Van Rensburg v Adilinis; Van Rensburg v Raft

The late Lola Raft (Lola/Mrs Raft) and the late John Adilinis (John/Mr Adilinis) were brother and sister. For a number of years, they operated a food outlet on the Central Coast of New South Wales known as the Golden Gate Café at 195 The Entrance Road, The Entrance (café).

The plaintiff in these two proceedings (Mr Van Rensburg) did some work in the café, lived in the residence behind the café (Residence), and provided some care to Lola and John – exactly how much work and how much care was in dispute in the proceedings.

In proceedings 2021/00275570 (the first proceedings), Mr Van Rensburg relies on three claims:

In proceedings 2023/00157906 (the second proceedings) Mr Van Rensburg brings a family provision claim against John’s estate. This claim was abandoned in closing address. Accordingly, only the first proceedings remain relevant.

The proceedings were heard together with evidence in one proceeding being evidence in the other, over the period 17 to 21 and 24 June 2024. Further written submissions were made by counsel for the defendants dated 25 June 2024. Mr C Wilson appeared for Mr Van Rensburg. Ms E Windsor and Ms M Adams-Nash appeared for the defendants.

For the reasons set out below, all of the claims advanced by Mr Van Rensburg fail. I will give the parties an opportunity to agree orders as to costs, and failing agreement, I will determine the issue of costs on the papers.

The relevant events in the proceedings largely span the period from about 2013 to 2021. This is the disputed period from when Mr Van Rensburg says that he reacquainted himself with Lola and John until he was evicted from the Residence.

At the forefront of Mr Van Rensburg’s proprietary estoppel claim are a series of oral representations allegedly made during the period March/April 2014 to April 2015. I consider below whether any of the representations were made. In so doing, I bear in mind the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 to the effect that:

As a corollary, I proceed on the basis that contemporaneous records (to the extent they exist) are likely to provide the most reliable evidence of what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing). Inherent probabilities in the circumstances are also a strong guide.

Mere mechanical comparison of probabilities, independent of any belief, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references: see Emmett J in Warner v Hung, Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

As Legatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

The representations relied on by Mr Van Rensburg were allegedly made by Lola and John, both of whom are now deceased. An affidavit sworn by John before he died was also admitted into evidence, although there is an issue as to John’s state of mind at the time and accordingly the weight to be attributed to his affidavit evidence. In considering what findings to make in relation to the alleged representations and associated matters, I bear in mind what Ward J (as the learned President then was) said in Dable v Peisley [2009] NSWSC 772 (Dable v Peisley) at [130]-[131]:

The principal witness in Mr Van Rensburg’s case was Mr Van Rensburg himself. He also called five supporting witnesses. Against their evidence was evidence given by four members of the Raft family (the Rafts). I deal later in these reasons with what can be taken from the evidence of the supporting witnesses. I make the following general observations about Mr Van Rensburg and the Rafts.

The principal witness in the case was the plaintiff, Mr Van Rensburg. He prepared four affidavits in total and was cross-examined for a little over a day.

I approach his evidence with considerable caution. He gave his evidence in quite an argumentative way. At times he gave evidence in a non-responsive way, going out of his way to say things disparaging of the defendants and in particular Stephen Raft (Stephen), Lola’s eldest son, now sole heir and the third defendant in the first proceedings.

His evidence in cross-examination was at times confusing. One example was the period of time he apparently held the belief that he could live in the Fairview Avenue Unit rent free (as defined below) – ranging from several weeks to several months. He also sought to give at times unresponsive answers to questions, obviously aimed at seeking to bolster his case. One example was seeking to suggest that John and Lola had requested Mr Van Rensburg to look after them at the time of first representation (as defined below).

On occasions, however, Mr Van Rensburg gave quite frank answers against his interest. One example concerned the photographs of Lola’s room showing dog faeces under the bed. Mr Van Rensburg admitted that since he suffered a shoulder injury, he was unable to bend down to clean under the bed.

On occasion he gave what emerged as false answers in an attempt to deflect the questioner on topics that he said he did not believe were relevant. One example was the inheritance he received out of his parents’ estate. He initially gave quite non-responsive answers but, after some prompting in cross-examination, ultimately admitted to having received $80,000.

Another was evidence he gave as to not owning a mobile phone as at December 2020 when a mobile phone was found in John’s pocket while he was going to see his solicitors to sign a letter evicting Mr Van Rensburg.

Counsel for Mr Van Rensburg did not dispute that these were both lies told by Mr Van Rensburg. The issue is what flows from this. Mr Van Rensburg’s counsel contended that telling lies on some matters does not mean Mr Van Rensburg was telling lies on all matters.

As the Full Court of the Federal Court observed in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94], it has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law. A finding that a witness has lied may, however, affect the degree of satisfaction of the evidence or otherwise of a fact in issue to which evidence of the witness was directed: Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [272].

I am quite troubled by Mr Van Rensburg’s willingness to lie. His presentation in the witness box and in particular this willingness to lie causes me further reason to adopt the orthodox approach of principally relying on contemporaneous documentation. In the absence of contemporaneous documentation, I do not rely on Mr Van Rensburg’s oral evidence unless it is against his interest, corroborated, or consistent with inherent likelihoods.

Stephen was a cautious witness. On a number of matters his recollection was not very good. This is perhaps unsurprising given the effluxion of time. Some of the matters were, however, matters which I would have expected him to remember, including when it was that he had a stroke and when his brother had, quite recently, passed away. This causes me to approach with caution any evidence which relies only on Stephen’s recollection.

It also emerged in cross-examination that in relation to aspects of his affidavit evidence, he admitted he was not personally involved but other family members in fact were, including his wife Linda, and as such, his evidence was second hand and not, as a reader of his affidavit would have thought, first-hand. Again, I am cautious about simply accepting his oral evidence and place greater reliance on the contemporaneous documents.

Linda Raft (Linda), Stephen’s wife, gave her evidence in a straightforward manner, making concessions where appropriate including in relation to matters where she did not know, for example, what level of care Lola required in 2020. I accept her evidence. She came across as having a good recollection.

The final two witnesses to give evidence were Therese Raft (Therese) and Victoria Raft (Victoria), Stephen and Linda’s two daughters. Each gave evidence in a clear and coherent way. Each was doing their best to assist the Court and I accept their evidence. Again, they came across as having good recollections.

Most of the background facts were not in dispute. I summarise them below.

The central factual issues were:

I deal with these factual issues later in these reasons.

The background begins in about 1949/1950 when Lola (who was born in November 1927), together with her husband (Dennis) commenced operating the café. The café appears to have been more akin to an old-fashioned milk bar. Dennis had migrated to Australia in or around 1937, and Lola in about 1946. The land and building on which the café was conducted was purchased by Dennis and another man in about May 1949.

John (who was born in September 1931) joined the partnership in 1951.

At the rear of the café building was the Residence. The Residence and the café were separated by a wall and lockable door. The café included a commercial kitchen, cool room, bathroom and public dining area. The Residence consisted of three separate bedrooms, a lounge room, a walk-in robe and a bathroom. A laundry for the Residence was located in a separate building. There was no kitchen in the Residence.

Lola and Dennis married in 1950. They had two children. Stephen, born in 1956 and Paul Raft (Paul), born in 1963. Working in the café was a family affair, including members of the extended family.

Stephen married Linda in 1983. They had three children, Therese, Dennis Jnr and Victoria. Paul married Carol. Paul had two children – Brianna and Ashleigh.

By all accounts the café was extremely successful although it did not appear to be in dispute that trade declined significantly in the years leading up to its closure some time after the second COVID lockdown. The trading records for the café for the period 2012 to 2021 were in evidence and showed a significant decline in takings over this period and that the café only ever made modest profits over this period.

Between around the early 1960s and around the mid 1970s, Dennis and Lola bought numerous properties along The Entrance Road, and on Fairview Avenue in The Entrance. One property which assumed some significance in the proceedings was a flat on Fairview Avenue which was above the shop that was adjacent to the café (Fairview Avenue Unit).

John also purchased property in the area. One such property was at 2/210 The Entrance Road, Long Jetty. Mr Van Rensburg moved into this property in September 2014, paying $190 per week in rent. He continues to rent the property to this day, now from new owners, the property having been sold by John in about late 2021.

Mr Van Rensburg first became acquainted with the café in about 1984. He was living at Gosford at the time and would attend the café with his then girlfriend, who lived in the area. They would go to the café approximately three times a week. This lasted for approximately two to three years.

Mr Van Rensburg met John during this period. He was aware of Lola but did not speak to her much. Lola’s husband Dennis was in the kitchen and Mr Van Rensburg did not have much to do with him.

It was in or about February 2013 that Mr Van Rensburg says that he “reconnected” with John and Lola when he went back to the café.

He gave evidence that he was not working at the time, apparently still getting over the death of his father and mother who had recently died in 2010 and 2012 respectively. He was on a Newstart allowance at the time and either had received, or was about to receive, an inheritance from his parents’ estate which, after some prompting, he said was about $80,000.

It is not in dispute that Mr Van Rensburg lived with John and Lola from about September 2017 until August 2021 (Lola having left in November 2020). He says, however, that he moved in much earlier in late 2014. I deal with this dispute below as it is tied up with the issue of whether any of the representations were made.

It also does not appear to be in dispute that Mr Van Rensburg provided some care to John and Lola, although the extent of this care was significantly in dispute. I deal with it below.

Lola was admitted to hospital on 6 November 2020. She was discharged into the care of Stephen and Linda, where she remained for several months. She was then moved to respite care and died in May 2021.

Mr Van Rensburg vacated the residence in August 2021, having been given a notice to vacate in July 2021. He was given an earlier notice to vacate in December 2020.

Mr Van Rensburg was asked to vacate his rented accommodation at 2/210 The Entrance Road in about April 2021. This was principally being driven by Stephen, but John advocated for Mr Van Rensburg to be given a new lease, which was agreed to. John subsequently sold the property but Mr Van Rensburg continues to occupy it.

The first proceedings were commenced on 27 September 2021.

John subsequently went to live with Stephen and Linda. He died on 17 January 2023. The second proceedings were commenced on 17 May 2023.

Lola left a will made 20 September 2019 (Lola’s Will). Probate was granted on 6 September 2021.

The executors of Lola’s Will were:

After John’s death, Stephen and Stephen Leeds Cutler remain as the executors of Lola’s estate.

Lola’s Will provides the following specific gifts:

Lola’s Will provides that half of the residue from her estate goes to Stephen (Lola’s Will clause (3)(h)). Lola’s Will also provides that the other half of the residue from her estate was to be held on trust for her son Paul. On Paul’s death the half of the residue held on trust for Paul (subject to life estate of property known as 122 Eastern Road Tumbi Umbi for Carol) was to pass to Stephen (Lola’s Will clause (3)(i)(iv)(D)).

Paul died in May 2023. On Paul’s death, Stephen became the beneficiary of the whole of the residue of Lola’s Estate.

