003, both Tony and Nouhad had wills prepared by Theodore Solomon & Partners, made on 18 August 2003 and 8 October 2003, respectively (“the 2003 wills”). The contents and circumstances of the 2003 wills shall be discussed below.

20. [107]

    In April 2004, Tony died of a heart attack, aged 77. Upon Tony’s death, the property passed to Nouhad by survivorship.

21. [108]

    Nouhad’s health began to decline from 2004, resulting in a diagnosis of Alzheimer's type dementia in 2009.

22. [109]

    On about 31 May 2007, Michael returned to Australia with Arze and they recommenced residing with Nouhad at the property. Paul and his children were living there too. At this time Michael was in receipt of a disability pension and Arze a carer’s pension.

23. [110]

    In November 2007, Michael and Arze went to Lebanon because Arze’s father was dying. He died soon after. They remained in Lebanon until February 2012 when they returned to Australia and resided, once again, with Nouhad at the property, together with Paul and his family.

24. [111]

    In mid-to-late 2012, Paul moved out of the property and Michael and Arze remained. The circumstances surrounding Paul’s move were also contested in these proceedings. It was put on behalf of Nouhad that, due to disputes and disagreements between Paul and Michael (Paul stated that Michael, told him prior to him leaving, “get out of the house. You and your kids can move out.”), there was an agreement for Paul and his family to move out of the property and for Michael and Arze to remain on the basis that Michael and Arze would act as Nouhad’s carers and share all expenses associated with the property. Michael disagreed that the disputes occurred and, therefore, disagreed that the disputes were the reason for the above arrangement taking place.

25. [112]

    On 23 February 2013, Nouhad appointed Zouha to be her attorney and her enduring guardian.

26. [113]

    A will, prepared by H K Husseini & Co Solicitors, was made by Nouhad on 18 March 2013 (“the 2013 will”). The content and circumstances of that will be explored below.

27. [114]

    In August 2015, Nouhad ceased living permanently in the property, and began living with Zouha at her home at Werrington. The circumstances surrounding Nouhad’s move were contested. By Nouhad’s statement of claim it was alleged that Michael advised Zouha that he and Arze were no longer able to care for Nouhad, ejected Nouhad from the property and continued to reside at that property (the latter two allegations were echoed in Nouhad’s defence). In Michael’s defence to the amended statement of claim, he denied that those were the circumstances surrounding Nouhad’s move from the property.

28. [115]

    Between August 2015 and early January 2016, Michael permitted Nouhad to attend the property for 3 days per week.

29. [116]

    It was alleged on behalf of Nouhad, in the amended statement of claim, that around February 2016 Michael changed the locks at the property, informed Zouha that she and Nouhad were no longer permitted on the property (this was mirrored by the defence to the cross-claim) and acted in an abusive and threatening manner when Zouha attempted to access the property. In Michael’s defence to the amended statement of claim, Michael denied those allegations.

30. [117]

    A further will, prepared by Simon Diab & Associates, was made by Nouhad on 24 February 2016 (“the 2016 will”). The 2016 will, together with both 2003 wills and the 2013 will, will be discussed later in the judgment.

31. [118]

    Michael and Arze’s son Charlie was born in July 2016.

32. [119]

    Possession was granted to Nouhad by M Adams J on 18 November 2018.

The Costs Liability: Nature and Resolution

1. [120]

   The evidence of Michael was that around September 1994, there was the demand for the $28,000 costs liability to be paid within 28 days failing which there would be legal action. Michael stated in examination-in-chief:

2. [121]

   Evidence supporting the fact that a letter from G H Healey & Co was received was supported by the evidence of Jim, Paul, Joseph and Zouha, yet Michael was challenged as to his memory in relation to the contents of the letter as follows:

3. [122]

   Michael was initially challenged as to the amount of the solicitor’s bill being $28,000 and as to his parents telling him the amount. Firstly, as to the solicitor’s bill being $28,000, the following was put to Michael:

4. [123]

   Secondly, in relation to being told the amount by his parents, Michael was challenged as follows:

5. [124]

   However, it was later conceded by the first cross-defendant that a $28,000 bill arose.

6. [125]

   As to the bill containing a demand, Michael was challenged in cross-examination as follows:

7. [126]

   Michael’s siblings did not provide evidence-in-chief as to the evidence of the demand. They were not questioned about the issues in cross-examination.

8. [127]

   As mentioned above, it was Michael’s submission that the solicitor’s bill constituted a financial emergency for Tony and Nouhad, and Michael’s evidence that Nouhad had stated “…my Solicitors could make me bankrupt, and then we’ll lose the house”.

9. [128]

   Michael was not directly challenged as to this issue but was challenged as to the content of the promise itself (which will be examined below). Of Michael’s siblings, Paul disputed that Tony and Nouhad would be at risk of losing the home in cross-examination:

10. [129]

    It was not put to Paul that there was a demand contained within the solicitor’s bill.

11. [130]

    The limit of the evidence given by Jim and Zouha in cross-examination was that neither had heard Tony mention that Michael had stopped Nouhad from becoming bankrupt. It was not put to Jim or Zouha that there was a demand contained within the solicitor’s bill.

12. [131]

    Around the time of the alleged letter of demand, Joseph stated that he was asked for help in the matter of paying the $28,000 but could not because he had a mortgage of his own at the time.

13. [132]

    As discussed above, it was Michael’s submission that his promise to pay the solicitor’s bill formed part of the promise.

14. [133]

    Michael was challenged in cross-examination as to this issue:

15. [134]

    Michael’s siblings were cross-examined as to whether Michael had taken out the Arab Bank loan in order to pay, inter alia, the solicitor’s bill. The siblings, save for Joseph (who did not address the issue), did not dispute that the Arab Bank loan was taken out to pay the solicitor’s bill (see [322]).

16. [135]

    As already mentioned, it was Michael’s evidence that he utilised the Arab Bank loan to pay the solicitor’s bill. Michael was challenged in relation to this evidence in cross-examination:

17. [136]

    Michael’s siblings were all cross-examined as to whether they remembered a conversation in which Tony had told them that Michael had paid off the solicitor’s bill, save for Jim. The evidence of Paul and Zouha supported that this conversation occurred whilst Joseph did not directly address the question (see [295] of this judgment). This is in contrast to the evidence of the siblings as to whether any mention was made by Tony as to the promise (see at [237]-[246] below).

18. [137]

    Counsel for Michael contended that it reflected adversely on the credibility of the “provider(s)” of instructions to put propositions to Michael relating to aspects of the solicitor’s bill issues that were not contested on the first cross-defendant’s submissions or on the evidence of Michael’s siblings.

19. [138]

    Counsel did not develop the basis upon which the Court may make a finding on that basis. In any event the analysis of that contention should be considered in two parts.

20. [139]

    First, counsel seemed to suggest that this credit issue might extend to Michael’s siblings, other than Zouha. However, he did not explain how instructions given to counsel, in this sense, might extend to the credibility of those witnesses given that only Zouha had authority to give instructions to act for Nouhad.

21. [140]

    I will momentarily deal with Zouha’s evidence. However, no proper basis has been established to attack the credit of the first cross-defendant’s witnesses on this basis. It may also be mentioned that my observations of these witnesses generally was favourable: their answers were responsive and frank. They were, in my view, truthful and reliable witnesses.

22. [141]

    I turn then to the credit of Zouha, in this respect. The starting point should be to consider the premise of the attack on Zouha’s credit – instructions given which were contrary to the evidence given by the siblings in cross-examination. That requires assessment of each of the solicitor’s bill issues.

23. [142]

    As to the first and second issues, counsel for Michael contended that it had been put to Michael in cross-examination that he was not told by his parents the amount of the legal fees.

24. [143]

    There is some substance to that contention in that questions were raised with Michael as to what he had incorporated in his affidavits in that respect.

25. [144]

    However, counsel for the first cross-defendant was entitled to explore in cross-examination a variety of aspects of Michael’s evidence, in this respect, with a view to, in substance, question whether a demand for $28,000 was made by G H Healey and Co. Thus, Michael was asked whether he was shown the letter by his mother, whether he kept a copy of the letter; whether his memory in relation to the letter was good whether he recalled the payment terms; whether there were any terms advising his mother how to have the legal costs assessed or the legal costs challenged; and whether the costs included the costs in relation to the 1995 appeal.

26. [145]

    Neither Zouha nor the other witnesses for the first cross-defendant were cross-examined on the existence of a demand in the solicitor’s bill (that is, the threat of legal action in default of payment within 28 days).

27. [146]

    However, the premise of challenge to Zouha’s credibility is more tenable in relation to the third and fourth issues. It was put to Michael that he did not promise to and, in fact, did not pay the solicitor’s bill. The evidence of Michael’s siblings was that they had learnt that Michael did, in fact, offer to pay. The proposition put to Michael that he did not promise to pay, and did not pay, his mother’s legal fees is inconsistent with the balance of the evidence given by Michael’s siblings. Zouha stated that she “might have heard” that Michael had taken out a loan to pay Nouhad’s legal fees.

28. [147]

    It may be presumed that instructions were given by Zouha to counsel. It is another matter to conclude that such a fact should result in credit findings against Zouha as a witness by going behind instructions given to counsel. It may be that the cross-examination reflected an uncertainty or doubt held by Zouha. However that does not mean that credit issues do not otherwise arise in relation to Zouha’s evidence. There were unconvincing passages of Zouha’s evidence in which she claimed lost or inadequate memory that reflected on her credit. The passage from her evidence set out at [286] is an example. In contrast, the frank acceptance by the remaining siblings as to the third and fourth issues is to their credit.