Lola’s prior will made 19 June 2012 was to similar effect as her September 2019 will.

Stephen, in his affidavit dated 7 July 2023, estimates the value of Lola’s estate at $7,289,704.07. She owned a number of properties with John, either as joint tenants or tenants in common. One of the properties located at Eastern Road, Tumbi Umbi, is subject to a life estate in favour of Carol Raft (the widow of Paul).

In addition to owning properties, Lola owned two shares in Raftlinis Investments Pty Ltd (Raftlinis), the major asset of which appears to be a property at The Entrance Road, The Entrance. Raftlinis has an income of about $140,000 per annum and Lola’s two shares are valued at $1,304,650.58.

John left a will made 24 August 2021 (John’s Will). No party raised any issue as to John’s testamentary capacity as at August 2021. Probate was granted on 10 July 2023. In any event, his prior will made in September 2019 was to a similar effect as the August 2021 will.

The executors of John’s estate are Stephen and Stephen Leeds Cutler.

John’s Will provides the following specific gifts:

John’s Will provides that half of the residue from his estate goes to Stephen (John’s Will clause (3)(e)).

John’s Will also provides that the other half of the residue from his estate was to be held on trust for Paul. On Paul’s death, the half of the residue held on trust for Paul (subject to life estate of property known as 122 Eastern Road Tumbi Umbi for Carol (John’s Will clause (3)(f)(iv)(A))) was to pass to Stephen (John’s Will clause (3)(f)(iv)(B)).

On Paul’s death, Stephen became the beneficiary of the whole of the residue of John’s estate.

Stephen, in his affidavit dated 7 July 2023, estimated that John’s gross distributable estate is $5,762,796.21, comprising property – either owned individually or jointly with Lola – and one share in Raftlinis.

As the residuary beneficiary of both Lola and John’s estate, Stephen has inherited assets with a value significantly in excess of $10 million.

Mr Van Rensburg was born in 1967. He has three children: a son and two daughters.

Prior to coming to work at the café, Mr Van Rensburg had held a number of jobs. His evidence regarding his work history prior to 2011 was, at times, unclear. As best as I can ascertain, Mr Van Rensburg’s work history is as follows:

Overall, from 1988 to the end of 2010 or 2011, Mr Van Rensburg worked at numerous hospitals in various positions, being a wardsman for about five or six years during this period.

He gave evidence that his position in life as at May 2023 was as follows:

I set out below an overview of the factual case advanced by Mr Van Rensburg relevant to the claims he advances.

It begins in about 2013 when Mr Van Rensburg reacquainted himself with the café, with Mr Van Rensburg assisting Lola with the filling of lolly bags at the café. He did this most days for about an hour.

In about May 2013 Lola fractured her hip and was admitted to hospital. After that time, the work he did in the shop increased.

During the period from March/April 2014 to April 2015, five representations were made to him by John and Lola on which he relied.

His affidavit evidence in relation to the representations and what he did in reliance on them, was as follows:

Mr Van Rensburg says that after the second representation and in about December 2014, he moved into the third bedroom in the Residence. He says that the bedroom was not big enough for all of his things, so he kept his furniture and other property at 2/210 The Entrance Road for which he continued to pay rent. He paid no rent for living in the Residence. After he moved in, he ate every day at the café and stopped paying for food.

He started cooking the evening meal for John, Lola and himself and took over the role of cleaning the Residence.

He also says that after John and Lola told him that he could stay with them, that they would look after him, and that he would always have a place to live (the third representation), he increased the work he did in the shop and from that time, he worked in the café from 9 am to 9 pm, seven days a week, being the times that the café was open.

Mr Van Rensburg also gave some evidence tying his moving into the Residence to the receipt of a Certificate III in Aged Care at Gosford TAFE, which he received in December 2014. It was at this time that he moved in.

Prior to then, and after Lola came out of hospital and was being visited by community nurses, when Mr Van Rensburg was apparently spending one to two nights a week staying in the Residence, he says Lola and he had a conversation to the following effect:

This appears to have been the genesis for Mr Van Rensburg doing the course – namely to look after Lola – although in cross-examination, Mr Van Rensburg gave evidence that Lola’s suggestion that Mr Van Rensburg do the course was not in the context of Mr Van Rensburg looking after her. This was one of a number of troubling aspects of Mr Van Rensburg’s evidence. His own affidavit evidence links the two.

A central aspect of Mr Van Rensburg’s case was that John and Lola wanted him to stay with them at the Residence as they were concerned that Stephen and Linda would move them into a nursing home, which they did not want. Mr Van Rensburg gave evidence that this was a source of contention or friction between John and Lola on the one hand and Stephen and his family on the other. The Rafts disputed that there was any such friction.

Mr Van Rensburg says from December 2014 when he moved into the Residence until Lola was admitted to hospital on 6 November 2020, he provided care for Lola. When the care commenced, Lola was 87 years old. A brief overview of the care suffices for present purposes:

The work Mr Van Rensburg was able to perform apparently reduced from early 2019 onwards when he hurt his left shoulder when catching Lola as she fell. This restricted Mr Van Rensburg’s ability to lift his left arm.

Mr Van Rensburg says he was not paid for this work.

Mr Van Rensburg says he provided care for John. This started when John was about 82 years old. Again, the following overview suffices:

Again, Mr Van Rensburg says that he was not paid for this work.

Mr Van Rensburg gave evidence of doing work in and around the café. Apart from one day in 2014 – when it was his birthday – Mr Van Rensburg claims that he worked all day every day, i.e. seven days a week in the café. The following summary suffices:

Apart from working in the café he also ran errands for both John and Lola.

Mr Van Rensburg claims he was not paid for any of this work.

There was a degree of similarity in the affidavit evidence adduced for the defendants – principally from Stephen, Linda, Therese and Victoria. An affidavit of John made 23 November 2021 (John’s affidavit) was also filed, which I deal with below.

The defendants denied the first, second, fourth and fifth representations. The third representation was not admitted. This position appears to be based on instructions provided by John, which are reflected in John’s affidavit.

The factual case advanced may be summarised as follows:

Mr Van Rensburg adduced evidence from Mr Mark Stevenage, Ms Thelma Couch, Mr James Sherar and Ms Linda Thomas, each of whom gave evidence of what they observed when they visited the café and also what Mr Van Rensburg told them he was doing, particularly as to the care he was providing for Lola. Each was cross-examined. I set out below my general observations and findings in relation to their evidence.

Mr Stevenage visited the café at least once every one to two months between 2013 to 2019. Each time he visited it was always John and Mr Van Rensburg working – John would take the order and Mr Van Rensburg would make it and he (Mr Stevenage) would chat to Lola. Mr Stevenage saw Mr Van Rensburg cooking, serving, cleaning the café, stocking the fridge with drinks and buying stock from the supermarket.

He said Lola told him she was very grateful for the things Mr Van Rensburg did for her, John and the café. When pressed in cross-examination as to what Lola told him Mr Van Rensburg did for her, he could not recall any detail. His response when pressed to recall any detail was “not specific no. Just, it’s very general.” After 2018, Mr Van Rensburg told Mr Stevenage that he was too busy at the shop and caring for Lola and John to come out for dinner as he previously had done.

Mr Stevenage did not observe Mr Van Rensburg providing any care for Lola but was told by Mr Van Rensburg what he did. Again, however, he could not orally provide much detail. Mr Van Rensburg also apparently told Mr Stevenage on numerous occasions that “John and Lola promised me that I will always have somewhere to stay” and “I will always have a place to live”.

I generally accept Mr Stevenage’s evidence. It supports Mr Van Rensburg’s evidence as to his working in the shop. Insofar as Mr Van Rensburg was telling Mr Stevenage certain matters it does not advance things too far. Those issues – statements made by Lola, care provided to Lola and promises that Mr Van Rensburg would always have a place to live – depend principally on whether I accept Mr Van Rensburg’s evidence. Mr Stevenage was not able to provide any real detail of what Lola told him.

Ms Couch was a regular visitor to the café and observed Mr Van Rensburg working there from apparently as early as 2013. She had known Mr Van Rensburg since 2001 and admitted that she and Mr Van Rensburg were pretty good friends and that she wanted to help her friend. She also provided some limited evidence of Mr Van Rensburg caring for Lola and running errands and deposed to one conversation with Mr Van Rensburg where he said he was living at the Residence because John and Lola were not able to look after themselves.

I accept Ms Couch’s evidence. It generally corroborates Mr Van Rensburg’s evidence, principally in relation to working in the café. Again, insofar as she recounted what Mr Van Rensburg said to her, proof of those underlying matters depends on whether I accept Mr Van Rensburg’s evidence. Also, her evidence was quite light on detail.

Mr Sherar attended the café from late 2013 or early 2014 a couple of times a week. He had known Mr Van Rensburg since 2009 and agreed that they were “good friends”. He said that he remembers becoming aware “sometime in 2014 that Stephen was living there as well as working in the shop”. He is certain that he was aware of this by Christmas that year, and deposed to a brief conversation with Lola where she apparently told him that Mr Van Rensburg was living at the Residence. He observed Mr Van Rensburg take Lola to the bathroom whenever she needed to go, dress her, take her meals and give her medication. On occasion he also saw Mr Van Rensburg driving John and Lola which he understood was to medical appointments.

Mr Sherar’s evidence was heavily challenged in cross-examination.

His evidence was quite confusing at times. He initially said that he visited the café when he was not working and that he was working up to 96 hours a fortnight. It then emerged that this was from 2017 onwards, and that prior to this time, he was between jobs and doing lawn maintenance work for his brother, or studying, which he said was full time. It then emerged that this course lasted only a few weeks.

Mr Sherar was also pressed, in cross-examination – and re-examination – to provide specific examples of what he observed, or what he recalls, for example, what Lola asked to be done. His responses were quite general.

The confusing answers given by Mr Sherar and his lack of ability to recall detail when pressed gives me some concerns as to the reliability and utility of his evidence.

Ms Thomas gave evidence of being a regular visitor to the café and seeing Mr Van Rensburg working in the café for some time – commencing between “seven and ten years ago” from November 2022 when she made her affidavit. She also saw Mr Van Rensburg “taking personal care of Lola and making sure she was comfortable” and said that she knew that Mr Van Rensburg was living at the premises but she cannot recall when that occurred.

In cross-examination, Ms Thomas agreed that she did not see any evidence of Mr Van Rensburg living in the Residence but she volunteered that Mr Van Rensburg, John and Lola told her he was living there in cross-examination. Whilst she deposed to John and Lola treating Mr Van Rensburg as family, she was unable to provide any examples of this.

Again, Ms Thomas’ evidence provides some support for Mr Van Rensburg’s case, particularly his working in the café and providing some support for Lola. Her evidence was, however, quite general which is perhaps understandable to an extent, particularly given the effluxion of time.

On or about 15 December 2020 Mr Van Rensburg received a notice to vacate the Residence and to vacate the premises after the café had closed each day. In effect, he was permitted to work at the café but not live at the Residence. The notice was by letter, on the letterhead of Cutlers The Law Firm acting for Stephen as attorney for Lola.

This caused Mr Van Rensburg to consult a solicitor, Mr Graham Carson.

On 17 December 2020, Mr Carson attended the café where he met with Mr Van Rensburg who gave him a copy of the letter dated 15 December 2020. Mr Carson then had a conversation with Mr Adilinis without Mr Van Rensburg being present. According to Mr Carson’s affidavit evidence, the conversation was as follows:

Mr Carson formed the view that at the time of this meeting John was competent and understood what he was saying.

Mr Carson was Mr Van Rensburg's former solicitor in these proceedings, but he ceased to act when it became clear that he would be a witness in the proceedings as to the discussion that he had with John at the café on 17 December 2020. Mr Carson had known Mr Van Rensburg for a number of years and clearly had a favourable view of Mr Van Rensburg. He was initially cross-examined for a little less than an hour. He gave evidence that he typed a file note while he was at the café. The file note was called for, a redacted version subsequently produced, and Mr Carson was then recalled for further cross-examination on day four of the hearing.

The effect of this further cross-examination was the absence of any mention in his file note (as produced) of John saying to Mr Carson (as Mr Carson had deposed to in his affidavit) that he would "transfer the accommodation and shop to Stephen." It was suggested to Mr Carson that these words were not said, which suggestion he denied by reason of what he said were matters set out in the redacted part of the file note, which apparently recounted advice he provided to Mr Van Rensburg which apparently included a greater recount of what John had said to him.

I largely accept Mr Carson's evidence. He was doing his best to assist the Court.

There were, however, aspects of his evidence which demonstrated unreliability of human memory. One aspect was that Mr Carson contended in cross-examination that he likely would have corresponded with the solicitors for the Raft family about the request that Mr Van Rensburg vacate the Residence. There was, however, no evidence that there was any such correspondence. He also said that his practice was that he typed as things were said in a conversation – almost real time. The redacted file note suggests that this is not entirely what happened in this instance, as part of what John allegedly said to Mr Carson is not recorded in the first section of the file note but is apparently recorded in the redacted section.

None of this, however, significantly alters the reliability of the file note and thus the essence of Mr Carson's evidence – being what John told him on 17 December 2020.

It was suggested to Mr Carson that he contravened the Solicitors' Conduct Rules in continuing to speak to John on 17 December 2020 after John told him that Stephen Leeds Cutler did all of his legal work. It was not clear to me where this attack went even if it were true and thus it is not strictly necessary to say any more about the contention. Mr Carson denied any suggestion he breached the rules and gave detailed reasons as to why. He was right to deny the suggestion. He did not breach the rules for the reasons he gave. Indeed, given what John told Mr Carson, it was clear that Mr Cutler would have had a conflict in acting for John if he had sought to retain him.

Notwithstanding the view that Mr Carson formed that John was competent and understood what he was saying, the opinion of Professor Rosenfeld from a little over a year later, discussed below, was that John has been suffering with significant impairment for a number of years.

Some of the statements attributed to John by Mr Carson on 17 December 2020 also cast some doubt on John’s mental competence. For example, John said that no one knows that Mr Van Rensburg was living there – yet the very reason why Mr Carson came to the café at the request of Mr Van Rensburg was in response to a notice that Mr Van Rensburg vacate the Residence – i.e. cease living there. John also reportedly said that he would transfer the Residence and café to Mr Van Rensburg, yet John was not the sole owner and therefore would not achieve what he purportedly promised.

There is also a significant issue as to the relevance of what was said to the issues in the proceedings or perhaps the weight to be attached to what was said, being some five to six years after the alleged representations, particularly in light of the matters set out immediately above which cast some doubt on John’s competence at the time.

The defendants relied on John’s affidavit. Consistent with the authorities referred to above, the weight to be given to this evidence must obviously have regard to the fact that it was not able to be tested. There is also an issue as to John’s capacity as at the date of making the affidavit. John was examined by Adjunct Professor Tuly Rosenfeld (Professor Rosenfeld), a geriatrician, on 1 February 2022, who produced a report dated 2 March 2022. There was no objection to Professor Rosenfeld’s report being received into evidence and he was not cross-examined.

John’s affidavit evidence may relevantly be summarised as follows:

Professor Rosenfeld’s report was initially obtained for the purposes of appointing a tutor to represent John in these proceedings. Significantly, his letter of instruction is dated 7 December 2021, shortly after the affidavit was made. The letter to Professor Rosenfeld states, inter alia:

The solicitors for the defendants had earlier written to Dr Lee, John’s longstanding general practitioner, on 2 November 2021. The letter stated, inter alia:

The letter was sent in the context of an application to appoint Victoria as John’s guardian and financial manager. Dr Lee was asked to comment on the proposal. By letter dated 10 December 2021, Dr Lee wrote to Cutlers The Law Firm setting out his opinion on John, including that he was “not capable of looking after his own affairs”. Dr Lee wrote a similar letter to Professor Rosenfeld, also dated 10 December 2021.

Professor Rosenfeld concluded at 10.1.1 of his report:

At 10.1.8, he concluded that John “suffers with at least moderately severe cognitive impairments associated with dementia, poor insight and understanding. These impairments have been present and have likely progressed over a period of years.”

At 10.1.10, he further opined that John “has been suffering with significant impairment…more likely than not for at least the last 5-10 years.”

In light of this report, and particularly the temporal closeness between the referral letter and the affidavit of John, I am cautious in placing any independent reliance on John’s affidavit.

Some valuable insight into John and Lola’s medical conditions can be gleaned from the documentary records produced by Dr Lee, who was apparently John and Lola’s longstanding general practitioner. According to Mr Van Rensburg, Dr Lee visited the Residence at least on a monthly basis to see Lola, and also saw John.

According to oral evidence of Linda, Dr Lee first started seeing Lola as a patient in around 2004.

The earliest medical record in evidence of Dr Lee treating Lola is, however, from 2019.

The first medical report in evidence, written by Dr Lee and concerning Lola, is dated 18 January 2019. The “surgery consultation” was recorded as a “home visit” and noted a low BP (blood pressure) and low intake of fluids.

The next report is dated two days later, on 22 January 2019, where Dr Lee noted Lola’s movement and mobilisation had increased, she was “much improved”, and that her blood would be rechecked.

A week later, on 29 January 2019, Dr Lee noted that Lola had “not felt well” over the past two days, felt exhausted, and had limited mobility. Dr Lee refers to Lola’s “carer” in this note.

On 31 January 2019, Dr Lee again visited Lola and noted that Lola had “had a stumble”, was “feeling weak and [has] gone back to bed, frail and pale” and that, according to Lola’s “Daughter in Law”, Lola had been coughing.

On 14 February 2019, Dr Lee saw Lola and drafted a “GP Management Plan”. In this, Dr Lee noted, among other conditions, Lola’s arthritis, iron deficiency, and osteoporosis. Lola’s social history in this report is recorded as living with “her brother” (John) in the shop premises. Under “Care Needs”, Dr Lee noted that “Lola is increasingly frail with severe kypho-scoliosis” and “requires assistance and supervision from Steve, her carer (not her son).” Dr Lee also noted a “fraught” family dynamic, that Paul was bed ridden and had not been mentioned by Lola “for quite some time now”, that “Steven is able bodied and does visit but there is [sic] strong differences to what should happen” and, with Linda, is “very vocal” about wanting John and Lola to retire and “perhaps…go into care”. Dr Lee determined that Lola was “medically…capable of deciding for herself. Irrespective of perceived non ideal situation she has her right to continue to stay with Johnny in the café.” I observe here that, as with each of these entries, it is not clear who is the informant, whether John, Lola or Mr Van Rensburg or a combination.

On 19 November 2019, there was a GP Management Plan Review. Dr Lee noted that Lola was very frail and further, that “she is severely kyphotic and is not mobilising but remains determined to stay in shop with Johnny with help from informal carer, Steve.”

On 12 February 2020, Dr Lee visited Lola at home and noted no significant changes, that her pain was under control and her chest was clear.

On 10 March 2020, Dr Lee saw Lola again and noted that she was nauseous but was eating, had a “cough” with “purulent phlegm on tissue” and “systolic murmur chest” and “reduced AE”.

On 4 April 2020, Dr Lee noted that Lola was “increasingly frail” with “severe kyphoscoliosis”, “no longer ambulating independently” and needed “help from Steve (carer)…including transfer and toileting”. Dr Lee noted that Lola was refusing services and “having a sponge wash every few days”. A discussion was had with “Steve” regarding the “management of medical crisis, including death”. This entry appears to record a marked deterioration in Lola’s condition. It is the first reference to Lola no longer ambulating independently and needing help with toileting. This is also consistent with the evidence given by members of the Raft family of noticing a marked deterioration in Lola when they were able to visit her in about August 2020.

On 6 April 2020, Dr Lee visited Lola at home and noted that she was “very frail”, “not feeling well” and had “a cough and sore throat”.

On 5 May 2020, Dr Lee held a telephone consultation with Lola and noted that he would “attend to give [an] influenza vaccine when available”.

On 8 May 2020, Dr Lee visited Lola at her home to give her the influenza vaccine, and noted that, due to her general debility, she was spending more time in bed, but had “better colour” and seemed “more comfortable”, with a clear chest.

On 2 June 2020, Dr Lee visited Lola at home and noted that she had “generally deteriorated” with “pain in [her] tummy” and was “not as [alert] or aware”. Later in the same month, on 25 June 2020, Dr Lee again saw Lola at her home, and noted she was “frail but not distressed” and was relying “on [her] carer for most ADLs [Activities of Daily Living]”, but according to Lola, had no pain and no abdominal pain, despite not being interested in food.

There was no evidence of any consultations after 25 June 2020.

Dr Lee had been treating John since 2007, although on one version of Dr Lee’s letters which were dated 10 December 2021, Dr Lee states that he has been treating John since 2017. I believe that this is a typographical error, since the earliest consultation report of Dr Lee treating John is dated 2016.

On 24 November 2016, Dr Lee recorded notes regarding John’s conditions, including his cataracts, glaucoma, osteoarthritis, osteoporosis, and leg ulcer. Dr Lee noted that “John and his sister” remain at the café as their “occupational therapy”. “Stephen” (Mr Van Rensburg) was mentioned, with Dr Lee saying that John and Lola “now have help from Stephen, who stays overnight” (my emphasis).

On 9 January 2020, Dr Lee saw John for osteoporosis, to discuss his blood test results, and to renew a prescription. Dr Lee noted John had increased his dosage of vitamin D capsules and was having regular greens.