29. [148]

    It should also be noted that counsel for Michael cited the proposition put to Michael that he did not make any repayments on the Arab Bank loan as evidencing the lack of credibility of the instructor of the first cross-defendant. Again, in my view, this can only properly, if at all, be connected to Zouha. This will be dealt with below in my discussion of evidence pertaining to the Arab Bank loan.

Evidence as to the Promise

1. [149]

   After requesting assistance from Joseph, it was submitted on behalf of Michael, Tony and Nouhad requested assistance from Michael. Under this heading I will discuss Michael’s direct evidence as to the content and circumstances of the promise. I will also discuss Jim’s evidence, as Michael placed Jim as being present on an occasion when the promise was made, as will be detailed below. I will return to Michael’s evidence of a later conveying by Tony of the promise to other members of the family and the evidence of other family members (excluding Arze) as to the promise under a separate heading, noting that none of them (other than Jim, on Michael’s evidence) were present during the actual making of the promise.

2. [150]

   In the December affidavit, Michael stated:

3. [151]

   As previously mentioned, the second paragraph of that extract of his affidavit was relied upon by counsel as constituting the promise, together, by succession.

4. [152]

   I have earlier set out the relevant aspect of the March 2017 affidavit at [29] above (which, as mentioned, is relevantly in identical terms to the April 2017 affidavit).

5. [153]

   The accounts given in the December affidavit and April 2017 affidavit were consistent in the following ways:

   1. (1)

      First, the substance of the promise, namely, that Michael would be given half of the property by his parents if he paid a debt and renovated the home, remained the same.

   2. (2)

      Secondly, both accounts make reference to Michael being allowed to live in the home until his parents die.

   3. (3)

      Thirdly, the accounts both placed the conversation as occurring at a property.

   4. (4)

      Finally, the structure of the conversation, where Tony makes the initial promise, followed by a supporting comment by Nouhad, is consistent.

6. [154]

   However, there are several inconsistencies present:

   1. (1)

      First, the December affidavit merely references the paying of “this debt”, whereas the March affidavit specifies “Mum’s legal costs to G H Healey”.

   2. (2)

      Secondly, the December affidavit specifies that Tony, Nouhad, Michael and Jim were present, whereas the March affidavit only mentions that Tony, Nouhad and Michael were present.

   3. (3)

      Thirdly, the December affidavit specifies that the conversation took place in the kitchen of the property, whereas the March 2017 affidavit merely states that the conversation took place “at the property”.

   4. (4)

      Fourthly, the December affidavit includes a statement that Michael accepted the offer and stated “we will obtain a loan and I will pay it off”, which is not present in the March 2017 affidavit.

   5. (5)

      Fifthly, the December affidavit made no reference to Nouhad saying that the solicitors could make her bankrupt and that as a result they would lose the house; words which were contained in the March 2017 affidavit.

   6. (6)

      Sixthly, the December affidavit noted that the conversation in which the promise was made was in Arabic, a fact which was omitted in the March 2017 affidavit.

   7. (7)

      Seventhly, the December affidavit contained a conversation which Michael “specifically recalled”, whereas the March 2017 affidavit presented “words to the effect of” the promise.

   8. (8)

      Finally, there were some wording differences between the two affidavits such as Tony’s use of Michael’s first name in the promise.

7. [155]

   However, in the May 2018 affidavit, Michael puts the promise in a different light. He puts the promise as follows:

8. [156]

   The statement of the promise in the May 2018 affidavit conformed to previous affidavits in the following ways:

   1. (1)

      First, all affidavit evidence placed Tony as the person making the promise.

   2. (2)

      Secondly, paying a fee and renovating the house formed part of the Michael’s requirement under the promise in all affidavits.

   3. (3)

      Thirdly, in all cases Tony and Nouhad were the persons stated to be giving Michael the house.

   4. (4)

      Finally, in all cases there was reference to Michael living with Tony and Nouhad until they died, albeit to a different effect in this affidavit.

9. [157]

   However, a large number of inconsistencies arise when comparing the formulation of the promise in the May 2018 affidavit to previous affidavits:

   1. (1)

      First, in this formulation, no details were provided as to the context in which the promise was given, such as the year, the location and the people present.

   2. (2)

      Secondly, it was specified that “the fees of the lawyer” must be paid as opposed to “this debt” in the December affidavit and “the legal costs to G H Healey and Co” in the March and April 2017 affidavits.

   3. (3)

      ]Thirdly, the statement that the home “needs a lot of work” was not stated in any form in previous affidavits.

   4. (4)

      Fourthly, in previous affidavits, it was put by Michael that his parents would “give” him half of the house, whereas in this affidavit, it was stated that his parents would “promise” that half the house was his after they die. In the May 2018 affidavit, half of the house would become his once Tony and Nouhad died, whereas in previous affidavits, it was stated that Tony and Nouhad would “give” Michael half the home after he paid the fees and renovated the home. In previous iterations, living at the property until Tony and Nouhad died was a benefit provided to Michael upon fulfilling his side of the promise. Yet, in the May 2018 affidavit, living with Tony and Nouhad appeared to be a requirement and precondition to fulfilling the promise: “…get married and live with us till we both die, then it's yours”.

10. [158]

    Michael stated that in April 2017 affidavit Nouhad said “words to the effect”:

11. [159]

    The circumstances surrounding that purported statement were not specified, for example to whom the statement was made, where the statement was made or who was present when the statement was made.

12. [160]

    That formulation of the promise is slightly different from those already mentioned. Importantly, in that statement Nouhad stated: “we said he [Michael] should have half the house”. This is slightly different in structure to the previous iterations where Tony makes the initial promise and Nouhad subsequently agrees. The use of the words “want” and “should” in this formulation also suggest that the gifting of the house has not yet occurred. It is not clear from Michael’s accounts in his affidavits whether the house was to be given to Michael upon his parents’ death or upon his payment of the legal fees and completion of the renovations.

13. [161]

    Michael also stated in his February affidavit that in a conversation between Tony, “Arze’s father”, “Arze’s brother Saad”, Arze and Michael in Lebanon in 1995, Tony stated: “the house is half Michael’s”.

14. [162]

    That statement is consistent with the evidence that Michael provided in his December affidavit and the March and April 2017 affidavits, but not his May 2018 affidavit.

15. [163]

    Finally, Michael recounted in his February 2017 affidavit, a conversation in relation to the Arab Bank loan as follows:

16. [164]

    Once again, this conversation is consistent with the evidence that Michael relied upon, save for the reference to bankruptcy which did not appear in his December affidavit.

17. [165]

    Michael did not give evidence about the promise in examination-in-chief.

18. [166]

    In cross-examination, Michael first gave evidence that the entirety of the promise was contained in para 10 of his April 2017 affidavit:

19. [167]

    He stated that the conversation containing the promise went for “At least a couple of hours, because we had a coffee, I had to seriously think.”

20. [168]

    When questioned as to whether the two sentences contained in the March 2017 affidavit was actually a conversation which took a couple of hours, Michael responded:

21. [169]

    As an aside, it should be noted that this statement described that both Michael and his parents agreed to the promise. Yet, only in the December 2016 affidavit does Michael mention that he agreed to the promise. In no other affidavit is there mention of agreement.

22. [170]

    When it was put to Michael that he did not include in his April 2017 affidavit (it was not mentioned in any of Michael’s affidavits) the fact that the conversation took a number of hours, he stated:

23. [171]

    When it was pointed out that this statement was inconsistent with his previous statement that the entirety of the promise was contained in the April 2017 affidavit, Michael stated:

24. [172]

    When further pressed as to whether the entirety of the conversation was not put in his affidavit, he said:

25. [173]

    Michael also stated that his parents were crying when they made the promise, which was not mentioned in any of his affidavits.

26. [174]

    Michael gave evidence that the conversation took “a long while because [he] had to consider 90,000 then, [he] was going to be in debt and committed to the bank for 20 years”. He later included:

27. [175]

    When it was pointed out to Michael that the $90,000 was not mentioned in the April 2017 affidavit (it was not mentioned in any of Michael’s affidavits), Michael conceded that at that stage the $90,000 had not been discussed:

28. [176]

    In relation to the omission of the $90,000 figure, he continued:

29. [177]

    Later in cross-examination, Michael submitted that his memory of the promise was very good:

30. [178]

    He continued:

31. [179]

    Michael also dismissed the possibility that he had reconstructed the memory of the promise:

32. [180]

    Later in cross-examination Michael resiled from the position that his memory was excellent:

33. [181]

    In cross-examination it was also pointed out to Michael that he did not include the month that the promise occurred. It was then put to Michael that he did not remember the month in which the promise occurred, as Michael initially stated that the promise was “Probably around May”. However, after additional questioning, Michael resiled from that position as well:

34. [182]

    Michael also conceded that he did not remember the day or time that the promise took place:

35. [183]

    In relation to where the conversation containing the promise took place, Michael initially stated “On the veranda”. Immediately afterwards he stated “The veranda and kitchen it should be.” Then when it was put to Michael that he did not remember where the conversation took place he stated, “It was on the veranda. I should have put that down”.