On 4 April 2020, Dr Lee held a telephone consultation with John’s “carer Steve”. On this day, Dr Lee drafted a GP Management Plan with John’s consent, and noted his medical history concerning an ulcer on his left leg, cataracts, vitamin D deficiency, glaucoma, osteoporosis and osteoarthritis. Under “Care Needs”, Dr Lee noted that John was “increasingly frail with increasing kyphosis” and that, despite the risk of COVID 19, John insisted that the café stayed open, with “Steve (carer)” helping John with the “processes to minimise risks for him and the community at large”. John also declined the influenza vaccine.

On 12 February 2021, Dr Lee had a conversation with John, who he noted was “coping with the help of Steve, a carer” and was still opening the café. Dr Lee also noted that Lola was living with Stephen and Linda.

On 15 June 2021, Dr Panicker spoke with a “carer” to renew a script, but that John was otherwise well with “no other concerns”.

On 10 December 2021, Dr Lee wrote a letter to Cutlers The Law Firm, in which Dr Lee observed that “for at least the previous two years, there [have] been signs of decline in [John’s] cognition and physical health”, including “obvious signs of self-neglect”, such as a “lack of personal hygiene”, stained and unwashed clothes “with signs of incontinence”. Dr Lee noted that a limited cognitive assessment which took place on 9 December 2021 “showed significant cognitive impairment”. It was Dr Lee’s opinion that John was “not capable of looking after his own affairs”. Also on 10 December 2021, Dr Lee sent a similar letter to Dr Rosenfeld of Rosenfeld Consulting, except this letter also contains a summary of John’s medical history.

On 18 November 2020, whilst Lola was a patient at Wyong Hospital, Stephen wrote a letter to the Hospital about his plans for Lola’s future care. The letter provides somewhat of a contemporaneous record, unaffected by the existence of litigation. I set it out in full:

The Hospital discharge notes, dated 2 December 2020 also record certain contemporaneous matters although it is not clear who is the source of certain matters recorded. For example, under the heading “Social History” it is recorded:

As set out above, there were four central factual disputes in the present case:

I determine each of these disputes below having regard to the evidence which I have summarised above.

Because of the circumstances in which Mr Van Rensburg contends that the second to fifth representations were made – at a time when Mr Van Rensburg contends that he was in fact living at the Residence in circumstances where Mr Van Rensburg had been threatened by Stephen, was asked to leave the Residence and was proposing to do so – it is convenient to deal first with the issue of when Mr Van Rensburg first commenced living at the Residence.

The competing contentions are December 2014 (Mr Van Rensburg) and about September 2017 (the defendants).

The starting point is that there are no clear objective matters supporting either party’s case.

On Mr Van Rensburg’s case he moved in at the request of John and Lola in late 2014 after the second representation. Ordinary human behaviour would perhaps expect, if Mr Van Rensburg was moving in on a full time basis with security of tenure, which Mr Van Rensburg contends he received from John and Lola through the third to fifth representations in March and April 2015, and he was not working and was in receipt of a Newstart Allowance, that Mr Van Rensburg would have ceased renting the property at 2/210 The Entrance Road and moved everything into the Residence with the termination of his rental providing firm evidence as to the date on which he moved. Mr Van Rensburg did not do this. He continued to pay rent on the property whilst apparently living at the Residence and continues to pay rent to this day. This conduct in itself is relevant more generally on whether any of the third to fifth representations were ever made as it tends against Mr Van Rensburg ever having a belief John and Lola would provide him with accommodation for life. For present purposes, it simply highlights the lack of any objective material supporting when it is that Mr Van Rensburg moved into the Residence.

The earliest documentary record of Mr Van Rensburg “living” in the Residence is in Dr Lee’s notes in relation to John dated 24 November 2016 where Mr Van Rensburg is noted as “now” providing help to John and Lola and that he “stays overnight”. It is not clear, however, that John was the source of Dr Lee’s knowledge of this or whether it was Mr Van Rensburg himself. “Staying overnight” is also susceptible of several meanings and does not say anything about whether this is full time, part time, permanent etc. Of present relevance is the reference to “now”, which suggests recency some two years after he says he moved in.

As set out above, the supporting evidence of Mr Stevanage, Ms Couch and Ms Thomas does not really bear on this point. Mr Sherar says that he remembers becoming aware some time in 2014 that Mr Van Rensburg was living at the Residence and was certain that he was aware of this by Christmas 2014 based on a conversation with Lola. There was no evidence given by Mr Sherar as to how, in late 2022 at the time of his affidavit, or in 2024 at the time he gave evidence at the hearing, he was able to tie the conversation with Lola to Christmas 2014.

Mr Sherar presented as somewhat vague in the witness box and some of his evidence was quite confusing. It was also lacking in detail. Given these matters, I have no confidence in Mr Sherar’s contention that it was some time in 2014 and certainly by Christmas 2014.

Mr Carson’s evidence of what John told him was that “Stephen has been helping me and my sister Lola, since 2014, he has stayed here full time and been a carer for both of us.” I do not read this as conveying that Mr Van Rensburg had been living there full time since 2014, as opposed to helping since then.

The one piece of evidence that I find has some reliability is that of Therese who, it was not in dispute, was an extremely regular visitor to the café and Residence in 2015 whilst she was on maternity leave. She regularly breastfed her child in the Residence and did not observe any evidence that Mr Van Rensburg was residing there at the time. This continued in 2016 through to around September 2017. Therese was not seriously challenged in cross-examination in relation to this evidence. Mr Van Rensburg accepted that Therese was visiting the café virtually every day after she had the baby. As set out above, I accept Therese’s evidence.

Stephen was also able to tie his recollection as to when he became aware that Mr Van Rensburg was staying at the Residence to the awning renovations, which it was not in dispute were in 2017. There is no reason why Therese, or indeed any of the Rafts, would have wanted to assert a later date for Mr Van Rensburg moving into the Residence. They accept he did in 2017.

There is also no suggestion that Mr Van Rensburg was taking any steps to hide the fact that he was living in the Residence such that Therese or Stephen would not have noticed.

Whilst there is perhaps some tension between Therese’s recollection and Dr Lee’s record of 24 November 2016, the latter record is only to the effect that Mr Van Rensburg was now providing help and staying overnight, rather than living full time at the Residence.

Of more significance is that neither of these pieces of evidence are consistent with Mr Van Rensburg having moved in full time when he says he did in late 2014.

Whilst perhaps of a lesser order of significance, it did not appear to be in dispute that Mr Van Rensburg’s car did break down at some stage. As set out above, John in his affidavit tied Mr Van Rensburg commencing to stay at the Residence to his car breaking down “in or around 2017”.

The evidence more generally also perhaps suggests that there was no real need for Mr Van Rensburg to be living full time at the Residence from as early as December 2014/early 2015, at least on account of providing full time care for Lola and/or John. Dr Lee’s notes in relation to Lola suggest that it was not until April 2020 that Lola was no longer ambulating independently and needed help toileting. In relation to John, Dr Lee’s notes, and indeed the evidence of Mr Van Rensburg himself, suggest that John was only in need of assistance with certain matters and was never really in need of full time care.

There are also a number of matters that I have set out below in the context of whether each of the representations were made that have led me to conclude that Mr Van Rensburg’s evidence in this regard should not be accepted. These matters are also relevant to rejecting Mr Van Rensburg’s account of when he came to be living at the Residence.

I do not accept Mr Van Rensburg’s contention that he moved into the Residence as early as December 2014. I find that it was not until about 2017 that he moved in.

I turn now to consider whether each of the representations were made. I do so having regard to the well-known principles I have set out above.

It is immediately to be observed that there is no documentation or other objective material – contemporaneous or otherwise – that supports any of the representations.

I turn now to consider the first representation which I have set out above. The first representation was allegedly made in March or April 2014 by John and Lola offering Mr Van Rensburg the opportunity to move into the Fairview Avenue Unit.

It is no longer necessary, if it ever was, to determine whether this representation was made. The Fairview Avenue Unit has now been sold and Mr Van Rensburg also accepted that he quickly became aware that he could not move into the Fairview Avenue Unit.

In any event, there does not appear to be any dispute that Mr Van Rensburg was offered the opportunity to move into the Fairview Avenue Unit and that the offer was later withdrawn. The Rafts say that the offer was withdrawn because they found out that Mr Van Rensburg had a dog and was reported to be untidy. As I understand Mr Van Rensburg’s case, the offer was withdrawn because it was decided that the Fairview Avenue Unit would be rented out.

Mr Van Rensburg says that he assumed that he would be moving into the unit rent free because he was working full time at the café. I do not need to determine whether Mr Van Rensburg in fact formed this view, but nothing done or said by John or Lola could, in my view, have caused him to reasonably form this view. It perhaps suggests a tendency on Mr Van Rensburg’s part to give evidence favourable to him, wrongly seeking to suggest some generosity on the part of the Rafts towards him. In cross-examination Mr Van Rensburg tried to link the offer to rent, to a request by John and Lola for Mr Van Rensburg to look after them. I do not accept this was said and was again an attempt to give further evidence he thought was favourable to his case.

Mr Van Rensburg also gave evidence that he carried out considerable work to the unit in anticipation of moving in. This was disputed – the defendants contending that the work was carried out by a builder.

I did not understand Mr Van Rensburg to dispute that a large amount of work was carried out by a builder – the issue, to the extent there was one, was how much work Mr Van Rensburg did. Other than perhaps relevant to Mr Van Rensburg’s general credit, it is not necessary to resolve this dispute, although I formed the view that on this issue and on others, Mr Van Rensburg had a tendency to overstate what he did. If the intention was to rent the unit out, and a builder was involved, it is likely that a builder would carry out the work rather than a person with no building qualifications. Mr Van Rensburg’s case was that he was working almost full time – seven days a week – in the café during this period. It also seems quite clear that the prospect of Mr Van Rensburg renting the property was a relatively brief one, perhaps making it unlikely that a prospective tenant would be permitted to carry out substantial works.

Mr Van Rensburg also gave some quite confusing evidence in cross-examination as to how long he held the belief that he could live in the Fairview Avenue Unit rent free – ranging from a few weeks to a few months. This evidence bears principally on Mr Van Rensburg’s unreliability as a witness.

He also suggested that he was ultimately offered to rent the property at 2/210 The Entrance Road “as compensation”. It was clear, however, that he was to pay rent at this property. The evidence makes no sense.

This is alleged to have occurred in late 2014 in the Residence. John and Lola requested Mr Van Rensburg to move into the Residence to look after them as they felt very unsafe and were worried someone would break in and kill them. Mr Van Rensburg says he agreed and then moved into the third bedroom.

Counsel for Mr Van Rensburg conceded that it was not necessary for the Court to decide whether this representation was made because it was simply an offer by John and Lola, an invitation with no promise of anything as a result.

Again, there is nothing to corroborate Mr Van Rensburg’s evidence. In circumstances where I have found that I am not persuaded that Mr Van Rensburg in fact moved into the Residence in late 2014, I am similarly not actually persuaded that John and Lola asked him to move in as he has asserted. Had he been living there full time as he contended, it is inconceivable in my view that none of the Rafts would have noticed.

There is also, in my view, an air of unreality about Mr Van Rensburg’s version of events where the stated reason for wanting him to move in was a concern by John and Lola for their safety. There is nothing to support this as being a concern at the time.

Mr Van Rensburg’s conduct after he apparently agreed with the request to move in, in not giving up his existing rental accommodation and continuing to pay rent is inconsistent with any representation being made that he could live at the Residence long term. Given Mr Van Rensburg’s apparent financial circumstances, I would have expected him to give up his rental accommodation if he could live for free elsewhere.

There is also the additional, and perhaps inconsistent, evidence given by Mr Van Rensburg as to his discussion with Lola about qualifying in aged care to enable him to look after Lola.

Having regard to all of these matters, I am not persuaded that the second representation was in fact made.

The third to fifth representations should be considered together. They all have the same features:

The inducement changed, indeed increased, in each of the three representations. In the third representation, the inducement was “we will look after you. You will always have a place to live, we want you to live with us.” In the fourth representation, it was increased to “we will make sure that you are secure financially and you will always have a home for as long as you live. You will be given a home and looked after when we die.” The final inducement in the fifth representation was that John and Lola “will make sure you have somewhere to live for the rest of your life and you will have enough money for the rest of your life”.

Again, there is nothing to corroborate Mr Van Rensburg’s account.

The starting point is that he was already living at the Residence and Stephen requested he leave. Given that I am not actually persuaded that he was living at the Residence full time as at early 2015, I am also not actually persuaded that the representations were made.

Each of the representations also begins with Stephen speaking to Mr Van Rensburg in a threatening manner and intimidating him. It was not seriously in dispute that Mr Van Rensburg was much larger than Stephen – both in weight and stature. It was also not seriously in dispute that in the year prior to the alleged threats, Stephen had suffered a stroke which affected him physically. Mr Van Rensburg also did not strike me as a man who was easily physically intimidated. Given these matters, I find it difficult to accept that Stephen intimidated Mr Van Rensburg.

On Mr Van Rensburg’s account, it is also not explained why Stephen would simply stop intimidating Mr Van Rensburg and allow him to stay. On Mr Van Rensburg’s account, Stephen was persistently threatening Mr Van Rensburg for a period to get him to leave, yet he agrees to stay because of the promises made to him by John and Lola who by then were well into their eighties.

It is more likely, in my view, that the threats never occurred.

There is also the curiosity that, notwithstanding that he had apparently been promised a home for life and financial security after John and Lola died, Mr Van Rensburg continued to rent 2/210 The Entrance Road. This is in circumstances where Mr Van Rensburg apparently said to John and Lola as part of the discussion that led to the third representation that he was not earning any money. I also do not accept Mr Van Rensburg’s contention that the bedroom was not big enough to hold all of his things so he kept renting 2/210 The Entrance Road. If all he required was storage, there were likely much cheaper options. The evidence also demonstrated that Mr Van Rensburg appeared to be using one of the disused cool rooms at the Residence as his own storeroom.

If Mr Van Rensburg believed that he had any security of tenure and financial security, given his apparent straightened financial circumstances, he would have ceased renting 2/210 The Entrance Road and saved money. His continued renting tells against the third to fifth representations being made.

It also tells against Mr Van Rensburg ever really relying on any such representations assuming, contrary to the above, they were in fact made.

The third representation also has Mr Van Rensburg asserting that he was not earning any money and was not safe and that John said he would look after Mr Van Rensburg. As emerged in cross-examination, Mr Van Rensburg had his inheritance which, on his own admission he was living off at the time. There was also nothing to provide any basis for Mr Van Rensburg not to be safe and it is inherently unlikely that John, an elderly and vulnerable man, would offer, with Lola, to look after him.

I do not regard Mr Carson’s account of what John said to him on 17 December 2020 as bearing in any significant way on whether the third to fifth representations were made. No direct statement was made by John to Mr Carson about any promises previously made by John to Mr Van Rensburg. None of the other statements provide any inferential support.

The statements to John transferring the Residence and café to Mr Van Rensburg speaks only to future intent and in any event was obviously something that John could not achieve.

Whilst the letter which Stephen wrote to the Wyong Hospital in November 2020 alludes to there potentially being a difference of opinion between Lola and the Raft family as to where she would like to live on her discharge, with Lola likely wanting to return to the Residence, and that this was an aspect of the case theory advanced by Mr Van Rensburg as to why John and Lola wanted Mr Van Rensburg to stay and why Stephen wanted him out, this does not provide any sound basis to conclude that the representations were made.

It also seems to me that neither John nor Lola would make promises of the kind alleged, particularly giving Mr Van Rensburg some life tenure and financial security. Neither John’s earlier 2019 will, John’s Will nor Lola’s Will include any legacy or life estate of the kind that Mr Van Rensburg alleges that each of John and Lola promised. The evidence seemed quite clear that Lola and John’s assets were to pass to blood relatives only.

I do not place much reliance on the fact that at the time that Mr Van Rensburg alleges that these representations were made – March/April 2015 – Stephen and Linda were overseas. Mr Van Rensburg was not so definite as to the dates of the alleged representations. There are more fundamental reasons for rejecting Mr Van Rensburg’s account.

In the absence of any corroborating material, I simply cannot be actually persuaded that the representations were in fact made. I find that they were not.

I am comfortably satisfied that Mr Van Rensburg did considerable work in the café. I reach this conclusion having regard to the positive observational evidence given by a number of witnesses, coupled with an acceptance on the part of the Rafts, particularly Stephen, that neither John nor Lola were capable of performing this work. Whether the work was as much as Mr Van Rensburg says he did it is probably unnecessary to decide.

The starting point is, obviously enough, the fact that the café remained open for business up to and beyond Lola’s death. It is clear that the business was not profitable and that it was really a form of therapy for John and Lola, but the fact is that it remained open and customers were in fact served, with at least coffees being made and some food being cooked.

There does not appear to be any suggestion that Lola was capable of working during any of the period that Mr Van Rensburg was around.

Stephen was cross-examined at some length in relation to the matters that Mr Van Rensburg contends that he did, and Stephen’s defence to those matters. Stephen’s denial of certain matters was, for the most part, not based on any direct observation but what he had been told by others, or inferences or conclusions he drew. An example of the latter was the denial that Mr Van Rensburg swept the mats behind the counter. This was based on the fact that when Stephen observed the mats – I infer in 2021 – they were pretty dirty, suggesting they had not swept for some time. However, Stephen admitted that he did not know what the position was between 2015 and 2020.

Stephen admitted he did not know, for example, whether Mr Van Rensburg cleaned the hotplates or the ceiling fans between 2015 and 2020.

When asked who would have cleaned the kitchen if it weren’t Mr Van Rensburg, he responded “it certainly wasn’t John.”

Stephen also admitted that John would not have been able to do the cooking in 2017, although Mr Van Rensburg possibly could have done that.

Mr Van Rensburg gave considerable evidence as to what work he did in the café. That evidence was supported by the general observational evidence given by Mr Stevenage, Mr Sherar, Ms Couch and Ms Thomas.

The principal area of dispute concerned whether Mr Van Rensburg performed certain additional work – which may loosely be described as capital improvements. This work allegedly included painting the skirting boards and the freezer, replacing the carpet, replacing tiles, and grouting the bench. Stephen says that he witnessed a family friend, Damon Cooper, a builder doing the work.

In circumstances where there is the contrary evidence of Stephen and I do not accept the evidence of Mr Van Rensburg, who had a tendency to overstate matters, I do not accept that Mr Van Rensburg carried out the improvement works that he contends. This finding is not, however, of any real significance to the determination of the ultimate issues.

I accept however, that from about 2014, Mr Van Rensburg “worked” in the café. The work that he did was broadly along the lines that he deposed to and increased over time. I do not accept that it was likely full time, seven days a week from the early period, although I accept that for a substantial period of the time in question – 2014 to late 2020 – Mr Van Rensburg was present at the café almost full time performing work as and when need be. As trade died off in the later years this meant that there was less and less to do, and perhaps very little to do when regard is had to the financial records, but Mr Van Rensburg was doing it.

I have referred above to the fact that Mr Van Rensburg “worked” in the café to make it clear that this was not a traditional employment arrangement. Rather, it appears to have begun with Mr Van Rensburg hanging around the café and gradually performing tasks either of his own initiative or as John became unable to do them. What was being done was not as part of some truly commercial enterprise but rather as part of some mutually beneficial therapy. It gave each of John, Lola and Mr Van Rensburg something to do. John and Lola also had a very substantial sentimental attraction to the café remaining open and Mr Van Rensburg’s involvement allowed this to occur.

This appears to be the area where there was the most dispute.

On the one hand, Mr Van Rensburg’s contention was that right from the very beginning, in about late 2014, he was providing considerable care for Lola and, to a lesser extent, John.

On the other hand, I did not understand the defendants to contend that Mr Van Rensburg did not provide any care for Lola, but rather it was the case that he provided nowhere near the care he says he provided and for nowhere near as long as he said he did, and what he did in fact do, was not done very well.

The positions of Lola and John are obviously different and must be considered separately. The conclusions to be drawn from all of the evidence are a little complicated by the fact that, at times, Mr Van Rensburg was cross-examined on a basis inconsistent with the evidence being led by the Rafts. For example, it was put to Mr Van Rensburg that he was aware that Stephen and Linda wanted Lola to go into a care facility yet both Stephen and Linda (and Victoria and Therese for that matter) denied this. Further, that Mr Van Rensburg was aware from 2017 onwards that Lola was not able to make decisions in her best interests, yet the Rafts said it was much later.

A useful starting point is to consider the care which Mr Van Rensburg pleaded that he provided for Lola, and the defendants’ response.

In relation to personal care, Mr Van Rensburg contends that acting in reliance on the alleged representations, between December 2014 and November 2020, Mr Van Rensburg provided personal care for Lola. The defendants of course deny that the representations were made and that John and Lola induced Mr Van Rensburg to provide personal care for Lola. In respect of the six items of personal care allegedly provided, the position is as follows:

In relation to domestic support, the particular items alleged and the response is as follows:

There are thus quite limited admissions that certain items were carried out “on several occasions”.

Mr Van Rensburg gave considerable oral evidence as to what he says he did. He was, however, an unreliable witness in a number of respects.

Some support for the care provided was given by Mr Stevenage, Mr Sherar, Ms Couch and Ms Thomas. The direct observational evidence was, however, quite limited, although it does provide some support for the case advanced by Mr Van Rensburg.

Against this evidence is the evidence of the Raft family which, in essence, was that Lola was largely able to look after herself until the COVID pandemic hit. It must be appreciated, as the Raft witnesses did, that they were obviously only at the café/Residence periodically and thus were not aware of what was happening whilst they were not there. It was also not in dispute that Lola was not capable of running errands or purchasing supplies herself.