36. [184]

    In relation to who was present when the conversation took place, during cross-examination, Michael initially stated “There was me, my mother and father”.

37. [185]

    Contrary to the evidence that the entirety of the conversation was contained in his April 2017 affidavit (and a contention by his counsel to that effect), and contrary to the evidence he had given in relation to the location of the promise and the people present, Michael then stated:

38. [186]

    Michael then confirmed that the promise stated in the December affidavit was a different conversation to that contained in the April 2017 affidavit:

39. [187]

    When it was put to Michael that this was inconsistent with the entirety of the promise being contained in the April 2017 affidavit, Michael returned to the position that there was only one promise:

40. [188]

    The evidence that “it was said to all the siblings and to everyone and the representation was told to everyone” was consistent with the May 2018 affidavit, by which Michael set out Tony’s disclosure of the promise to Michael’s siblings. However, it was inconsistent with Michael’s later evidence in cross-examination, namely, that “the siblings knew dad done a will but no-one knew about the 1994 agreement, counsel. No-one knew when dad and mum were crying.”

41. [189]

    Michael then agreed that the conversation outlined in the December affidavit occurred first, before the conversation in the April 2017 affidavit.

42. [190]

    Michael then gave evidence confirming that there was more than one conversation:

43. [191]

    Of those conversations, Michael stated that the conversation in the kitchen was the main one:

44. [192]

    When it was put to Michael that he was fabricating the evidence in relation to the kitchen conversation being the more important conversation, Michael then stated that the conversation in the kitchen was the conversation outlined in both the December affidavit and the April 2017 affidavit:

45. [193]

    Then, when it was put to Michael that instead of talking about two conversations he was in fact talking about one conversation, he stated that there were, in fact, two conversations:

46. [194]

    Michael then conceded that his previous evidence that the conversation outlined in the April 2017 affidavit occurred on the veranda was incorrect and that this conversation occurred in the kitchen:

47. [195]

    Michael was then questioned as to why he did not include Jim as being present in the April 2017 affidavit. He had initially agreed that Jim was not present:

48. [196]

    In relation to the omission of Jim being present in the April 2017 affidavit, Michael said: “I didn't think it was relevant”.

49. [197]

    It was then put to Michael that he had provided inconsistent accounts as to why the presence of Jim was omitted, to which he stated: “it was an honest mistake”.

50. [198]

    Following this, Michael once again agreed that apart from the date and time of the promise and the presence of Jim, the April 2017 affidavit contained everything important in relation to the promise:

51. [199]

    The cross-examination continued:

52. [200]

    It was then pointed out to Michael that he did not include his agreement to the promise in the April 2017 affidavit:

53. [201]

    It was also pointed out to Michael that “there's no reference in that paragraph to 28,000” or “reference to any detail about the amount of the renovation costs”. Michael responded to those statements in the following manner:

54. [202]

    It was further pointed out that Michael did not reference any conversation between just himself and his wife in relation to the promise. Michael provided inconsistent evidence as to whether he considered it important to tell his wife about the promise. First, he answered as follows:

55. [203]

    However, immediately afterwards, he gave the opposite answer:

56. [204]

    He stated in relation to discussing financial matters with his wife:

57. [205]

    Further it was stated:

58. [206]

    Immediately afterwards, Michael stated the opposite:

59. [207]

    It was then stated in relation to the promise:

60. [208]

    This was contrary to his prior evidence that telling his wife about the promise was “not really” an important matter.

61. [209]

    Michael then conceded that no conversation occurring between just himself and his wife appeared in his affidavits, despite the fact that Michael stated that he and his wife spoke about the promise “in [19]95, and in [19]98”:

62. [210]

    Michael did not provide further evidence relating to the promise in re-examination.

63. [211]

    I will return to my overall observations of Michael as a very unimpressive witness. However, it is appropriate to pause at this juncture to make some observations as to unsatisfactory features of his evidence bearing directly upon the promise.

64. [212]

    Generally speaking, inconsistencies between Michael’s affidavits may be explicable on a number of bases but there exists significant inconsistencies both between the affidavits and his evidence in cross-examination and internally in his viva voce evidence. Some significant examples may be provided out of those illustrated above:

    1. (1)

       Michael’s evidence was inconsistent as to whether there was a single promise, whether the promise was contained entirely in the April 2017 affidavit, where the conversation containing the promise occurred or who was present. In cross-examination, Michael gave evidence for the first time about there being two conversations where the promise was made: one on the veranda, without Jim being present, and another in the kitchen, where Jim was present. Michael gave evidence that the veranda conversation was “small” and came after the “main” conversation in the kitchen, which was inconsistent with his earlier evidence in cross-examination that the conversation outlined in his April 2017 affidavit was the entirety of what he relied on as the promise. Michael’s initial position was that the April 2017 affidavit referred to the conversation on the veranda without Jim present but his later position was that the April 2017 affidavit was referring to kitchen conversation. When cross-examined about why he did not refer to Jim as being present at this conversation, Michael referred to the fact that Jim was not present at the conversation on the veranda after he had just stated to the Court that the conversation referred to in the April 2017 affidavit was referring to the kitchen conversation. Then, when questioned on this inconsistency, Michael said that he had not referred to Jim being present in the April 2017 affidavit because he did not think it was relevant, then, when questioned on that, he said he made a mistake. It may also be noted, in this respect, that despite statements that his memory of the promise was excellent, Michael was unable to recount details as to the circumstances of the promise such as month, day or time of day. I accept the submission of counsel for the first cross-defendant that deviations from Michael’s account are not consistent with a genuine memory of the promise deposed to in the April 2017 affidavit

    2. (2)

       Michael’s evidence in cross-examination that the conversation containing the promise took a couple of hours and would have been 2000 pages long is inconsistent with prior evidence that the entirety of the promise was contained in the April 2017 affidavit (at para 10); the conversation as to “the 1994 agreement”, therein, is only two paragraphs long.

    3. (3)

       Michael’s statement in cross-examination that he had to think about the $90,000 involved to be paid in the promise was inconsistent with evidence that the alleged $90,000 amount had not yet been determined at the time of the promise (and no renovation was being undertaken).

    4. (4)

       Michael provided inconsistent evidence as to whether he considered it important to tell his wife about the promise and whether he would discuss financial matters with his wife. His initial evidence in cross-examination was that in his and his wife’s culture, the man makes financial decisions and the wife would not ask financial questions such as questions relating to a mortgage. This was inconsistent with his later evidence in cross-examination that his wife would ask about “something big”. Michael also concluded in cross-examination that the Arab Bank loan was an important matter to tell his wife about which was inconsistent with his earlier statement in cross examination that it was “not really” an important matter, which was inconsistent again with his initial statement that the Arab Bank loan was an important matter to tell his wife about.

65. [213]

    The final disposition of questions concerning his evidence and further issues of credibility will be held over until the balance of this section of the judgment is completed, although it will be immediately evident that there is substance in the first cross-defendant’s submission that his evidence vacillated in order to accommodate or adjust for apparent difficulties with his account in evidence.

66. [214]

    As mentioned above, Michael referred to Jim being present at a conversation in which the promise was purported to have been made both in his December affidavit and in cross-examination.

67. [215]

    The extent of Jim’s affidavit evidence is contained in the following statement in his affidavit:

68. [216]

    It is not clear whether this conversation is one of the conversations that was referred to by Michael as containing the promise. This conversation is not said to have occurred in Michael or Nouhad’s presence, nor does it specify an exact year or any other circumstances surrounding the conversation. It is plainly inconsistent with the promise but does seem to suggest the existence of a solicitor’s bill and the existence of some renovation.

69. [217]

    Jim was not asked to give evidence in examination-in-chief as to whether a conversation occurred in his presence of the kind described by Michael.

70. [218]

    Notwithstanding the fact that, on Michael’s case, Jim was present at some point during the making of the promise, much of Jim’s cross-examination, with respect to the promise, related to Tony’s later purported disclosure of the promise, which will be discussed below. In relation to direct evidence of the promise, it was not put to Jim in cross-examination that he was present in a conversation in which the promise was made to Michael. Nor was any version of Michael’s accounts put to him including the one in which Jim was said to be present. His evidence at [215] in which he gave evidence of Tony’s statement in the mid-1990’s regarding the need to borrow money to pay off Michael’s debts was not challenged in cross-examination.

71. [219]

    The extent of evidence in cross-examination was as follows:

72. [220]

    It should be noted that Jim expressed difficulty in providing evidence due to what counsel for the first cross-defendant described as extreme anxiety about the process, evidenced through medical reports. Counsel for the first cross-defendant stated:

73. [221]

    Jim was cross-examined and was required, on one occasion, to leave the witness box to re-gather his composure during cross-examination. It was not submitted that this course was taken to be evasive of questioning put to him. My observation of Jim was that he did suffer anxiety in the witness box but I do not consider that it reflected adversely upon his reliability. His answers were responsive and he appeared to give his evidence frankly.

Evidence of Any Recounting of the Promise by Tony after the Purported Promise

1. [222]

   This evidence principally concerns statements attributed to Tony which Michael and Arze said were made some time after the promise was made. As there is no particular time dimension as to when it was that the statements were said to be made other than that they post-dated the making of the alleged promise itself (“the announcement”). It is convenient to deal with the evidence at this juncture provided that the same caveat is applied, namely, that it is appropriate to consider all the evidence before finally passing upon this evidence.