In relation to the personal care allegedly provided, the most reliable evidence is that of Dr Lee. I have set out in detail above the relevant extracts from his records. Most relevantly:

As set out above, these records are consistent with a marked decline in Lola’s health in the first half of 2020, such that Lola was very heavily reliant on Mr Van Rensburg during this period. It is difficult, however, to reach any firm conclusions as to what assistance Mr Van Rensburg was providing prior to then for Lola.

It is reasonable to infer that after Mr Van Rensburg moved into the Residence (2017 on my finding), and principally by reason of the effects of Lola’s advancing years, that Mr Van Rensburg did more for Lola. I am not satisfied on the evidence – and principally the lack of any reference in Dr Lee’s GP notes coupled with the Raft family’s positive evidence as to Lola’s condition – that Mr Van Rensburg was assisting Lola greatly with toileting and washing prior to late 2019/early 2020. Whilst he assisted her with washing during 2020 it would appear, based on her condition when she was admitted to hospital in November 2020 (caked dirt in her belly button and under her fingernails), that this was not overly successful. Mr Van Rensburg admitted in cross-examination that he did what he could.

I am satisfied, on the whole of the evidence, and the inherent probabilities, that during the period from September 2017 to November 2020, Mr Van Rensburg:

I am not satisfied that the care provided was to the extent that Mr Van Rensburg contended. In particular, I do not accept that the work commenced in December 2014 such that Mr Van Rensburg was Lola’s full time carer from this time onwards.

I deal firstly with what is pleaded and the response.

The time period alleged is slightly larger than that applicable to Lola – December 2014 to early August 2021. The defendants deny that any of the representations were made or that John and Lola induced Mr Van Rensburg to provide personal care to John.

In relation to the particular items of care, the position is as follows:

In relation to the four items of domestic support:

Again, the most valuable repository of material in relation to John’s medical condition, and thus the care that was provided by Mr Van Rensburg are the medical records, particularly those of Dr Lee. I have set out the extracts from Dr Lee in relation to John above. They are more notable for what they do not say. They do not record any matters that would require any considerable assistance from Mr Van Rensburg. It also seems quite clear that John regularly saw Dr Crook, primarily in relation to the wounds on his legs.

In terms of John’s personal care, I am satisfied that Mr Van Rensburg occasionally applied the ultrasound machine to John’s shoulders, took him to medical appointments when needed, assisted in changing the dressings on John’s legs (although this appears to have been regularly done by Dr Crook), washed his feet and changed his socks. Mr Van Rensburg was also responsible for cooking the meals at least from the period that he moved into the Residence in September 2017.

Having made findings about the key factual issues, I now turn to consider the various claims advanced by Mr Van Rensburg:

Counsel for Mr Van Rensburg properly described these claims in opening written submissions as “cascading claims”. As was there submitted, should Mr Van Rensburg succeed on the constructive trust/estoppel claim and depending on the relief awarded, then the other claims may not need to be determined. Should Mr Van Rensburg fail on the constructive trust/estoppel claim and succeed on the PRA claim, then the claims for further provision will not need to be determined.

The principal claim made by Mr Van Rensburg in his statement of claim was to seek a constructive trust over the Residence, entitling Mr Van Rensburg to reside during his life in that property. This relief was sought based on a claim of proprietary estoppel by encouragement. It became apparent during the hearing that Mr Van Rensburg was not particularly wedded to the Residence (given that it appeared that it would no longer be permissible to live in that property) and as such the claim extended to another property owned by the defendants or another property in the area, which could be purchased by the defendants for Mr Van Rensburg.

As Meagher JA (with whom Leeming A and Payne JJA agreed) observed in Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (Q v E Co) at [15], proprietary estoppel by encouragement “is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff…Whether any, and if so what, representation has been made is to be judged “objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee””.

As was recently observed by Ward P (with whom Leeming A and Kirk JJA agreed) in Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 (Kramer v Stone) at [77], proprietary estoppel by encouragement is one of a number of discrete equitable doctrines falling within the rubric of “equitable estoppel”. The elements common to such doctrines are encapsulated in the well-known formulation of Brennan J in Waltons Stores (Interstate) v Maher (1988) 164 CLR 387 at 428-429.

In Carter v Brine [2015] SASC 204 (Carter v Brine), Blue J set out (at [326]) the following summary of the matters to be satisfied in a claim of proprietary estoppel by encouragement:

It must be appreciated that these elements or matters should not be applied in a mechanical fashion, but rather provide a useful check: see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [166] per Gleeson JA (Beazley P and Leeming JA agreeing).

Counsel for the defendants contended in relation to the first of the matters set out above, that even if the Court was satisfied that any of the representations were made, the representations were too vague and uncertain. I deal with the factual contention below.

For the present purposes, I proceed on the basis that the law in this regard is as recently stated by Ward P in Kramer v Stone at [84]-[87]:

In Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 (Thorner v Major), Lord Walker of Gestingthorpe stated at [56] (in a passage approved by Bathurst CJ (with whom Bell P and Leeming JA agreed) in Trentelman v Owners Strata Plan No 76700 (2021) 106 NSWLR 227 (Trentelman) at [124]) that “to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity…is hugely dependent on context.”

As regards to the elements of reliance and inducement, reliance is a fact to be found, and it is not necessary that the relevant assumption be the sole inducement operating on the mind of the party setting up the estoppel: see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58] and [71]. It need only be a contributing cause: Sidhu v Van Dyke at [71]-[73] and [90].

The test for reliance is that a plaintiff must show that he or she “would have acted differently” but for the assumption: Sidhu v Van Dyke at [90]ff per Gageler J; Kramer v Stone at [92] per Ward P; Q v E Co at [88] per Meagher JA.

This is tested by asking what the plaintiff would have done if, the promise or assurance having been made, the plaintiff had been told that it would not be kept: see Q v E Co at [89] per Meagher JA.

The question of causation is ordinarily appropriately framed as being “despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [that party] did had the relevant assumption not been induced”: see Sidhu v Van Dyke at [93] per Gageler J.

The standard of proof for detrimental reliance is an objective standard: see Sidhu v Van Dyke at [69] per Gageler J; Kramer v Stone at [199] per Ward P.

In terms of detriment – this is not presumed but must be established on the balance of probabilities. The relevant detriment is not the loss flowing from the mere non-fulfilment of a representation or promise, but rather what must be established is that the plaintiff has suffered (or will suffer) detriment if the defendant is permitted to resile from his or her representations or promises. The concept of detriment is neither narrow nor technical and is assessed at the time a party seeks to depart from the assumption or expectation: Kramer v Stone at [94]-[96] per Ward P.

Detriment sufficient to support an estoppel by encouragement need not involve expenditure of money on the property the subject of the estoppel or otherwise be capable of financial quantification. Detriment may flow from having significantly changed the course of one’s life. The detriment must be sufficiently substantial such that it would be unconscionable for the party who gave the assurance to depart from it. There may be cases in which an estoppel is established but the disproportion between the detriment and the expectation is so great that conscience does not require the party estopped to make good the assurance: see Q v E Co at [125]-[127] per Meagher JA and the cases there cited.

Authority forecloses any attempt to quantify all forms of advantage and disadvantage when making a comparison between the relying party’s position in fact and their position as it might have been in the absence of reliance on the encouraged expectation: Q v E Co at [156] per Meagher JA.

As Gageler J observed in Sidhu v Van Dyke at [92] “there can be no real detriment if the party asserting the estoppel would have been in the same position in any event.”

The element of unconscionability currently involves a holistic approach encapsulated by Allsop P in Delaforce v Simpson-Cook (2010) 78 NSWLR 483 (Delaforce v Simpson-Cook) at [3]:

The proprietary estoppel claim fails in limine because I am not satisfied that any of the alleged relevant representations – being the third to fifth representations – were in fact made. I have set out above my reasons as to why I have reached this conclusion.

Against the possibility that I am subsequently found to be wrong in this regard, I now consider the further matters – as set out in Carter v Brine above.

The next issue to consider is whether the third to fifth representations were too ambiguous to give rise to an estoppel.

I have already set out the relevant representations. There are at least subtle differences between them. Each involves a request for Mr Van Rensburg to remain living in the Residence looking after John and Lola with an inducement offered if he did. That inducement increased, from:

As set out above, Ward P in Kramer v Stone recently stated that a representation or promise has been said to be sufficiently clear “if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely.” The necessary clarity is hugely dependant on context: Thorner v Major at [56] per Lord Walker.

In my view, each of the relevant representations is sufficiently clear insofar as they convey that Mr Van Rensburg would have a place to live for the rest of his life. It does not matter, in my view, that there was no precise statement as to where Mr Van Rensburg might live or that the property interests of John and Lola may change over time: see Thorner v Major at [95]-[98] per Lord Neuberger (referred to with approval by Bathurst CJ in Trentelman at [125]).

The representations – if made – would relevantly have conveyed to Mr Van Rensburg that John and Lola would provide him with accommodation for the rest of his life.

Insofar as the fourth and fifth representations conveyed that Mr Van Rensburg would be looked after when John and Lola die, would be financially secure and would have enough money for the rest of his life, they are too vague and uncertain. They are really devoid of any constant. How much money would be provided? Against what yardstick is the alleged financial security to be measured – whatever Mr Van Rensburg desired? Neither is a representation that Mr Van Rensburg will have some legal or equitable interest in any particular asset or assets: see Layton v Martin [1986] 2 FLR 227 at 238-239 per Scott J.

The next issue is whether Mr Van Rensburg formed an assumption that he will be provided by John and Lola with a house for the rest of his life.

I am not satisfied that Mr Van Rensburg in fact formed that assumption. Had he formed that assumption, there is no logical reason why he would have continued to rent the property at 2/210 The Entrance Road. On any view, Mr Van Rensburg was a man of extremely limited means and the property at 2/210 The Entrance Road was costing him substantial money. I do not accept Mr Van Rensburg’s evidence that the reason why he continued to rent the property at 2/210 The Entrance Road was to store his furniture etc because they would not fit at the Residence. Mr Van Rensburg had no difficulty in using the second (unused) cool room at the Residence as a storeroom.

The more probable explanation for Mr Van Rensburg continuing to rent the property at 2/210 The Entrance Road was because he never believed that he had any security of tenure at the Residence or somewhere else as provided by John and Lola.

The lack of any assumption being formed deals with the requirement of reliance as characterised by Blue J in Carter v Brine (the third matter).

The fourth matter identified by Blue J – described as inducement – is whether Mr Van Rensburg took action to change his position in reliance on the assumption.

It is to be remembered in this regard, that at the time that the third to fifth representations were made, Mr Van Rensburg was already living in the Residence and looking after John and Lola. This is a necessary factual assumption as it was the factual predicate, on Mr Van Rensburg’s case, for Stephen threatening him which led to John and Lola making the representations.

Mr Van Rensburg’s case was that he changed his position in two ways. First, by remaining at the Residence and continuing to look after John and Lola rather than pursuing other opportunities. Second, he contends that he did more for John and Lola – both in the café and in terms of personal care.

Mr Van Rensburg relied heavily in this regard on the decision of Nicholas J in Saliba v Tarmo [2009] NSWSC 581 (Saliba v Tarmo). Counsel for the defendants contended that the facts of the present case were so radically different from those in Saliba v Tarmo that the two simply aren’t comparable. Reference was made to the fact that in Saliba v Tarmo extensive representations were made regarding promises of financial provision whereas there are none in the present case.

Pointing to the lack of any representations in the present case does not assist on this aspect because I am dealing with this requirement on the assumption that the representations were in fact made.

Saliba v Tarmo involved a particular factual situation where, at the time of the relevant promises, the plaintiffs were already providing considerable care for the promisor. In so doing, they were motivated by friendship to provide the services and received no payment for them. One of the plaintiffs gave evidence that after the promises had been made to leave them one half of the promisor’s house, she felt that she had to take special care of the promisor because “she had left us half her house”. The other plaintiff said he “was even more keen to help her in every way afterwards she left me and my wife half of the property, I felt obliged to help even more.”

Based on this evidence, Nicholas J found (at [47]) that the plaintiffs changed their position on the faith of the representations in that the level of care, and the nature of general assistance provided were substantially more extensive than before the representations were made. At [48], Nicholas J found that there was sufficient detriment because the representations engendered in the plaintiffs the belief that they were duty bound to continue to provide the unpaid care. His Honour found a common intention constructive trust and also that the plaintiffs were entitled to the same relief by the application of the principles of equitable estoppel.

In Dable v Peisley, Ward J distinguished (at [243]) Saliba v Tarmo on the facts before her Honour on the basis that she was not satisfied that the plaintiffs continued providing services in reliance upon an assurance that, if they did, the deceased would leave them his estate, or pursuant to a sense of obligation to accede (and give priority within the family) to the deceased’s wishes, rather than that they did so in the hope (or expectation) that in those circumstances the deceased would not change his mind, but nonetheless appreciating that there was a risk that he might do so.

As Robb J stated in Lewis v Stewart (by his tutor Mayhew) [2018] NSWSC 1186 at [227] having referred to Ward J’s decision in Dable v Peisley distinguishing Saliba v Tarmo on the facts:

I am not satisfied in the present case that the continued and/or increased care provided by Mr Van Rensburg after the representations was in reliance on the assurance. Mr Van Rensburg maintained his separate residence (2/210 The Entrance Road) no doubt conscious that John and Lola were free to change their mind. There was also no evidence given by Mr Van Rensburg that what he did was out of some sense of obligation, only that he did more.

It is far from clear in the present case that Mr Van Rensburg would have acted any differently had he been told that the representations would not be kept: see Q v E Co at [89] per Meagher JA. There is no evidence that Mr Van Rensburg had any other opportunities at his feet. He had not worked for several years before reacquainting himself with the café. He admitted that he was at a loose end. The café provided him with something to do and was a mutual form of therapy for each of John, Lola and Mr Van Rensburg.

On the requirement of detriment, what must be established is that Mr Van Rensburg has suffered or will suffer detriment if the defendants are permitted to resile from the representations. The concept of detriment is neither narrow nor technical but must be sufficiently substantial that it would be unconscionable for the party who gave the assurance to depart from it. In Sidhu v Van Dyke at [84], the plurality referred to life changing decisions with irreversible consequences of a profoundly personal nature: see also Bosganas bht Michael v Bosganas [2024] NSWSC 1041 at [22] per Leeming JA. As Gageler J observed in Sidhu v Van Dyke at [92], there can be no real detriment if the party asserting the estoppel would have been in the same position in any event.

In the present case, the detriment is simply said to be that Mr Van Rensburg has not got what he was promised, has been kicked out of the Residence and not offered any alternative accommodation for life by the estates of John and Lola. Reference is made to Delaforce v Simpson-Cook at [53]-[78].

The defendants contended that Mr Van Rensburg would be in the same position even if the representations were not honoured.

I am not satisfied that Mr Van Rensburg would suffer any detriment if the representations were not honoured.

Whilst he will no longer have the free board and lodging that he had at the Residence/café or at some alternate residence, he will still be able to live at 2/210 The Entrance Road, a property he has continued to rent and was able to occupy at all times whilst he was living at the Residence/café. He is also no longer involved in working at the café or providing care for John and Lola.

Like the observations of Gageler J in Sidhu v Van Dyke, Mr Van Rensburg will be in the same position in any event.

Had I been satisfied that detriment would be suffered by Mr Van Rensburg if the representations were resiled from, I would have regarded the relief sought by Mr Van Rensburg as wholly disproportionate to the detriment suffered. The relief sought by Mr Van Rensburg included, given that it would appear to no longer be possible for the Residence to be occupied now that the café has closed, for a new property to be purchased by the Raft family for Mr Van Rensburg. A number of suitable example properties were included in evidence, being two-bedroom units near the ocean at The Entrance.

Purchase of the fee simple of a two-bedroom unit would be wholly disproportionate to any detriment. As set out above, the only aspect of the representations, had they been made, that could have been sufficiently certain to found an estoppel concerned Mr Van Rensburg having a place to live. These representations were made in the context of Mr Van Rensburg residing with John and Lola in the Residence which, by all accounts was very basic accommodation.

This is also in the context of Mr Van Rensburg not giving up his existing home – 2/210 The Entrance Road – on which he continued, and continues, to pay rent.

In these circumstances, even requiring Mr Van Rensburg to be granted a life estate by the Raft family in one of their existing properties or in another property to be purchased by the Raft family for Mr Van Rensburg to occupy, would be wholly disproportionate to any detriment suffered by Mr Van Rensburg.

The threshold issue in both the PRA claim against John’s estate and the claim for provision under the Act from Lola’s estate is whether there was a “close personal relationship” between Mr Van Rensburg and John and/or Lola.

Under the PRA, a “close, personal relationship” is a “domestic relationship” under s 5 and a party to a domestic relationship may apply to the Court for the adjustment of interests with respect to property: see Part 3 of the PRA. Under the Act, a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death is an eligible person: s 57(1)(f) of the Act.

The PRA and the Act define close personal relationship in essentially the same way.

Section 5 of the PRA provides:

Section 3 of the Act provides:

In both cases, a close personal relationship requires:

At issue in the present cases is whether any personal services and/or domestic support provided by Mr Van Rensburg was provided for “fee or reward” under the PRA or under the Act – being a disentitling circumstance. What is meant by these expressions was considered by Leeming JA in Saravinovski v Saravinovska [2017] NSWCA 85 (Saravinovski v Saravinovska) at [19]ff. At [28], Leeming JA stated:

At [35], Leeming JA referred to the observations of the trial judge that a party wishing to rely on the exclusion must satisfy the Court that there is a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care, for the purpose of eliciting the identified fee or reward – the arrangement is the origin of, or motive for, what would otherwise be a close personal relationship under the PRA and is to be contrasted with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship. Leeming JA then continued at [36]:

At [39], Leeming JA stated:

At [41], Leeming JA stated:

Assuming a domestic relationship exists, s 14 of the PRA provides that a party to a domestic relationship may apply to, relevantly, the Supreme Court for an order under Part 3 of the PRA for the adjustment of interests with respect to the property of the parties to the relationship.

“Property” is defined in s 3(1) to include real and personal property.

Section 20(1) of the PRA provides:

The starting point in relation to s 20 is what was said by Gleeson CJ and McLelland CJ in Eq (Meagher JA to like effect) in Evans v Marmont (1997) 42 NSWLR 70 at 78-79:

In Kardos v Sarbutt [2006] NSWCA 11, Brereton J (with whom Basten JA and Hunt AJA agreed) stated at [29]-[38]:

In Sharpless v McKibbin [2007] NSWSC 1498 (Sharpless v McKibbin), after referring to what Wilson J had said in Mallet v Mallet (1984) 156 CLR 605, Brereton J stated at [70]-[71]:

Brereton J built on what he said at [71] in Sharpless v McKibbin when sitting as a member of the Court of Appeal in Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260. At [11], his Honour (with the agreement of Beazley and Tobias JJA) stated:

The first issue is whether there was a close personal relationship between Mr Van Rensburg and John.

As set out above, in relation to John, I have found that from about September 2017 until early August 2021, Mr Van Rensburg lived at the Residence and provided John with some domestic support and personal care. That domestic support and care included occasionally applying the ultrasound machine to John’s shoulders, taking him to medical appointments when needed, assisting John in changing the dressings on John’s legs, washing his feet and changing his socks. Mr Van Rensburg was also responsible for cooking the meals.

John and Mr Van Rensburg were living together for a little less than four years, and Mr Van Rensburg was providing John with domestic support and personal care.

The issue that then arises is why was Mr Van Rensburg doing this – was it for fee or reward?

Given that I have rejected the proprietary estoppel claim including on the basis that I am not satisfied that any of the third to fifth representations were in fact made, the promise of reward embedded in the alleged representations – having a place to live and otherwise supported financially for life – is to be ignored for this purpose. Had I been satisfied that the representations were in fact made, it would have been clear that the domestic support and personal care was being provided for fee or reward.

Once the alleged representations are ignored, the position is one where Mr Van Rensburg started visiting the café in late 2013/early 2014 when he had nothing else to do, he then started performing some tasks helping out in the café and his involvement grew from there whereby he was “working” almost full time in the café and from September 2017, he was living in the Residence and providing some care for Lola and, to a lesser extent, John. It seems quite clear that at least for the period whilst he was living in the Residence he was living rent free and was also being provided with free food.

In these circumstances, was he providing the domestic support and personal care for fee or reward? Whilst the question is ultimately a factual one, unlike the situation that existed in Saravinovski v Saravinovska (discussed above) it is difficult to explain the care which Mr Van Rensburg provided as being an incident of any close personal relationship which Mr Van Rensburg had with John such that the free board and lodging is merely an incident of that relationship.

Mr Van Rensburg effectively moved into the Residence, not as a result of any request by John and/or Lola or out of any close affection for them, but more because it was convenient for him to do so. Working in the café provided a form of therapy for all concerned – it certainly gave Mr Van Rensburg something to do. It also provided him with free food. In this regard, I reject Mr Van Rensburg’s contention that the three of them were like family or that Mr Van Rensburg had any particularly close affection for John and/or Lola.

Whilst I am not satisfied that any of the third to fifth representations were in fact made, I am comfortably satisfied that Mr Van Rensburg saw the prospect of, and hoped for, some personal gain out of what he was doing for and with John and Lola, in addition to the free board and lodging he was receiving. If nothing further eventuated, Mr Van Rensburg was content with the free board and lodging and something to do.