2. [223]

   In the May 2018 affidavit, Michael stated that Tony subsequently disclosed the promise to Michael’s siblings. The relevant passages of that affidavit are extracted below:

3. [224]

   The main inconsistency between those statements and the other affidavit evidence of Michael is that, in those statements, Tony was attributed as having gifted the house to Michael without any mention of Nouhad being present or assenting to the promise, save for a reference at para 4 of the May 2018 affidavit, which stated Nouhad said: “we might give him the whole house”.

4. [225]

   Arze first gave evidence as to the promise in her affidavit. This evidence constituted a conversation that had occurred “in about 1998”. In a conversation between Tony, Nouhad, Michael and Arze, Arze stated that Tony said:

5. [226]

   That statement is consistent with Michael’s February affidavit in relation to the same conversation, in that it uses almost identical words. Secondly, this statement is consistent with other evidence in that the payment of fees and the renovation of the house was said to form the basis of the promise. Yet, several inconsistencies between the statement and Michael’s evidence are present. First, a small difference was that the fees to be paid are labelled in this evidence as “court fees”, distinct from lawyer fees or fees owed to a legal practice. Secondly, the statement outlines that Tony and Nouhad promised Michael “you could all stay with us”, which conflicted with Michael’s April 2018 affidavit which, as earlier mentioned, stated that Michael’s living with Tony and Nouhad was a requirement under the promise.

6. [227]

   In cross-examination, Arze stated that the 1998 conversation outlined in her affidavit was not the first time that she had heard about the promise:

7. [228]

   When it was pointed out to her that she had not included any prior conversations in her affidavit regarding the promise, she disagreed, stating “Yes. I've been told from my parents-in-law.” This conversation did not appear in the affidavit.

8. [229]

   Arze also initially stated that there was a two year gap between the meeting with the solicitor and the conversation containing the promise:

9. [230]

   Yet, in her affidavit she stated that the solicitor’s meeting and the conversation occurred, not two years apart, but both in about 1998:

10. [231]

    When that inconsistency was raised with Arze she agreed that there was a meeting with solicitor in 1998.

11. [232]

    There is a particularly unsatisfactory part to Arze’s evidence as to whether she was likely to be engaged in a discussion about financial matters with her husband.

12. [233]

    In cross-examination, Arze stated that she was not involved in financial matters:

13. [234]

    This aligned with the evidence given in her affidavit:

14. [235]

    As will be discussed below, this evidence was inconsistent with conversations that she was said to have had with both Michael and Tony, regarding the financial matter of the mortgage.

15. [236]

    She was challenged in cross-examination as to her knowledge of the financial affairs of her husband or family and gave the following unsatisfactory explanation:

16. [237]

    Jim gave the following evidence, with respect to the announcement, in his affidavit:

17. [238]

    This was consistent to his evidence in cross-examination:

18. [239]

    Joseph gave the following evidence, with respect to the announcement, in his affidavit:

19. [240]

    This was consistent with his evidence in cross-examination:

20. [241]

    Paul gave the following evidence, with respect to the announcement, in his March affidavit:

21. [242]

    This was consistent with his evidence in cross-examination:

22. [243]

    Zouha gave the following evidence with respect to the announcement in her 16 March 2018 affidavit:

23. [244]

    This was consistent with her evidence in cross-examination:

24. [245]

    And later:

25. [246]

    Thus the evidence of Michael’s siblings is consistent under cross-examination in denying that the announcement occurred. However, other issues were raised as to their credibility and, hence, the final assessment of this issue can await the consideration of those issues.

The Loans

1. [247]

   As earlier mentioned, a historical search of the property’s title occurred on 23 December 2016. The property title search showed, inter alia, the following:

   1. (1)

      a discharge of a mortgage recorded on 27 September 1994 (“the 1994 discharge”);

   2. (2)

      the issue of a mortgage recorded on 27 September 1994 (“the 1994 mortgage”); and

   3. (3)

      another discharge of a mortgage recorded on 13 May 1998 (“the 1998 discharge”).

2. [248]

   The 1994 discharge was said to be evidenced by the document relating to the discharge of a mortgage lodged by Sattout and Associates and executed on 12 September 1994. The mortgagee of that mortgage was Westpac Banking Corporation and the mortgagors were Tony and Nouhad.

3. [249]

   The 1994 mortgage was said to be the Arab Bank loan. The 1994 mortgage was evidenced by a mortgage document that was lodged by Sattout and Associates on 22 September 1994 (“the mortgage document”). The mortgagee of the 1994 mortgage was Arab Bank and the mortgagors were Tony and Nouhad. The mortgage document showed that stamp duty was paid on an amount of $50,000. The mortgage document stated the provisions of Annexure A and Memorandum number E125742 filed in the Land Titles Office were incorporated in the mortgage. Annexure A stated, inter alia:

4. [250]

   Paragraph 3 of the Schedule to Annexure A of the mortgage document stated:

5. [251]

   The 1998 discharge was said to be the discharge of the Arab Bank loan. There was no primary documentary evidence relating to this discharge, save for the property title search. The cross-claimant also relied upon page 2 of statement number 152 of a “Classic Account Statement” (“the bank statement”) for the period 19 March to 19 June 1998 for a bank account that belonged to Michael, which showed a withdrawal of $81,024 on 28 April 1998. It was submitted by the cross-claimant that this amount was used in its entirety to discharge the Arab Bank loan.

6. [252]

   The evidence provided by Michael and his siblings in relation to the 1994 discharge and the 1994 mortgage will now be discussed. Evidence in relation to the 1998 discharge will be set out under a separate heading below.

7. [253]

   This section of the judgment will fix upon whether a loan was, in fact, taken out with Arab Bank, the amount of that loan and discharge of the same, as well as the discharge of the previous mortgage. Some of the evidence will traverse the question of what the alleged loan money was spent on but that question will be fully considered under the next heading.

8. [254]

   Michael gave the following evidence in the December affidavit:

9. [255]

   In the February affidavit, Michael swore that in 1998 a conversation took place between himself, Arze, Nouhad and Tony in relation to the payout from Colonial Life that Michael was to receive. That conversation referenced the Arab Bank loan as follows:

10. [256]

    The evidence given in relation to the Arab Bank loan in both the March and April 2017 affidavits were in identical terms. Michael stated, “I paid Mum’s legal costs of $28,000.00, borrowed (with Mum and Dad) $90,000 from Arab Bank under a mortgage (“the Mortgage”) secured on the property to refinance the existing mortgage debt…and over time continued to repay the loan of $90,000 and in full, with interest”.

11. [257]

    Finally, in his May 2018 affidavit, Michael gave evidence that Tony stated in the presence of Michael and his siblings, “Michael has taken out a loan to pay Mum’s legal fees and to renovate the house” (see [223] of this judgment, although the evidence generally concerned Tony providing information to Michael’s siblings as to the promise: evidence I will later reject). No further detail in relation to the Arab Bank loan was provided in this affidavit.

12. [258]

    Michael’s affidavit evidence, set out above, is consistent in maintaining that a loan was taken out, but some inconsistencies are apparent in the details of the Arab Bank loan between affidavits. Firstly, Michael seems to display a degree of uncertainty as to the exact amount of the Arab Bank loan, specifically, whether $50,000 or $90,000 was borrowed. In the December, February, March 2017 and April 2017 affidavits, Michael stated that $90,000 was borrowed, however, in the December affidavit, Michael also references that stamp duty was only paid on $50,000 and that extra borrowings possibly occurred on top of the $50,000 borrowing. This statement also raises an inconsistency of whether there was one single borrowing of $90,000, one single borrowing of $50,000, or multiple borrowings. Michael’s affidavit evidence does not clarify that point. Finally, there appears to be an inconsistency as to who precisely took out the Arab Bank loan. Michael’s evidence in the December affidavit is that that he and his father organised the Arab Bank loan, which is inconsistent with evidence provided in the March and April 2017 affidavits that the borrowing was undertaken by Michael, Tony and Nouhad.

13. [259]

    Michael did not give evidence about the mortgage in examination-in-chief.

14. [260]

    In cross-examination, Michael firstly stated that the loaned amount from the Arab Bank was $90,000:

15. [261]

    Immediately afterwards, Michael seems to resile from this position, stating that $50,000 was borrowed from the Arab Bank, but that $90,000 was borrowed in total:

16. [262]

    However, Michael also maintained that there was only one loan: “there was one promise and one loan made”.

17. [263]

    When it was pointed out to Michael that there was no reference to a $90,000 loan in the documentary evidence, Michael agreed, but maintained that $90,000 was borrowed:

18. [264]

    The deficiencies of Michael’s evidence as to the $90,000 loan can be summarised as follows:

    1. (1)

       Michael gave inconsistent evidence as to whether $50,000 was borrowed from Arab Bank or whether $90,000 was borrowed and as to whether the Arab Bank loan was a single borrowing or multiple borrowings. In cross-examination, Michael’s initial confirmation that the borrowed amount from Arab bank was $90,000 conflicted with his statement that he “brought proof” of a $50,000 Arab Bank loan.

    2. (2)

       Michael’s evidence that he knew that the figure borrowed was $90,000 because he knew that Arze had been paying it off for two and a half years was firstly inconsistent with all other evidence he provided that he paid back the Arab Bank loan (for example in cross-examination he stated “why in the hell would I have been paying it out for three years”; see also below at [323] where Michael states that he was paying off the Arab Bank loan until the superannuation payment). That evidence also needs to be seen in the light of Arze’s evidence. In her affidavit she does not depose to having any knowledge of the Arab Bank loan until 1998 (years after the repayments were said to have been made by her or by Michael). When challenged as to whether that was the first time she discussed the Arab Bank loan she stated that she did have knowledge prior to that time (see example at [227] of this judgment). That prior knowledge, however, needs to be seen in the context of her evidence that she did not contribute to discussions of financial matters with Michael which itself was inconsistent with her having discussed and made repayments on the Arab Bank loan in accordance with Michael’s evidence (even though that evidence too was the subject of prevarication).

19. [265]

    Arze gave evidence in her February 2017 affidavit that in a 1998 conversation between herself, Michael, Tony and Nouhad, in relation to Michael receiving around $130,000, the following was stated in relation to the Arab Bank loan, among other things:

20. [266]

    Arze did not provide evidence in relation to the mortgage in examination-in-chief.

21. [267]

    In cross-examination, Arze stated:

22. [268]

    As already mentioned, Jim, in his affidavit, stated:

23. [269]

    However, Jim provided no further detail as to this borrowing, nor did he clarify what “Michael’s debt” was.

24. [270]

    Jim did not provide evidence in relation to the mortgage in examination-in-chief.

25. [271]

    The evidence of Jim in cross-examination was that money was borrowed from the Arab Bank. He stated:

26. [272]

    Jim stated that he was unaware of details relating to the discharge of a previous loan:

27. [273]

    Jim provided no further details in this respect.

28. [274]

    Joseph did not refer to the 1994 discharge, the 1994 mortgage or the 1998 discharge in his affidavit evidence, nor did he give evidence in examination-in-chief.

29. [275]

    In cross-examination, Joseph stated that a loan was taken out with the Arab Bank:

30. [276]

    His evidence was that the Arab Bank loan was taken out to assist Michael and for Michael to assist his parents:

31. [277]

    He then added further detail as to the Arab Bank loan:

32. [278]

    He later gave evidence confirming his recollection as to the value of the Arab Bank loan and the existence of a previous loan:

33. [279]

    He later also denied having heard that the figure was $90,000:

34. [280]

    Paul did not refer to the 1994 discharge, the 1994 mortgage or the 1998 discharge in his affidavit evidence, nor did he give evidence in examination-in-chief.

35. [281]

    In cross-examination, Paul stated that he remembered discussion occurring in relation to the Arab Bank loan:

36. [282]

    That was the extent of Paul’s evidence in that regard.

37. [283]

    Zouha did not refer to the 1994 mortgage in her affidavit evidence, nor did she give evidence in examination-in-chief.

38. [284]

    In cross-examination, her evidence was that she recalled hearing about the borrowing from Arab Bank but not any further details about it. She stated:

39. [285]

    She later stated that she might have heard a conversation in relation to Michael having taken out the Arab Bank loan:

40. [286]

    Zouha also stated that she might have heard something about Michael paying back the Arab Bank loan using his superannuation payment:

41. [287]

    Zouha could not recall but could not deny that Tony had made a statement to the effect that Michael had paid off the Arab Bank loan:

42. [288]

    In summary, the evidence of Michael’s siblings confirms that a loan was taken out with the Arab Bank. Jim and Joseph expressly confirmed this fact in cross-examination, whilst Paul and Zouha confirmed that there was discussion about the Arab Bank loan.

43. [289]

    The siblings’ evidence was not consistent with $90,000 having been borrowed from the Arab Bank. Jim was not questioned as to the amount of the Arab Bank loan. Joseph stated that the amount was not $90,000 but rather up to $50,000. Neither Paul nor Zouha were questioned as to the amount of the Arab Bank loan.

44. [290]

    The siblings’ evidence cast no light as to whether the Arab Bank loan refinanced a previous loan to Westpac bank, or whether there was a previous bank loan. Jim denied hearing anything in respect of either issue. Joseph only recalled a previous loan and was not questioned as to whether a refinancing occurred. Neither Paul nor Zouha recalled discussion in relation to paying out or refinancing of the Westpac loan.

What was the Arab Bank loan spent on?

1. [291]

   As mentioned above counsel for Michael stated in the cross-claimant’s written “brief outline of [opening] submissions” that Michael’s evidence was that “in 1994 he paid Nouhad’s legal costs of $28,000 to G H Healey & Co and then borrowed $90,000 from Arab Bank ([“]Arab Bank’s loan”), secured by its Mortgage on the property, $40,000 of which was applied to discharge an existing mortgage to Westpac Bank, and the balance of $50,000 to renovate the property”.

2. [292]

   However, in closing oral submissions he stated “$90,000 was used to pay $28,000 for the legal costs, [$]50,000 approximately for the renovations, so those two figures total [$]78,000, and another [$]12,000, it seems, went on paying for two weddings and some jewellery for the mother”.

3. [293]

   Michael’s evidence was not consistent with either of those statements advanced by counsel. Michael stated in his December affidavit that “once the loaned moneys were drawn down”, $28,000 went towards meeting the payment of Nouhad’s legal fees, $40,000 to $50,000 went towards renovations of the property, the purchase of two new bedroom suites, a fridge and other electrical appliances, $8,000 went towards Nouhad purchasing jewellery and the remaining $12,000 on a trip to Lebanon.

4. [294]

   The central inconsistencies between those accounts are threefold:

   1. (1)

      First, inconsistency exists as to whether the solicitor’s bill was paid prior to the Arab Bank loan being taken out, or subsequently using the money from the Arab Bank loan.

   2. (2)

      Secondly, there is an inconsistency as to whether the Arab Bank loan was used to discharge a previous loan to Westpac Bank.

   3. (3)

      Finally, there is an inconsistency as to whether the Arab Bank loan money was expended on the weddings, Nouhad’s jewellery and the trip to Lebanon and, if so, the relevant amount expended.

5. [295]

   The preponderance of the evidence was that Michael paid the solicitor’s bill. Firstly, Paul’s evidence supported Michael’s payment of the $28,000 in legal costs. Paul agreed in cross-examination that Michael “came to the rescue” in respect of the legal costs. Paul also agreed in cross-examination that there were occasions where Tony had said that Michael had paid off Nouhad’s legal bill. Further, Zouha said that she “might have heard” Tony say, "Michael's taken out a loan to pay Mum's legal fees and to renovate the house”.

6. [296]

   The evidence supported the conclusion that Michael did expend on renovations to the Bexley home. However, the evidence is inconclusive as to how much was spent on the renovations.

7. [297]

   The evidence given by Michael in his December affidavit as to these questions has been set out above (see [293]). The evidence provided in that affidavit that around $40,000 to $50,000 was spent on renovations is the only evidence relating to the amount of the expenditure. No evidence was given by Michael in his evidence-in-chief. In cross-examination, the extent of Michael’s evidence was as follows: “So I paid all that money to renovate, new kitchen, new bathroom, new carpet, new tiles, new gutters, new fence”.

8. [298]

   Michael was not cross-examined as to whether any of the renovations were performed under insurance, although some of his siblings gave evidence about that matter.

9. [299]

   Prior to turning to the individual evidence of Michael’s siblings, in relation to the renovations, it is useful to briefly summarise the relevant evidence of the siblings in that respect:

   1. (1)

      Michael’s siblings provided consensus that the kitchen of the property was either renovated (Joseph and Zouha) or that a new kitchen was put in (Jim and Paul).

   2. (2)

      As to the bathroom, the siblings were to a large extent consistent in stating that renovations occurred under an insurance claim. Jim noted, in that respect, that a leak was fixed under insurance and, similarly, Paul and Joseph both stated that re-tiling occurred under insurance due to leaking. Zouha, in relation to the same, was unable to recall.

   3. (3)

      The evidence of Michael’s siblings was also mostly consistently in contending that a carpet was installed prior to the Arab Bank loan. The only contrary evidence was that of Zouha; who stated that the carpet was put in the year before the 1995 trip to Lebanon.

   4. (4)

      The sibling’s evidence was not uniform as to painting of the property occurring. Paul and Joseph agreed that painting occurred but did not attribute the painting to Michael. Jim denied that the painting occurred and Zouha could not recall.

   5. (5)

      None of the siblings agreed that fencing was put in. Of Michael’s siblings, only Paul agreed that new lights were installed.

10. [300]

    The specific evidence of the siblings in relation to the renovations will now be set out.

11. [301]

    In cross-examination, Jim gave evidence that between the time that the Arab Bank loan was taken out (in 1994) and early 2016, a number of renovations to the property were undertaken.

12. [302]

    First, Jim stated that there was a new kitchen:

13. [303]

    Secondly, in relation to the bathroom being renovated, Jim’s evidence was that a leak of water was fixed by insurance, but nothing further was undertaken:

14. [304]

    Thirdly, Jim stated that a new carpet was put in but that it was put in by his parents. His evidence was that he thought the carpet was put in before the Arab bank loan:

15. [305]

    Jim stated that painting did not occur:

16. [306]

    Jim did not respond as to whether new fencing was installed:

17. [307]

    Paul also gave evidence in respect of the renovations. In cross-examination, in relation to renovations performed on the kitchen, he stated:

18. [308]

    In relation to the bathroom, Paul stated:

19. [309]

    He also accepted the following:

    1. (1)

       that a new carpet was put in, but stated that it was his father that put it in;

    2. (2)

       that some repainting of the house occurred; and

    3. (3)

       that a chandelier was installed.

20. [310]

    He did not accept, however, that fencing was installed or renovated.

21. [311]

    Turning to the evidence of Zouha. She agreed that in 1994 there was a different coloured kitchen:

22. [312]

    She could not say whether renovations to the bathroom took place, despite having visited the house at the relevant times:

23. [313]

    She stated that she remembered a new carpet having been put down:

24. [314]

    However, she could not recall whether painting, fencing or lighting was put in.

25. [315]

    Finally, Joseph gave evidence in relation to the renovations in cross-examination. First, he agreed that the kitchen was renovated.

26. [316]

    Nextly, Joseph stated that the bathroom was retiled but indicated that Michael was not responsible:

27. [317]

    In terms of the repainting and the instalment of the carpet, Joseph stated that repainting occurred but that the installation of the carpet was well before the relevant time:

28. [318]

    Joseph could not recall if fencing was put in.

29. [319]

    In his affidavit, Joseph also gave evidence that later renovations were performed on the property. He stated:

30. [320]

    Joseph was not cross-examined as to those later renovations to the property. However, he did mention that Michael furnished the unit that he was renting:

31. [321]

    Michael’s siblings also gave evidence in cross-examination as to whether a neighbour of the property was involved in the renovations. The highest that this evidence went was that the neighbour was involved in providing a quote. There was no suggestion that the builder performed any of the renovations. There were no receipts as to the renovation.

32. [322]

    In relation to what the Arab Bank loan money was expended on, the evidence of Michael’s siblings in cross-examination was as follows. Jim mentioned that he learnt that the Arab Bank loan was to pay Michael’s debt, the solicitor’s bill, the weddings of Jim and Michael and the kitchen renovations. This was mostly consistent with Joseph’s evidence that the Arab Bank loan was to help Michael get married, to stabilise Michael financially and to renovate the kitchen (Joseph did not mention the solicitor’s bill, as Jim did). Paul and Zouha’s evidence differed. Paul agreed that the borrowing was to pay the legal costs and to renovate the house. Zouha stated that she might have heard that the Arab Bank loan was to pay the legal costs and to renovate the house.

Repayment and Discharge of the Arab Bank loan

1. [323]

   The relevant evidence of Michael in the December affidavit, in this respect, was as follows:

2. [324]

   In the February affidavit, he did not refer to the repayment and discharge of the Arab Bank loan save for referring to the conversation which has been outlined above at [163].

3. [325]

   In the March 2017 affidavit, Michael gave the following evidence: “over time [I] continued to repay the loan of $90,000 and in full, with interest”.

4. [326]

   In the April 2017 affidavit, Michael added:

5. [327]

   In the May 2018 affidavit, Michael gave evidence of a later statement that Tony made to all of Michael’s siblings in Michael’s presence. This statement by Tony was: “Your brother has paid off the loan…”.

6. [328]

   The affidavit evidence of Michael, in this respect, also contain some small inconsistencies, set out below:

   1. (1)

      Firstly, the amount of the payment from Colonial life was stated to be $130,000 in the December and February affidavits, respectively, but $149,858.32 in the April 2017 affidavit.

   2. (2)

      Secondly, the superannuation payment was said to be received “about May 1998” in the December affidavit, yet in the April 2017 affidavit, Michael stated that the date was 27 April 1998 (27 April 1998 is consistent with the bank statement described at [251] of this judgment).

7. [329]

   In cross-examination, Michael was firstly challenged as to the inconsistency of the superannuation payment amount. He conceded that the amount was not $130,000:

8. [330]

   In cross-examination, Michael was also challenged as to whether he did in fact transfer the $81,024 to the Arab Bank to discharge the Arab Bank loan:

9. [331]

   Michael also gave evidence in cross-examination that Arze was paying back the Arab Bank loan, which was inconsistent with his prior evidence that he was paying back the Arab Bank loan. He stated:

10. [332]

    This evidence supports the conclusion that the proposition put to Michael in relation to repayment of the Arab bank loan, as set out at [148] of this judgment, was, in fact, properly put and did not reflect poorly on the credibility of the first cross-defendant; as Michael had given inconsistent evidence in relation to whether he or Arze made repayments on the Arab Bank loan.

11. [333]

    The extent of Arze’s affidavit evidence was that she “became aware that Michael was going to receive an amount of about $130,000”. This is in addition to the statement said to have been made by Tony around 1998 which has been set out at [265] of this judgment.

12. [334]

    In cross-examination, Arze’s evidence in relation to the discharge of the Arab Bank loan was brief. The limit of her evidence was as follows: “That's why my husband got the loan and paid them and saved the house to be sold. That's why”.

13. [335]

    Jim did not provide evidence in relation to the discharge in his affidavit.

14. [336]

    In cross-examination, Jim agreed that Michael had told him that he was paying off the Arab Bank loan:

15. [337]

    However, Jim disagreed that Tony had made a statement to the effect that Michael had paid off the Arab Bank loan:

16. [338]

    Joseph did not provide evidence in relation to the discharge in his affidavit.

17. [339]

    In support of Michael having discharged that Arab Bank loan, Joseph gave evidence that he heard that Michael used some of a superannuation payment of about $150,000 that Michael received in 1998 to repay the Arab Bank loan:

18. [340]

    Paul did not provide evidence in relation to the discharge in his March affidavit.

19. [341]

    In cross-examination, Paul agreed that he had been told that Michael was paying off the Arab Bank loan and that he repaid the loan in full:

20. [342]

    Yet the amount that was allegedly repaid is unable to be firmly determined.

21. [343]

    Zouha did not provide evidence in relation to the discharge in either of her March 2018 affidavits.

22. [344]

    In cross-examination (see the evidence set out above at [286]), she could not recall the exact details of the superannuation payment. Nor could she recall what Michael did with the money from that payment.

The Wills

1. [345]

   This section of the judgment concerns the evidence in relation to the wills. As previously mentioned, there are four wills relevant to the factual background and disposition of this matter. By way of summary, and with necessary repetition, they are as follows:

   1. (1)

      The 2003 wills – two individual wills made by Tony and Nouhad, respectively, in 2003 (both prepared by Theodore Solomon & Partners);

   2. (2)

      The 2013 will – the second will made by Nouhad on 18 March 2013 (prepared by H K Husseini & Co Solicitors); and

   3. (3)

      The 2016 will – the third will made by Nouhad on 24 February 2016 (prepared by Simon Diab & Associates).

2. [346]

   The 2003 wills were structured similarly. Each will had the effect of leaving the entire estate to the other spouse or, in the case that the other spouse predeceased the testator/testatrix, splitting the estate equally between Joseph, Paul, Zouha, Michael and Jim.

3. [347]

   Zouha stated that Tony’s will was held at the Rockdale branch of Westpac Bank and that she had requested to see it in mid-2016.

4. [348]

   Joseph, in his affidavit, stated:

5. [349]

   Joseph was crossed-examined in relation to that conversation deposed in his affidavit, in particular, with respect to the following:

   1. (1)

      the precise time at which the conversation took place;

   2. (2)

      the contents of the conversation;

   3. (3)

      whether he saw a copy of the will at that time;

   4. (4)

      whether the will was the only will made by Tony;

   5. (5)

      whether he was told that his parents were joint tenants of the property;

   6. (6)

      whether he knew that survivorship occurs in the absence of a will; and

   7. (7)

      whether he still maintained that the conversation took place;

6. [350]

   As to (1), Joseph initially he stated that the conversation occurred in May or June 2003:

7. [351]

   When it was pointed out to him that the will was dated 18 August 2003, he gave the following evidence:

8. [352]

   As to (2), he confirmed that his account in the affidavit was correct:

9. [353]

   As to (3), (4) and (5), Joseph simply agreed.

10. [354]

    As to (6), he did not know that survivorship occurred in the absence of a will.

11. [355]

    As to (7), he responded “I believe so”.

12. [356]

    The 2013 will was introduced late in proceedings and was contained in the affidavit of the first cross-defendant’s solicitor Michael Patrick Rumore sworn 30 December 2016. The 2013 will, in effect, left half of Nouhad’s estate to Michael, with the other half to be split equally between the remainder of Nouhad’s children.

13. [357]

    Zouha raised concerns over the circumstances in which the 2013 will was made in re-examination. She gave evidence that she, as Nouhad’s power of attorney, was not contacted or notified about the making of the 2013 will and that Nouhad did not understand the 2013 will that she made. Zouha gave evidence that this was due to the fact that Nouhad was illiterate, but the evidence is also unsurprising in light of the aforementioned fact that Nouhad had been suffering from dementia from 2009 at the latest. Zouha’s evidence, in respect of the 2013, will was as follows:

14. [358]

    Zouha continued:

15. [359]

    Zouha was cross-examined as to why she did not annex the 2013 will to her 14 May 2018 affidavit, in circumstances where she did annex the 2003 and 2016 wills. Zouha admitted in cross-examination that she first saw a copy of the 2013 will in early 2016. She then obtained a copy of that will and provided it to her mother's previous solicitor, Mr Rumore, who annexed a copy to his affidavit of 30 December 2016, which was read by Garling J on an urgent hearing the day of an application by Michael and Arze to stay a Writ of Possession of the property, which Zouha attended. Finally, Zouha twice conceded that she could not explain why she didn't annexe a copy of that will to her affidavit of 14 May 2018.

16. [360]

    The cross-claimant submitted that Zouha’s failure to do so was selective and not bona fide, and adversely affected her credibility and reliability as a provider of instructions. She was cross-examined as follows:

17. [361]

    The effect of the 2016 will was that Nouhad’s estate would be divided equally between Michael, Joseph, Paul, Jimmy and Zouha, with Zouha being the sole executrix and trustee. The circumstances of the making of the 2016 will, as outlined by the solicitor, were that Zouha and Joseph accompanied Nouhad to the solicitor’s office, the solicitors then took Nouhad’s instructions, while Jimmy and Zouha waited outside. The solicitor was concerned that Nouhad had a medical condition and strongly advised her to seek medical advice and a report as to whether she had capacity to execute a will.

Credit

1. [362]

   I closely observed Michael giving his evidence and have also considered the various components of his evidence from the record of the proceedings reflected, in part, by the summary of evidence provided earlier in this judgment.

2. [363]

   Michael performed very poorly in cross-examination. In my view, he was a wholly unreliable historian whose evidence was on most, if not all, occasions entirely directed to his self-interest. The evidence he gave shifted during cross-examination in order to accommodate deficiencies in his evidence. When confronted with inconsistencies, he consistently resiled from his stated position. His evidence was, as submitted by counsel for the first cross-defendant, defensive, obstructive and not evidence consistent with a genuine memory of the conversations constituting the alleged promise. His evidence was unconvincing and implausible on many levels.

3. [364]

   Supplementary to those observations, reference may be made with respect to particular features of the cross-claimant’s evidence adversely reflecting on his credit as a witness. Those features are referred to below (without elaboration where the subject matter has been the subject of consideration earlier in the judgment):

   1. (1)

      There are substantial inconsistencies in the evidence of Michael as to the promise by its content and surrounding circumstances. His evidence as to the loans is inconsistent and contradictory.

   2. (2)

      Michael consistently resiled, when tested, from his stated positions, particularly in relation to core features of the circumstances under which the promise was given and the contents of the promise.

   3. (3)

      Michael’s account of the giving of the promise was implausible in a number of respects.

   4. (4)

      The first cross-defendant correctly contended that Michael’s evidence as to his memory reflected poorly on his credit.

   5. (5)

      Having regard to his affidavit evidence, Michael’s statement that he took a number of hours to contemplate his parents offer and that the conversation containing the purported promise went for a number of hours strains credulity.

4. [365]

   Whereas Michael’s evidence as to the legal bill is supported by other evidence, his evidence as to the demand within that bill is not supported by other evidence and is implausible.

5. [366]

   I have given consideration as to whether a finding should be made, as sought by counsel for the first cross-defendant, that Michael’s evidence as to the promise and his reliance upon it was a fabrication. Such a finding is potentially available in the light of the above considerations and the fact that, in the possession proceedings, the cross-claimant was asked by M Adams J, “Why should you stay in the property? It’s not yours, is it?”. Allowing for the cross-claimant being self-represented (in those proceedings), it strains credulity that his response contained no reference to the promise. That was the clearest of circumstances inviting reference to that position. Rather, six months later, the cross-claimant filed the cross-claim.

6. [367]

   However, it is sufficient to determine this matter to conclude that the applicant’s account is a significant reconstruction and that his credibility as a witness was so undermined by cross-examination that a conclusion must be made that he is a wholly unreliable witness and that no reliance may be placed upon his evidence unless corroborated by other evidence.

7. [368]

   Arze’s evidence does not corroborate Michael’s evidence. She too performed poorly in cross-examination and little weight should be attached to her evidence. My observation of Arze was that she was inclined in her evidence to provide every assistance to her husband’s case as she was able to do and was often evasive.

8. [369]

   Some particular features of Arze’s evidence, in this respect, may be referred to:

   1. (1)

      She deposed to only one conversation involving the promise in her affidavit. That conversation was said to have occurred with Michael, Tony and Nouhad in 1998. This was notwithstanding that on other occasions in her cross-examination she gave evidence of conversations with Michael regarding the promise, which were not referred to in her affidavit.

   2. (2)

      When pressed in cross-examination about the details of her conversations with Michael regarding the promise, she displayed a poor recollection of the circumstances in which the conversations occurred notwithstanding her assertion that she had a good memory of the promise as conveyed by Michael.

   3. (3)

      As discussed earlier, the evidence Arze gave that she was unlikely to be engaged in a discussion about financial matters with Michael as a matter of custom was contradictory to her evidence of discussions regarding the promise.

9. [370]

   There was no challenge in substance to their credit and, as I have stated, my observation was that they were truthful and reliable witnesses who gave their evidence in a generally forthright and candid manner.

10. [371]

    Zouha was, for the most part, responsive and believable, but the weight of her evidence was diminished to some extent by passages of her evidence in which she claimed inadequate memory, which was inconsistent with her other memories of events more favourable to her case and unlikely given the subject matter about which she was questioned. Those passages of her evidence reflected an apparent reluctance to admit knowing facts about which she could be expected to know. For example, Zouha admitted visiting her parents on a regular basis, yet could not recall how old her father was when he retired, nor whether a new bathroom was installed at the property. Further, as mentioned, Zouha did not recall any discussion about Nouhad having to pay the solicitor’s bill of $28,000, notwithstanding the state of the knowledge of her fellow siblings. Finally, as set out above, Zouha initially resisted providing an answer as to whether she recalled anything in relation to Michael using his superannuation payment to repay the Arab Bank loan but eventually conceded that she may have heard about it.

The Promise

1. [372]

   Whilst the authorities make clear that it is not the existence of an unperformed promise that invites the intervention of equity, but the conduct of the plaintiff in acting upon the expectation to which it gives rise, it is foundational to establishing equitable relief that Michael prove that, on the balance of probabilities, Tony and Nouhad induced Michael to adopt that expectation by the making the promise.

2. [373]

   In my view, Michael has not discharged that onus.

3. [374]

   Michael’s assertion was that the promise occurred over 20 years ago. His father is now deceased and his mother incapacitated. On Michael’s evidence the only persons alive or able to give evidence of the promise are himself and Jim. His evidence required close scrutiny. For the reasons earlier given I do not consider Michael to be a reliable witness. Jim, who I have found to be a witness of credit, does not corroborate Michael’s account. He gave no evidence confirming the existence of the promise but rather gave evidence that a loan needed to be taken out in order to pay Michael’s debt, the solicitor’s bill, some renovations and weddings and not by reason of the promise. It may be noted, in that respect, that both he and Michael were searching for wives in Lebanon at or about that time. Arze was not present at any relevant time concerning the promise and her evidence otherwise does not, in my view, corroborate Michael’s account because little weight should be attached to it.

4. [375]

   Michael seeks to sustain the existence of the promise by referring to a later statement by Tony made to his family conveying the effect of the promise. That account was denied by each of the other siblings. I accept their evidence in this respect.

5. [376]

   The cross-claimant contented that the absence of provision for the promise in the 2003 wills (and the 2016 will) was not “relevant” as the promise was distinct from and did not depend for its operation upon any testamentary disposition.

6. [377]

   It is true that one of Michael’s assertions as to the terms of the promise did not require testamentary disposition. However, in the May 2018 affidavit, Michael stated that the promise incorporated, inter alia, the following: “get married and live with us till we both die, then it’s yours”.

7. [378]

   In any event, in circumstances where Tony has died and Nouhad is incapable of giving evidence of their intentions, the 2003 will is relevant to show the intentions of Nouhad as at 2003 when not under or showing the effects of Alzheimer’s-type dementia. Upon the succession of the property after 2004, Nouhad’s intention as expressed in her will was inconsistent to the promise, even though the weight that may be attached to that consideration is reduced because it is directed at testamentary disposition. No weight can be placed on the 2013 will, to the extent it points against inferences that may be drawn from the 2003 will, given the insufficiency of any evidence led by the cross-claimant as to his mother’s capacity when she made that will or whether appropriate steps were taken to make sure that the mother understood what was in the will she signed.

8. [379]

   Thus, the cross-claimant’s primary claim must fail. I note in that respect that counsel for the cross-claimant accepted that, if Michael’s evidence was found unreliable, that the primary claim must fail.

9. [380]

   There is a further consideration bearing upon the primary claim. I accept the submission by the first cross-defendant that in order for Nouhad to be legally obliged by the promise given by Tony in 1994, the cross-claimant must establish a personal equity enforceable against Nouhad. Further, I accept that no personal equity was enforceable against Nouhad for two reasons. First, as I have found, the promise did not take place. Secondly, the evidence does not suggest a conclusion that Nouhad expressly affirmed and agreed with any purported promise. On one version of the promise, Nouhad merely stated: “Please help us Michael”. On another version, Nouhad is not recorded as making any observation – it is said Tony expressed the promise on behalf of Nouhad. The only other evidence was of a statement purportedly made by Nouhad in 2013, when she was afflicted with Alzheimer’s-type dementia and, in the particular circumstances, where Michael took her to a solicitor to revise her will at the time Zouha had enduring power of attorney.

Reliance

1. [381]

   In the light of the above finding, it is unnecessary to resolve the question of reliance, because there was no unperformed promise that invited the intervention of equity. There can be no expectation in the absence of a promise giving rise to an expectation.

2. [382]

   However, some brief observations may be made as to the failure of the cross-claimant’s reliance case. In order to do so, attention should first be given to the issues associated with the solicitor’s bill and the loans or mortgages.

3. [383]

   It is true, as I have found, that Michael paid the solicitor’s bill. The preponderance of the evidence earlier set out in this judgment is that there was a renovation of the kitchen and that a new carpet and lighting were installed.

4. [384]

   As to the financial arrangements that were entered into from 1994, the evidence discloses, having regard to the findings made as to Michael’s credibility, the following:

   1. (1)

      A prior mortgage over the property to Westpac Bank was discharged, as proved by the documentary evidence.

   2. (2)

      There was no evidence as to the amount owing on the Westpac Bank loan upon its discharge. There was neither documentary evidence which detailed the amount owing, nor was the amount able to be inferred from the witness evidence which did not address this point. Michael did not provide that detail. His evidence was that an amount owing was $81,024 from the Arab Bank loan. Counsel for the cross-claimant asserted that the Westpac loan in 1994 had an amount owing of $40,000 but there is no evidence to support that submission.

   3. (3)

      A loan was taken out with the Arab Bank. Tony and Nouhad were listed as the mortgagors and Michael (together with Tony and Nouhad) was listed as the customer. This conclusion is supported by documentary evidence and the evidence that Michael’s siblings learnt of that fact.

   4. (4)

      It was contended by the cross-claimant that the Arab Bank loan was for $90,000. However, he did not establish that fact as the evidence is consistent with a $50,000 loan for the following reasons:

   5. (5)

      Both Arze and Michael made repayments on the Arab Bank loan, but that the amount of these repayments is unable to be determined due to the lack of evidence.

   6. (6)

      Michael discharged the Arab Bank loan using some of the proceeds from his superannuation payment. The witness evidence is largely consistent in this respect. Furthermore, Michael withdrew the sum of $81,024 from his bank account at or about the time of the discharge of the mortgage. Counsel for the cross-claimant contended that the Court should draw an inference based on the proximity of the withdrawal and the discharge of the mortgage. However, I do not find that the entire sum of $81,024 was used to discharge the Arab Bank loan. Save for Michael’s evidence, there was no direct evidence that the whole sum was paid. I have found above that the amount of the Arab Bank loan was not $90,000. It follows that the sum paid in discharge of the Arab Bank loan was not that amount. Further, there was no adequate explanation for the absence of evidence relating to the Arab Bank loan including evidence of repayments made between 1994 and 1998.

5. [385]

   This brings forth consideration of the particular factors which would contribute to a rejection of Michael’s case on reliance. Those factors are as follows:

   1. (1)

      Michael’s evidence as to the use of the Arab Bank loan was inconsistent and predicated upon the existence of a $90,000 amount, which I have found was not available on the evidence.

   2. (2)

      It seems entirely unlikely that Tony and Nouhad would incorporate the obligation to renovate the property into a purported promise to Michael. Firstly, as mentioned previously, that proposition sits uncomfortably with the circumstances said to surround the making of the promise, namely, an emergency for Tony and Nouhad. Secondly, no evidence was proffered as to why Tony and Nouhad would be minded to undertake renovations in those circumstances. In fact, it is apparent on the evidence discussed earlier that, if anyone, Michael was the driver behind the renovations and a key beneficiary of them.

   3. (3)

      Similarly, the dominant purpose of the travel to Lebanon was, on the preponderance of the evidence, to provide a benefit to Michael (and Jim); that is, for them both to find wives and bring them to Australia in suitable accommodation. A direct correlative of this analysis is that a portion of the expenditure said to have been incurred by Michael was in relation to the weddings of himself and Jim.

   4. (4)

      Furthermore, on Michael’s evidence, as summarised by the first cross-defendant at [72], Michael was very generous in using his money to assist his family. The first cross-defendant accepted that Michael had paid all recurring household bills in addition to being very generous with his money towards his parents. No plausible explanation is proffered as to why the payment of the solicitor’s bill should represent a change in that practice. The existence of a purported emergency is just as likely to compel further generosity than an exchange resulting in a benefit.

   5. (5)

      Michael gave no evidence in his affidavits as to the acceptance of the promise, save for an unbelievable passage in his December affidavit in which he said:

   6. (6)

      Michael’s conduct after the alleged promise was inconsistent with a genuine belief in the promise. He made no note of the terms of the promise and he did not seek a copy of the 2003 wills to ensure they reflected the promise.

   7. (7)

      Notwithstanding the fact that there is evidence of Michael being financially generous to his parents, the evidence does not support dependence by the parents on Michael. Nor was there any reasonable basis for Michael having that belief. As mentioned, the assistance Michael gave with the solicitor’s bill is not inconsistent with those prior acts of generosity and, in any event, the Arab Bank loan that he stated was taken to pay the solicitor’s bill was ultimately obtained in the context of a mortgage taken by the parents when there was plainly equity in the property. Further, as I will discuss later, it is clear that the steps taken by Michael in late 1994 were designed to, on his own case, meet his own needs such as the renovations, weddings and trips to Lebanon.

6. [386]

   For completeness I note the cross-claimant contended that his contributions made under the purported promise were akin to the primary relief sought and that departure from the promise would therefore be unconscionable. There are two difficulties with this submission. The first is the difficulties associated with his reliance case. The second is that the cross-claimant brought no evidence as to the value of the property as at 1994 or at any later time.

Conclusion: Primary Relief Refused

1. [387]

   The primary relief sought is refused. The prayers for relief 1, 2 and 5 should be rejected.

Alternative Relief

1. [388]

   As mentioned at the outset of this judgment the cross-claimant sought to defer the hearing of the claims appearing in prayers 3 and 4 of the cross-claim, which are described as alternative claims for relief.

2. [389]

   That application occurred at the final day for the hearing of the matter. The issue had not been raised previously in the hearing of the matter. No application was made at the outset of the hearing for the disposition of the cross-claim to be in two parts. That course was opposed by the first cross-defendant.

3. [390]

   The Court permitted the parties to make supplementary submissions in writing as to any legal authority bearing upon whether the cross-claimant may be permitted to pursue the alternative relief at “this stage” of the proceedings. In the result, the Court received written submissions from the cross-claimant and the first cross-defendant which are summarised at [59]-[62] and [81]-[83] respectively, above.

4. [391]

   It would appear that, having regard to the authorities relied upon by the cross-claimant, the Court has power to grant the alternative prayers for relief. The merits of such claims is another matter and will no doubt be impacted by the findings made in this judgment.

5. [392]

   There is a further question, whether the cross-claimant should be permitted to prosecute the alternative claims in the circumstances in which the alternative claims were pursued. The first cross-defendant amply described the issue by submitting that the Court should consider why, in the circumstances, the cross-claimant should be given an indulgence to advance supplementary submissions as to the alternative relief sought when he had not raised the prospect of that approach until the close of the proceedings. It was also submitted that the cross-claimant had failed to explain why he had chosen not to deal with the alternative relief until that stage of the proceedings.

6. [393]

   Clearly, the application made by the cross-claimant needs to be viewed through the prism of ss 56 and 57 of the Civil Procedure Act. The first cross-defendant was entitled to rely in that respect on upon wastage of time and costs associated with the conduct of the proceedings by the first cross-defendant in this respect. Reference was made to the first cross-defendant’s case being legal aid funded.

7. [394]

   Those contentions by the first cross-defendant have some force. However, they need to be considered in the light of two additional factors. The first is that the cross-claimant has indicated that he did not envisage any further evidence being called in support of the alternative relief. Nor did the first cross-defendant envisage any further oral hearing. Further, the alternative claims will require consideration in the light of this judgment.

Conclusion: Alternative Relief

1. [395]

   In my view, the balance of these issues in the interests of justice should be that the cross-claimant be permitted to prosecute the alternate forms of relief in prayers 3 and 4 provided that the following conditions apply to any further proceeding in that respect:

   1. (1)

      There should be no further evidence save by leave of the Court. The determination of the question of leave will be predicated on the concessions made by counsel for the cross-claimant on the final day of hearing of the matter. It may be noted that the first cross-defendant has not been heard as to any further evidence at this stage.

   2. (2)

      Submissions as to the alternative relief shall be in writing, save for leave of the Court to make oral submissions. Parties are at liberty to refer to further relevant authority bearing upon the alternative claims.

   3. (3)

      The prejudice to the first cross-defendant shall be met by orders for costs in relation to the alternative relief.

Costs

1. [396]

   The costs of the hearing of the primary relief should be made in favour of the first cross-defendant. The costs of the alternative relief will ultimately be dealt with in the manner described above but for present purposes may be reserved, until the course of any further proceedings are finally known.

ORDERS

1. [397]

   The Court makes the following orders:

   1. (1)

      The first cross-defendant shall bring in short minutes of order reflecting this judgment within seven days of the publication of this judgment.

   2. (2)

      The cross-claimant shall file and serve any written submissions in relation to the alternative relief in prayers 3 and 4 within 14 days of the publication of this judgment. Any application to adduce evidence or for an oral hearing should be made in those written submissions. If such an application is made it should be accompanied by submissions in support of the application together with, in the case of further evidence, the actual form of the evidence proposed to be led by the cross-claimant.

   3. (3)

      The first cross-defendant shall file and serve any submissions in reply on or before 14 days after the receipt of submissions pursuant to order (2) above.

   4. (4)

      In the event that any application for leave to lead further evidence, the Court will determine that question together with any application for a further oral hearing on the papers.