Mr Van Rensburg was aware that John and Lola were obviously quite elderly and vulnerable. They were quite powerless to refuse his offers of help.

The domestic support and personal care provided by Mr Van Rensburg for John was provided for fee or reward. There was thus no close personal relationship for the purposes of the PRA.

If I am wrong in this conclusion, I turn now to consider what, in the exercise of my discretion, order – if any – should be made under s 20 of the PRA.

The factual background against which this should be assessed is, as set out above, that John and Mr Van Rensburg lived together for a little under four years and Mr Van Rensburg provided certain support and care for John including ultra-sounding his shoulders, assisting with the changing of dressings on his legs, taking him to medical appointments and cooking him meals. In return, Mr Van Rensburg received free board and lodging as well as the company of John and Lola, all at a time when it appears he was very much at a loose end. The work which Mr Van Rensburg carried out in the café enabled the business to remain open and trading, although it was certainly not trading at a profit during this time.

The nature of the relationship is such that only limited assistance is obtained from the authorities discussed above in the context of de facto relationships where a three-step approach is set out. The question is what is just and equitable having regard to the contributions of Mr Van Rensburg in the respects mentioned in s 20(1)(a) and (b).

In circumstances where it was clear that Mr Van Rensburg’s contributions, such as they were, had no impact on the acquisition, conservation or improvement of any of the property of John, counsel for Mr Van Rensburg focussed on Mr Van Rensburg’s contribution to John’s welfare (s 20(1)(b)).

Whilst the domestic support and personal care which Mr Van Rensburg provided had some impact on John’s welfare, I would not assess that impact as substantial and certainly not so substantial as to conclude, in all of the circumstances, that it is just and equitable to adjust property interests.

The close personal relationship lasted a little under four years. Whilst John received some benefit from the care and support provided by Mr Van Rensburg, and that this to some extent contributed to the overall arrangement which included the café remaining open and John’s overall welfare including because he was being fed, Mr Van Rensburg also benefitted in that he was receiving free board and lodging, not to mention the fact that “working” in and around the café gave Mr Van Rensburg something to do when he was otherwise at a loose end.

Having regard to all of the circumstances, had I been satisfied that there was a close personal relationship for the purposes of the PRA, I would not have been satisfied that it is just and equitable to make any orders under s 20 of the PRA.

The principles relevant to Mr Van Rensburg’s claim on Lola’s estate under the Act were not in dispute. I recently summarised the principles in Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 (Bradley v Irvine) at [167]-[174] and Dighton v Norwood [2024] NSWSC 318 at [87]-[107].

As Mr Van Rensburg was not a natural child of Lola, for the Court to have jurisdiction he needed to establish:

As to (a), “close personal relationship” is defined in s 3(3) of the Act as “a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.” Under s 3(4), it is a disentitling circumstance if the domestic support and personal care is provided for fee or reward.

An important issue in the present case is whether Lola was living with Mr Van Rensburg at the time of Lola’s death. Mr Van Rensburg’s contention was that, notwithstanding that at the time of her death, Lola had been living in respite care, having lived with Stephen and Linda for a period after she was discharged from hospital, for the purposes of the Act, she was living with him at the time of her death.

Reliance was placed on Skarica v Toska [2014] NSWSC 34 (Skarica v Toska) at [42] per Lindsay J and Hayes v Marquis [2008] NSWCA 10 (Hayes v Marquis) at [76]-[79] per McColl JA as cited in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 (Sadiq v NSW Trustee and Guardian) at [247].

In Skarica v Toska, Lindsay J found that the plaintiff and the deceased were living together at the time of the deceased’s death (18 March 2012) even though in late 2011 the deceased was hospitalised and on 16 February 2012, she was transferred to a nursing home where she died about one month later. At [42], Lindsay J stated:

Neither Hayes v Marquis or Sadiq v NSW Trustee and Guardian address the relevant question of whether Lola and Mr Van Rensburg lived together at the time of death. The observations of McColl JA in Hayes v Marquis at [76]-[79] more concern the concepts of “living together” for the purposes of the Act.

In relation to the need for “factors warranting”, I recently summarised the law in Bradley v Irvine at [171]-[174]. There must be circumstances which, when added to the facts that make the plaintiff a natural object of testamentary recognition.

The relevant issues are as follows:

I deal with each of these issues in turn.

As to the first issue, I conclude that at the time of Lola’s death she was not living with Mr Van Rensburg at the Residence. She was living with Stephen and Linda at their house.

The relevant facts were not in dispute.

Lola was admitted to hospital in early November 2020. She was in extremely poor health at the time. She weighed 42 kilograms. There was dirt under her fingernails and in her belly button.

Stephen wrote a letter to Wyong Hospital dated 18 November 2020 whilst she was in the hospital. He expressed the view that the Residence was “an inappropriate and unsafe space for [his] mother to return to once she has been discharged”. He also set out his concerns as to Mr Van Rensburg’s care of Lola and expressed his preference for Lola to move in with his family at Erina Heights.

This preference was honoured and on 2 December 2020, Lola was discharged into the care of Stephen and Linda to live with them at their home. This does not appear to have been a short term or temporary decision, such that Lola would at some stage return to live at the Residence. Nor does it appear that Lola was in such poor health at the time of discharge that her death was thought to be imminent.

The circumstances are properly characterised as a decision having been made that after discharge she would live with Stephen and Linda such that her home would be with them at Erina Heights.

Lola remained living at Erina Heights with Stephen and Linda until March 2021 with the assistance of some nursing care for one hour a day, two to three days a week. In March 2021, she went into respite care while Stephen recovered from kidney stones and because her care needs were not able to be met by Stephen and Linda. She passed away on 17 May 2021.

The facts of the present case are distinguishable from those in Skarica v Toska where the deceased was hospitalised and then went into a nursing home. The significant difference in the present case is the decision for Lola to live with Stephen and Linda. That was her home from then on.

The fact that Lola and Mr Van Rensburg were not living together at the time of Lola’s death means that Mr Van Rensburg is not an eligible person under s 57(1)(f) of the Act.

Against the possibility that I am wrong in this conclusion, I consider the remaining issues in relation to Mr Van Rensburg’s claim on Lola’s estate under the Act.

The next issue is whether the domestic support and personal care was provided by Mr Van Rensburg for fee or reward. The position in this regard is relevantly indistinguishable from the position in relation to John. For the reasons set out above I am satisfied that the domestic support and personal care was provided for fee or reward.

The next issue is whether there are factors warranting the making of the application.

Are there circumstances which, when added to the facts that make Mr Van Rensburg an eligible person, make Mr Van Rensburg a natural object of testamentary recognition? The factors relied on must be such as to demonstrate a social, domestic or moral obligation on Lola to make some provision for Mr Van Rensburg: see Spata v Tumino (2018) 95 NSWLR 706 at [97] per Payne JA.

Again, this issue must be considered against the factual findings I have made above, including that I am not satisfied that any of the representations were made and that between 2014 to November 2020 Mr Van Rensburg provided some care for Lola, living in the Residence from September 2017 onwards.

I am not satisfied that there are any factors warranting the making of the application.

Putting to one side the alleged representations which I am not satisfied were made, there is nothing in the circumstances to make Mr Van Rensburg the natural object of Lola’s testamentary recognition.

It is of some significance that Lola made her last will on 20 September 2019. This was at a time when Mr Van Rensburg had been living at the Residence for about two years (on the Raft’s case or five years on Mr Van Rensburg’s case). No provision was made for Linda. Lola did, however, grant a life interest in one of her properties to Carol. Lola did not see any need to make any provision for Mr Van Rensburg in her will. Further, there is no evidence that Mr Van Rensburg ever made any effort to see Lola after she was discharged from hospital in November 2020, perhaps reflecting the closeness, or lack of closeness, in their relationship.

On the findings that I have made above, Mr Van Rensburg was providing some care for Lola at this time, and such care was increasing as Lola’s needs increased. The care which Mr Van Rensburg was to provide certainly increased in the early part of 2020 as Lola’s condition deteriorated and COVID prevented other family members visiting.

Further, given Lola’s condition when she was admitted to hospital in November 2020, it would appear that the care that Mr Van Rensburg was providing was either not that much or certainly what he did was not overly effective.

The relationship between Lola and Mr Van Rensburg evolved over time, beginning when Mr Van Rensburg began hanging out at the café in early 2013 at a time when he had very little else to do. This was also at a time when both Lola and John were quite elderly and vulnerable. The expansion in the role which Mr Van Rensburg played in Lola and John’s lives was not, on my findings, as a result of a request from Lola and John, but rather, just occurred over time with Mr Van Rensburg doing more over time, both working in the café, then providing some care for Lola and to a lesser extent John, then moving into the Residence. Mr Van Rensburg was benefitting from the relationship, not only in that it gave him something to do, but also because he received free board and lodging. Whilst Mr Van Rensburg no doubt hoped for greater financial reward, nothing was done by Lola and/or John to lead Mr Van Rensburg into believing he would receive any greater reward. This all occurred during a period when John and Lola were elderly and quite vulnerable.

There is nothing in the circumstances to create any social, domestic or moral obligation on Lola to make provision for Mr Van Rensburg.

I am conscious that some of the witnesses called in support of Mr Van Rensburg’s case referred to the relationship between Mr Van Rensburg and Lola and John as being “like family” or words to that effect – see in particular the evidence of Ms Thomas. Very little detail was given as to what conduct grounded such a conclusion, beyond such statements such as the way they spoke to each other or the way they treated each other.

I do not find this evidence as overly persuasive in circumstances where the events occurred many years ago, the evidence was being given by people who were periodic visitors to the café, and Lola and John were quite elderly and vulnerable and were no doubt happy to be assisted by whatever Mr Van Rensburg chose to do for them.

In circumstances where I am not satisfied that there are factors warranting the application, I am also not satisfied, essentially for the same reasons as rejecting the factors warranting contention, that a just and wise testator in the position of Lola, looked at in the light of the facts as they now exist, would have made provision for Mr Van Rensburg.

Had it been necessary to consider, contrary to all of the findings I have made above in relation to the claim under the Act on Lola’s estate, what order for further provision should be made in favour of Mr Van Rensburg, I would have determined that some further provision should be made. Lola’s estate is large. Mr Van Rensburg obviously has quite considerable needs. He lives in rented accommodation and has only modest superannuation. His future employment prospects are quite guarded, although he is likely to continue on his existing Newstart allowance and then will likely receive the aged pension.

Given his relatively short relationship with Lola, and the fact that the care he provided for Lola only increased in the latter period of their relationship – principally in the calendar year 2020 – a provision in the order of up to $750,000 would have been appropriate. This could be used by Mr Van Rensburg to purchase a home unit together with a sum to supplement any social security or other earnings.

For the reasons set out above, none of the claims advanced by Mr Van Rensburg succeed. Both proceedings should be dismissed.

I will hear the parties on costs and will thereafter determine any dispute on the papers.

The orders of the Court are: