Stojanovski v Stoyanovski

HIS HONOUR: The city of Bitola in North Macedonia [1] is known as the “City of Consuls”, reputedly because it was Bitola where most of the consulates of many countries were situated.

The defendant, the now late Rade Stoyanovski (Rade, also referred to as “Ray”), was born in Dobruševo, a village near Bitola, in 1934. Sadly, he lived his early and final years in an environment of conflict. Little is disclosed of his early childhood. However, his school-aged years coincided with contested control of the city in the early 1940s.

Rade married Danica Stoyanovski (Danica). Their eldest child, the first plaintiff, Dimce Stojanovski [2] (Dimce, also referred to as “Jim” or “Jimmy”), was born in Bitola in September 1959. Dimce is currently 65 years old.

The young family immigrated to Australia in 1960, no doubt looking for a fresh start in life, and settled in Mullumbimby, New South Wales. In 1961, Rade and Danica’s only other child, Susanna Stoyanovski (Susanna, also referred to in the evidence as “Suzie”), was born.

Rade and his family prospered and came to hold valuable commercial and residential property in both Mullumbimby and Sydney. One of those properties, being the family home at Palmer Close, Illawong (Illawong Property), has become the source of a dispute between the plaintiffs, Dimce and his wife Valentina Tusevska-Stojanovski (Valentina), and Rade, over the plaintiffs’ purported interest in the property.

In essence, the plaintiffs claim an interest in the Illawong Property on the basis of a proprietary estoppel, based upon various promises and representations said to have been made by Rade and Danica to the plaintiffs over several decades. The alleged representations evolved over time and formed part of what was said to be a larger family arrangement which essentially required Dimce to get married and have a family, after which the plaintiffs were required to work and care for Rade and Danica at home and in Rade’s property investment business in Mullumbimby in return for income, security and (eventually) inheritance, as I explain further below. While Rade is recorded as the registered proprietor of the Illawong Property, it is the plaintiffs who reside in the property with their three young children, as they have done for over two decades. From November 2021, Rade had engaged in several attempts to have the plaintiffs and their family vacate the property. Ironically, and unfortunately, the art of diplomacy though sensitive and tactful dealings, a hallmark of the consuls of their city of origin, has not been a characteristic of the interactions between Dimce and Rade in recent years.

For clarity, as is evident from above, I have taken the liberty, without intending any disrespect, to refer to the parties and the various members of their family (many of whom bear the same or similar surnames) by their given names.

On the hearing, Mr McGrath of counsel appeared on behalf of the plaintiffs and Mr Bilinsky of counsel appeared with Ms Boyle of counsel on behalf of Rade (who appeared at the hearing by a tutor). Counsel for both sides provided a written outline of submissions prior to the hearing and made oral closing submissions following the completion of evidence. Counsel for Rade also provided written closing submissions on the penultimate day of the hearing. For convenience, I will refer to the submissions on behalf of Rade as submissions by Mr Bilinsky. However, it was obvious throughout the hearing that Ms Boyle gave Mr Bilinsky considerable assistance, including in relation to the taking of objections and addressing them, which assistance should be properly acknowledged.

I will cite the evidence in the proceedings by reference to the Court Book (CB), transcript pages and exhibit numbers, and cite the submissions by reference to Mr McGrath’s opening written submissions dated 16 May 2024 (POS), Mr Bilinsky’s opening written submissions dated 15 May 2024 (DOS) and closing written submissions dated 23 May 2024 (DCS), and transcript pages.

At the time of the hearing, Rade was 89 years old. After the conclusion of the hearing, the Court was informed by the parties’ legal representatives that Rade had passed away on 16 October 2024. There was a contest over the appointment of a representative of Rade’s estate for the purposes of these proceedings, which I set out further below.

On the first day of the hearing, Mr Bilinsky on behalf of Rade filed in court, with leave, a cross-claim seeking vacant possession of the Illawong Property, to which he said Rade would be entitled if the plaintiffs’ claim were dismissed.

Quintessentially, cases of proprietary estoppel between family members give rise to difficult factual questions. As is the case here, such disputes are often founded in historic events which are undocumented, and viewed by the competing family members from different perspectives.

Attempting to distil reasons as to why certain things were done and whether arrangements between the parties were embarked upon and carried through because of parental expectation, storge, filial obligation, a request or an agreement, either singularly or in combination of such actuating factors, is notoriously difficult. The difficulty is compounded in circumstances where there is said to be a cultural overlay which is said to explain certain family conduct. In these proceedings, an overlay of Macedonian cultural traditions played a key part in each party’s case.

As will be seen below, it seems to me that the dynamics in the family relationships are at least in part explicable by reference to some elements of Macedonian tradition, or more particularly Rade’s perception of them.

The evidentiary focus was principally upon the relationship between Rade and Dimce as father and son, and naturally so. There appears to have been some form of estrangement in the relationship between Rade and Susanna between 2010 and 2018: CB 126[78], 312[62], 315[81]-[82]. That was not a real issue per se in the proceedings and (properly) was not explored in any great detail.

Part of the challenge in this case is to determine to what extent the conduct of Rade and the plaintiffs goes beyond what might be consistent with family expectations or cultural tradition and intrudes into an area where equity will bind the conscience of Rade such that he (or indeed his estate by his representative) ought to make good the alleged promises said to have been made to the plaintiffs.

In his paper “Evaluation of a proprietary estoppel claim to a family farm: Text, Context and Purpose” (Paper), STEP Queensland Annual Conference, 6 October 2023, Lindsay J has observed that resolving that challenge calls for an assessment of the conduct by reference to notions of reasonableness and proportionality:

After the parties notified the Court of Rade’s death, the matter was listed for mention before me. I was of the view that there needed to be some form of regularisation of the representation of Rade’s estate, and no party contended otherwise. I directed that the parties confer with a view to drafting an appropriate representative order in respect of his estate. Regrettably, the parties were unable to come to an agreed position on the representation of Rade’s estate in the proceedings. I subsequently directed that any party seeking to address the appointment of an appropriate representative of Rade’s estate file and serve a notice of motion returnable before me on 4 December 2024. Directions for any reply affidavits and submissions were also made.

On 12 November 2024, Rade’s solicitors filed a notice of motion seeking the following order:

John Robinson (Mr Robinson) had been acting as Rade’s tutor in these proceedings since March 2023. He is an accountant based in Mullumbimby who knew Rade since 1974, and was appointed as Rade’s attorney in 2021.

The parties provided competing affidavits and submissions in respect of the application for Mr Robinson’s appointment.

The plaintiffs raised a number of issues, including that the order sought under the notice of motion was “not in any way restricted” and it was not clear what actions Mr Robinson proposed to take in relation to his appointment. Questions were also raised as to Mr Robinson’s remuneration and indemnity from Rade’s estate in relation to his work as Rade’s attorney and conduct of the proceedings on Rade’s behalf. Assertions were also made as to Mr Robinson’s purported role in ongoing disputes between the parties ancillary to the subject-matter of these proceedings.

That all being said, on the hearing of the motion, I understood the principal concern of the plaintiffs to be that, if appointed under an order akin to that in the notice of motion, Mr Robinson would be effectively authorised to enforce any judgment against the plaintiffs in relation to the cross-claim for possession of the Illawong Property.

My response to that concern was essentially threefold:

Omitting notations and evidence read, the orders of the Court on 4 December 2024 were as follows:

Each of the plaintiffs affirmed affidavits in chief. In addition, the plaintiffs relied upon affidavits from the following deponents:

Rade did not give any evidence himself in these proceedings. However, he relied upon affidavits from the following deponents:

Susanna is married to Julian Moore (Susanna has no children of her own, while Julian has one child: T 186.33-.39). While Julian had been Rade’s enduring guardian since 2021, he did not give any evidence on his behalf.

There were other persons whom Rade, Danica and the plaintiffs had particular professional involvement with, but from whom neither side adduced affidavit evidence. Such persons included Paula Maree Fletcher and Cameron Bell, solicitors at Universal Law, Mullumbimby, who had previously acted for Rade in relation to his affairs. Ms Fletcher in particular witnessed Rade executing several significant documents in recent years, including his Will dated 14 June 2017 (CB 523-527), and corresponded on his behalf in relation to various relevant matters, including the sale of a property at Burringbar Street, Mullumbimby, referred to below. However, no point was taken at the hearing on the parties’ decisions not to adduce evidence from those persons.

A large number of the conversations said to have taken place between Valentina, Dimce and his parents were in Macedonian: CB 41[5], 110[5]. Attempting to reflect that fact, in their affidavits the plaintiffs have often set out a conversation with Rade or Danica in Macedonian and provided their English translation of the particular conversation immediately below. A number of the plaintiffs’ witnesses adopted a similar practice in deposing to conversations they say they had with Rade or Danica. Translation from one language into another is on one view both a science and an art. Sometimes, there are particular nuances reflected in slightly different choices of and emphasis upon words as between translators. However, no point was taken on the hearing to the effect that the English versions provided by the plaintiffs and their witnesses were other than substantially correct translations of the conversations in Macedonian to which they deposed. No other translations were proffered. Accordingly, in reciting the evidence below, I have only set out the English versions of the relevant conversations.

Initially, I was minded to reject certain evidence in Susanna’s affidavit referring to conversations with Rade (specifically, CB 305[22], 309[47], 310[54]) on the basis that it was inadmissible hearsay evidence: T 218.20-219.4. A question arose as to Rade’s availability to give evidence, given that he was appearing by a tutor in the proceedings.

In relation to the hearsay exception under s 63(2)(a) of the Evidence Act 1995 (NSW) (Evidence Act), cl 4 of Pt 2 of the Dictionary addresses the availability of persons. Relevantly for the present purposes, cl 4(1)(c) provides that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.

There does not appear to be a great deal of caselaw which bears upon the issue. During a luncheon adjournment, I reviewed a number of decisions.

There are at least two related decisions of Garling J which addressed circumstances in which a plaintiff had a tutor appointed to conduct litigation approximately 12 months before the hearing of the proceedings and sought to lead hearsay evidence consisting of previous representations made by her in statements made by her in conferences with her solicitor: see Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122 (Alzawy) at [4], [18]-[22]. Garling J concluded that the plaintiff was physically and mentally capable of giving evidence “in a general sense”, which was more than sufficient for her to be called to give evidence of the accident which was the subject of the proceedings: Alzawy at [39]. The hearsay evidence was rejected. However, subsequently, when the plaintiff was called to give evidence, Garling J found it necessary to refer to the plaintiff’s previous statements in any case, as her oral evidence was mostly non-responsive: see Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No 2) [2016] NSWSC 1123 at [37]-[40].

More recently, in Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 (Twigg), Stevenson J, noting that a tutor had been appointed for the first plaintiff (who had a cognitive impairment), observed that she would therefore not be available to give evidence in the proceedings: Twigg at [61]. It was common ground, in those circumstances, that his Honour should decide the application (being to dismiss the proceedings as an abuse of process) on the basis that the plaintiffs would succeed in having the first plaintiff’s affidavit and transcript evidence which had been read and heard in earlier proceedings admitted on the basis that the first plaintiff was not available for the purposes of s 63 of the Evidence Act: Twigg at [62].

Having had the benefit of looking at those decisions, after the luncheon adjournment I raised them with counsel.

As I understood him, Mr McGrath accepted that Rade was not competent to give evidence: T 225.18-.27. However, he then submitted that if Rade was not competent to give evidence directly, then “he should not be held to be competent to give it through hearsay”: T 225.33-.35. Further debate followed which I will not recite: T 225.37-228.23.

Eventually, I indicated that I would provisionally admit the material and give Mr McGrath an opportunity to cross-examine Susanna about her father’s capacity to give answers to questions. If, upon having cross-examined Susanna, Mr McGrath wished me to revisit the admission of the material and make a different ruling, he was at liberty to do so. On that basis, I admitted the relevant paragraphs of Susanna’s affidavit, being CB 305[22], 309[47], 310[54]: T 228.25-.33.

Mr Bilinsky submitted that the case advanced by the plaintiffs is an exercise in revisionism and reconstruction. He stated that their case depends wholly upon informal oral representations which are vague, imprecise and made in a family context. He emphasised that the representations are not corroborated by objective evidence and the plaintiffs have an obvious self-interest in the outcome of the proceedings: DCS [1(a)-(c)].

In particular, to the extent that the plaintiffs and other witnesses they called in support cited Macedonian cultural practices for the context in which the alleged agreement was forged, Mr Bilinsky submitted that what emerges is an implied understanding “based upon that cultural tradition that where the eldest son comes to live with his parents, the house automatically becomes his house and will be inherited by him”, which hope and expectation has been twisted into a representation alleged to bind the conscience of Rade “for all time”: DCS [1(d)-(f)].

In relation to the requisite standard of proof for determining the facts in issue in this case, s 140 of the Evidence Act provides:

That statutory standard requires “actual persuasion” of the occurrence or existence of a fact in issue, and not a mere mechanical comparison of the probabilities as between the competing accounts: Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47] per Gleeson JA (Bell CJ at [1] and Stern JA at [62] agreeing).

The frailty of human recollection is well-known, particularly where the issues in the proceedings focus on events and alleged statements made many years ago.

Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. The importance of this approach has been emphasised in two recent decisions of Leeming JA sitting at first instance.

In Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67, Leeming JA stated at [43]-[44]:

In Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018, Leeming JA stated at [15]:

It may also be of assistance to assess and weigh the evidence not only by reference to its immediate context, but also in the context of the total evidentiary mosaic in the case: Wild v Meduri [2023] NSWSC 113 at [336] per Hallen J.

As often happens, a particular difficulty in this case is that there are very few contemporaneous documents that bear upon the conversations said to have occurred between the plaintiffs and Dimce’s parents, and in particular those with Rade, some decades ago.

In light of that, my approach has been to (a) assess the evidence of the plaintiffs having particular regard to such contemporaneous documents that exist and what appeared to be uncontentious facts, (b) glean from the totality of the testimonial evidence (whether in affidavits or as tested in cross-examination) other facts which appear to be either commonly agreed or uncontentious and then (c) otherwise address the disputed material having regard to reliable contemporaneous documents, uncontroversial facts, the apparent logic of events and the inherent probabilities of life, bearing in mind the frailties of testimonial affidavit and oral evidence.

Mr Bilinsky submitted that certain of Dimce’s evidence (including in relation to his alleged investment of $25,000 in the Illawong Property, the dispute about which I set out in more detail below) was unsubstantiated by any documentation and not plausible: DCS [10].

He further submitted that there was inconsistency in Dimce’s evidence regarding whether:

Dimce gave his evidence in a relatively clear and concise way. My impression was that he was generally attentive to the questions asked. There was no obvious indication from his presentation or answers which tended to suggest that he was being dishonest.

At times, he made appropriate concessions. When pressed on his recollection of what Rade had said to him in conversations which occurred around 25 years ago, Dimce acknowledged that he could not remember the exact words, but he could remember the gist of the conversations: T 67.12-.24.

For reasons that I articulate more particularly below, there are some parts of his evidence which I accept and others which I reject. Parts of his evidence I doubted, including in relation to his use of a sum of $25,000 from the proceeds of sale of his share in a multiple occupancy property, the degree of his expenditure on the Illawong Property, the extent of his care for Rade and Danica, the extent to which he was denied investment opportunities (specifically in relation to the purchase of another property at Illawong) and the extent to which he sacrificed his artistic career. In those respects, detailed more fully below, I am not satisfied by his evidence to the standard required by s 140 of the Evidence Act. In certain respects which I detail below, I prefer the evidence of Susanna to the extent to which it conflicts with Dimce’s evidence.

Mr Bilinsky submitted that Valentina’s evidence in relation to being forbidden from finding work outside the family is not credible: T 326.12-.13. He further submitted that there was inconsistency between Valentina’s evidence and Dimce’s evidence in cross-examination regarding the time they spent in Mullumbimby. Specifically, he submitted that Dimce suggested that they were “really not there at all much”, whereas Valentina “started to obviously wind‑up for a long submission that they were actively working and spending at times months up there”: T 327.1-.10.

In her affidavit, Valentina deposed to recalling details of lengthy conversations (at times spanning several pages) in direct speech, usually prefaced with the phrase “words to the effect”. Such conversations were said to be with:

When pressed on her recollection of the first two conversations, Valentina acknowledged that they were not “real recollection” on her part or necessarily the “exact words” spoken, but she recalled “most of it” and they essentially reflected the “meaning” of what had been discussed: T 115.25-116.9, 124.34-.35. I take that to mean she essentially recalled the gist of those conversations.

There were other examples of Valentina “recalling” specific details of conversations without the prefatory phrase “words to the effect”. Whether the omission of that phrase in those cases was advertent was not made clear on the hearing.

The question of the proper form of affidavit evidence of conversations has been the subject of recent judicial comment: see e.g. Wild v Meduri [2024] NSWCA 230 at [243]-[254] per Bell CJ, [333]-[357] per Kirk JA, cf [282]-[332] per White JA; Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [119] per White JA (Simpson and Basten AJJA agreeing); Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [119]-[129] per Jackman J; Chen v Chu [2024] NSWSC 1139 at [262]-[269] per Hammerschlag CJ in Eq; Punchbowl Casual Dining Pty Ltd v Rashays Cafes (Trial Judgment) [2024] FCA 1265 at [27]-[32] per Jackman J.

The debate surrounding that question need not be delved into here. However, putting to one side the issue as to whether the conversations deposed to by Valentina were described as being a precise recollection or in “words to the effect”, particularly in respect of the conversations said to have taken place over 10 years ago, I find it difficult to accept that the level of detail employed in the direct speech (where there were often long-winded paragraphs of what were essentially monologues attributed to the particular speakers) accurately reflects the extent of her recollection of those conversations. That is so even where a prefatory phrase akin to “words to the effect” was used.

I am not satisfied to the standard required by s 140 of the Evidence Act of certain aspects of Valentina’s evidence, in particular her evidence in relation to the extent of the care which the plaintiffs provided for Rade and Danica and the assertion that the plaintiffs were denied an investment opportunity to purchase another property at Illawong. In the respects to which I refer below, I prefer the evidence of Susanna to the extent to which it conflicts with Valentina’s evidence.

However, subject to the above, I had the impression that Valentina was otherwise attempting to give evidence as best that she could recall it.

Mr McGrath submitted that Mr Newton was “sincere, almost to a fault, and credible”: T 275.20.

Whilst there were some curious aspects of Mr Newton’s evidence overall, I am inclined to accept his evidence, in particular for the reasons I set out further below.

Lenche was cross-examined by Mr Bilinsky. On the whole, my impression of Lenche was that she was a generally reliable and truthful witness, simply seeking to recount what she recalled and not seeking to argue a position or volunteer information unnecessarily.

Mr Robinson was cross-examined by Mr McGrath. He gave his evidence in a straightforward way. Generally, I accept his evidence. He was challenged by Mr McGrath on a number of points.

Mr McGrath sought to challenge Mr Robinson’s ability to receive instructions from Rade, essentially putting to Mr Robinson that he had extreme difficulty in communicating with or understanding Rade: T 241.29-246.47. The purpose of some of the cross-examination was not self-evident and I enquired about it. In Mr Robinson’s absence, Mr McGrath foreshadowed an issue or contention that Mr Robinson was receiving instructions from Susanna or her husband Julian: T 247.1-.19. However, Mr McGrath did not persist in that line of questioning. Ultimately, I do not accept that Mr Robinson was unable to effectively communicate with Rade in English or misunderstood instructions from Rade.

Mr McGrath enquired of Mr Robinson as to whether he had obtained instructions from Rade that Dimce “had not held up his part of the agreement”. This aspect of the cross-examination was somewhat messy: see T 252.5-255.1. Eventually, what emerged was Mr Robinson’s acceptance that Rade did not express any “opinion” to him “about whether Dimce held up Dimce’s part of the agreement”: T 255 .3-.4. However, when asked why he had written in an email to Dimce dated 29 November 2021 that “clearly over time [Rade] has come to believe that you have not ‘held up your part of the agreement’” (CB 687), Mr Robinson indicated that he was “simply using Dimce’s words so that it was clear, a clear response”: T 255.7-.9. That comment appeared to be referring to the email of Dimce (sent earlier on 29 November 2021) to which Mr Robinson was responding, in which Dimce stated “[m]y wife and I have held up our part of the agreement”: CB 684. Whilst in context the relevant part of Mr Robinson’s email related to the “Illawong house” (CB 686-687), the nature of the actual agreement being referred to was not clarified in cross-examination. Mr Robinson said he was not aware of “the existence of an agreement involving at least Rade and Dimce” at the time that he wrote the email: T 255.11-.13. Thus, what may be taken from it is limited. However, to the extent that it might be said to be relevant, I accept that Mr Robinson was simply relaying the effect of what Rade had told him in response to Dimce’s claims.

Mr Robinson had previously had a “tenant/landlord” relationship with Rade arising out of the fact that he operated his accounting practice in one of Rade’s commercial properties in Mullumbimby between 1974 and October 2003: CB 297[2]. It was initially through that relationship that Mr Robinson had contact with Rade. I accept his denial that his practice’s tenancy in the building owned by Rade ended on bad terms: T 240.32-.47.

Whilst Mr Robinson indicated that he had a friendship with Rade over the years (T 239.49-240.2), his affidavit evidence was directed more particularly to reciting his contact with Rade from January 2021 (which timing coincided with Rade leaving the Illawong Property). Initially, Rade came to Mr Robinson’s office alone to speak with him about his “deteriorating relationship” with Dimce: CB 297[3]. Later, on 15 January 2021, Rade made another visit after Mr Robinson had established some dialogue with Susanna: CB 297[4]. On 16 February 2021, following a further meeting between himself, Rade, Susanna and Mr Bell of Universal Law, Mr Robinson was appointed as Rade’s attorney pursuant to a power of attorney and undertook a review of Rade’s financial position: CB 298[6]-[7].

His investigations revealed that the plaintiffs were benefiting from the use of income from Rade’s property holdings in certain respects which I detail more fully below (in considering the countervailing benefits received by the plaintiffs). Mr Robinson was not cross-examined on his investigations as to the extent to which the plaintiffs were benefiting from the use of income from Rade’s property holdings, and I accept his evidence regarding those findings.

Susanna was briefly cross-examined and her cross-examination was essentially limited to three points: see T 257-262. The first was described as a “Jones v Dunkel matter” arising out of the fact that Rade did not give evidence in the proceedings. When I noted that Susanna was not someone who was in a position to control or conduct the defence of the proceedings, the questioning was not pursued: T 257.30-258.13. I have otherwise dealt with the Jones v Dunkel issue below. The second point related to evidence of statements made by Rade to Susanna which appeared to relate only to an issue that had been abandoned. After I questioned the relevance, the questioning was not pursued: T 258.15-259.12. The third point related to a statement which Mr Trajchevski attributed to Susanna (which she denied) and the implications said to arise from it, to the effect that she considered it to her own advantage if the plaintiffs and their family were evicted from the Illawong Property: T 259.14-262.38. I have dealt this third aspect below in addressing Mr Trajchevski’s evidence.

Susanna presented as being frank. In my assessment, her credit was not affected by the cross-examination in relation to the above-mentioned third issue. She was not confronted with any compelling material or prior inconsistent statement suggesting that her evidence should not be believed. I accept her evidence.

Before turning to the issues in dispute, it is helpful to set out a factual overview of the key events about which I do not understand there to be any serious dispute.

In 1967, Rade purchased a banana and avocado plantation in Mullumbimby: CB 41[7]. Upon finishing his secondary education in 1977, Dimce began working for his father on the plantation. While Dimce worked on the plantation until it was sold in or about 1980, he studied art in his spare time and aspired to pursue a career in the art world: CB 41[10]-[12].

In or around 1979 or 1980, Rade and Danica purchased an historic commercial building at 39-49 Burringbar Street, Mullumbimby known as the “Nelson Building”: CB 42[14], 723[15]. The property appears to have been associated with or adjacent to another property having some frontage to Stuart Street: CB 308[43]. Dimce gives evidence that in 1984, Rade and Danica completed construction of the Mullumbimby Professional Centre (MPC) on part of this property at 97-99 Stuart Street, Mullumbimby. Seemingly in about 2016, the process was commenced to separate the land title for the Nelson Building and the MPC. The separation occurred in or about December 2018, with the Nelson Building and the MPC becoming respectively Lots X and X in DP XXXXX: CB 42[14], 170[7(c)].

The Nelson Building contains at least 21 shops, offices and residential apartments, while the MPC contains seven rentals plus a two bedroom family residential flat or unit (MPC flat): CB 42[14]. The MPC flat was used and occupied by the Stoyanovski family at various times when they were in Mullumbimby: CB 171[17].

Susanna moved to Sydney in 1980 to attend Sydney University, where she completed a degree in social work: CB 306[31].

In 1981, Dimce purchased a share in a multiple occupancy at Huonbrook (Huonbrook Property): CB 42[16]. The Huonbrook Property comprised approximately 14 acres of mountainous terrain and had a single dwelling on it. Dimce used the entirety of his life savings at that time (comprising of approximately $14,000) to purchase the share in the property: CB 41[13], 42[17]. While he owned his share in the Huonbrook Property, Dimce lived independently from his parents: CB 42[20].

In the latter half of 1984, Dimce sold his share in the Huonbrook Property for approximately $25,000 and returned to reside with his parents at their home, which at that time was on Main Arm Road, Mullumbimby: CB 42[22], 43[24]. At the time, he had been taking art lessons and had begun exhibiting in the local region: CB 43[23].

In around late 1987, Dimce moved out of his parents’ home and began living in various share houses in northern New South Wales for approximately the next 10 years: CB 723[13]. During this period, Dimce was largely financially independent and pursued his dream of becoming a successful artist: CB 45[43]-[45].

In September 1987, Rade and Danica purchased the Illawong Property as joint tenants for $180,000: CB 367; see also CB 45[38], 723[15].

In subsequent years, Rade and Danica divided their time between the Illawong Property and the MPC flat.

By 1998, Dimce had moved into the MPC flat and was receiving money (it appears in the sum of $300 per week after tax) from his parents’ business, which at that time pertained to the management of the various commercial premises in Mullumbimby: CB 46[54], 371.

In around 2000, Rade and Danica purchased a property in Petersham, which Susanna lived in until 2010 (Petersham Property): CB 309[50].

Between 2002 and 2010, Susanna visited her parents weekly at the Illawong Property (I infer when they were there and not otherwise in Mullumbimby): CB 310[52]. However, in 2010, Susanna become estranged from her parents: CB 312[62]. Susanna was given a notice to vacate and the Petersham Property was sold in 2013: CB 126[78].

In August 2001, Dimce travelled to Macedonia and met Valentina: CB 47[59]. Valentina was born in January 1970 in Macedonia: CB 110[1]. At the time, she was 31 years old and Dimce was approximately 42 years old.

On that same trip, Dimce asked Valentina to marry him and move to Australia: CB 48[59]-48[60]. Dimce returned to Australia in September 2001.

In November 2001, Dimce had travelled back to Macedonia and married Valentina under Macedonian law: CB 48[63], [66].

In August 2002, Dimce and Valentina arrived in Australia and stayed at the Illawong Property with Rade and Danica: CB 48[68]-49[70]. Dimce and Valentina have resided at the Illawong Property ever since.

Dimce and Valentina have three children, namely:

In December 2011, Rade experienced a stroke incident (or perhaps two strokes in quick succession) whilst in Mullumbimby. Following several weeks of hospital treatment, he eventually returned to live at the Illawong Property where he was cared for by Danica, Dimce and Valentina: CB 55[117]-56[124], 313[70]-[71].

The stroke left Rade with hemiplegia (paralysis of one side of the body), expressive dysphasia (an inability to speak clearly) and dysphagia (difficultly in swallowing): CB 55[117], 304[9], 305[19].

In early 2014, commercial premises at 78-82 Burringbar Street, Mullumbimby, more particularly described as Lot X of Section X in DP XXXX (Burringbar Street Property), were purchased as an investment for approximately $1.3 million, with Rade and the plaintiffs each owning a half share as tenants in common and the plaintiffs owning their share equally as joint tenants: CB 467, 660. It appears that the property was purchased or held by the parties in a partnership (see e.g. CB 58[142]), however no detail of any partnership agreement was provided in the evidence: T 237.45-.47. The property consisted of three shops which, after renovations in 2015, became four: CB 58[142]-[144], [146], 467, 660. The Burringbar Street Property was sold for $2.35 million and settlement was to be effected on 8 March 2023: CB 300[31].

For accounting purposes, it appears that the total purchase cost of the Burringbar Street Property was in the order of $1,408,306: CB 667. Despite equal ownership of the property as between Rade and the plaintiffs, at least as at 30 June 2020, the lion’s share of the cost of funding the property fell to Rade: CB 667.

Notwithstanding that, there has apparently been some dispute between Rade and the plaintiffs regarding the distribution of the sale proceeds. From the sale proceeds, Mr Robinson expected that: (a) a mortgage in favour of Westpac would be discharged ($70,484); (b) Rade’s loan account would be repaid ($1,070,512 as at 30 June 2021): (c) Rade’s partner account would be repaid ($308,263 as at 30 June 2021); (d) the plaintiffs’ negative loan account or debt would be repaid (- $75,910); and (e) the balance, having regard to the equal ownership, would then be divided equally between Rade and the plaintiffs: CB 300[32]-[35]. One might think that a division of the sale proceeds ought to be effected on the basis that the positive and negative loan or debt amounts would be appropriately adjusted beforehand.

During the course of the hearing, Mr Bilinsky stated that the net proceeds of the sale, being a sum of $2,210,167.46, are held in trust for the parties: T 237.28-.29.

Without further detail of the terms of the partnership, it would appear that, based on legal ownership, after appropriate deductions the $2,210,167.46 amount ought to be distributed equally as between Rade’s estate and the plaintiffs.

On 14 May 2014, Rade appointed Mr Nicholls and Dimce as his attorneys (to act jointly and severally) under an enduring power of attorney: CB 468. Mr Nicholls accepted his appointment on the same day: CB 472. On 1 July 2014, Dimce accepted his appointment and, on 14 July 2014, the power of attorney was registered: CB 473.

Also on 14 May 2014, Rade appointed Danica as his enduring guardian, with Dimce being appointed as an alternative guardian: CB 474. Danica accepted her appointment on that day: CB 477. Dimce accepted the appointment on 1 July 2014: CB 479.

On 14 June 2017, Rade executed a Will (2017 Will) in which, after payment of all debts, legacies, funeral and testamentary expenses and duties, he relevantly:

In cl 5 of the 2017 Will, Rade gave his reasons for making no provision for Susanna beyond the $100,000 legacy as follows:

Following a diagnosis of non-Hodgkin’s lymphoma in September 2017, Danica passed away in May 2018: CB 61[184], 62[195].

On 19 November 2018, Rade executed another Will (2018 Will) in which, after payment of all debts, legacies, funeral and testamentary expenses and duties, he relevantly:

Pursuant to a deed of gift dated 30 November 2018, Rade transferred the MPC to Dimce and Valentina as joint tenants: CB 565-571. The transfer was not ultimately effected until 6 February 2019: CB 573.

Between 2002 and 2010, Susanna visited her parents on a weekly basis and observed the relationship between her parents, Dimce and Valentina: CB 310[52]. Susanna gave evidence, on which she was not challenged and I accept, that during those visits (CB 311[56]):

It is apparent that between 2018 and 2021, the relationship between the parties (in particular between Rade and Dimce) deteriorated in a significant way: see e.g. CB 64[207]-[208]. This culminated in Rade moving into an aged care facility in Ballina in August 2021: CB 303[5]. Dimce and Valentina have not had any direct contact with Rade since at least then: CB 74[291]-[292], 140[151].

The context for the deterioration in the parties’ relationship is said to involve various allegations made by Rade against the plaintiffs, including that they stole money from him, and were the subject of what is defined below as the “abuse issue”. The plaintiffs gave evidence denying the truth of those allegations. However, as I note below, the parties indicated on the hearing that the abuse issue has fallen away and no submissions were made in relation to that issue. As the substance of the allegations were not relevant to any other issue in dispute, I will not make any further comment upon them.

The power of attorney executed on 14 May 2014 was revoked by Rade on 16 February 2021: CB 653. Mr Robinson was subsequently appointed as Rade’s attorney.

Susanna was appointed as Rade’s enduring guardian on 5 March 2021: CB 655-659. Julian was subsequently appointed as Rade’s enduring guardian on 11 August 2021: CB 303[3] (albeit that the instrument of appointment was not adduced in evidence).

The deterioration of the relationship between Rade and Dimce is marked by significant changes to Rade’s testamentary intentions, reflected in a further Will executed on 14 May 2021 (2021 Will): Exhibit P1. After payment of all debts, legacies, funeral and testamentary expenses and duties, Rade:

Significantly, cl 7 of the 2021 Will states:

On 18 November 2021, Dimce and Valentina received a notice (dated 17 November 2021) to vacate the Illawong Property from Rade’s then solicitors: CB 74[293], 682-683. That notice was the catalyst for Dimce commencing proceedings in the NSW Civil and Administrative Tribunal (NCAT), which he did by an application filed on 13 December 2021: CB 705-722. The application sought (a) a declaration that the “agreement” between Rade and Dimce in respect of the Illawong Property was a “residential tenancy agreement” to which the Residential Tenancies Act 2010 (NSW) (RTA) applied, and (b) a declaration that the notice to vacate was not a valid termination notice pursuant to the RTA.

The application was apparently the first of two proceedings which Dimce commenced in NCAT. I will distinguish between the proceedings by referring to these proceedings commenced in 2021 as the “Occupancy Proceedings”.

The Occupancy Proceedings were resolved by consent on 18 January 2022 with orders stating, inter alia, that the notice to vacate was not valid and the agreement between Rade and Dimce in respect of the Illawong Property was a residential tenancy agreement to which the RTA applied: CB 740-741. I will refer to the relief in these proceedings further below.

There was some dispute about the orders made by NCAT and, on 9 February 2022, a “Notice to Terminate Tenancy Agreement” was sent to Dimce by Rade’s then solicitors, which required Dimce and his family to vacate the Illawong Property: CB 745-748.

In April 2022, Dimce and Valentina caused a caveat to be placed on the title of the Illawong Property: CB 749-750, 752.

On 30 August 2022, a lapsing notice in respect of the caveat was served on the plaintiffs’ solicitors: CB 13[83], 332[185]-[186]. The plaintiffs commenced these proceedings two days later on 1 September 2022.

In late 2022, Dimce made an application to NCAT naming Rade as the person the application concerned, apparently seeking review of Rade’s appointments of Mr Robinson as his enduring attorney and Julian as his enduring guardian on the basis that Rade did not have capacity to make those appointments. On 23 November 2022, a notice of listing was sent to Rade care of O’Reilly & Sochacki Lawyers. The notice of listing was tendered in the proceedings and marked as Exhibit D2.

These proceedings appear to be the second proceedings commenced in NCAT by Dimce. However, the notice of listing document makes reference to a case number “2016/00391781”. It is not clear on the evidence whether the application made by Dimce was an application filed in earlier proceedings involving Rade, although there is no need for me to determine that. To distinguish this application from the Occupancy Proceedings, I will simply describe these proceedings as the “Appointment Proceedings”.

On 15 December 2022, Rade executed another Will (2022 Will): Exhibit P1. In the 2022 Will, Rade:

Significantly, Rade explains the lack of provision to Dimce in cll 7 and 8 of the 2022 Will as follows:

There was no great precision in the evidence regarding exactly what the living arrangements were as between Rade and Danica on the one hand and the plaintiffs on the other between the purchase of the Illawong Property in 1987 and the present. However, there was some evidence that shone some degree of light on the issue.

According to Ms Prentice, Rade stated to her on a number of occasions (I infer on or after July 2014) that he preferred to live in Mullumbimby whenever possible, as he felt more “at home” in Mullumbimby and liked to be there “to keep an eye on things” (I infer on his property holdings in Mullumbimby): CB 171[18]. Ms Prentice gave evidence that (CB 171[19]-[22]):

It appears that the alternating living arrangements were in place well prior to 2014. My understanding from the evidence is that, at least up until 2009, Dimce, Valentina and their children regularly travelled to Mullumbimby to live in the MPC flat. However, in or about 2009, when Rahela was starting school, it seems that the plaintiffs and their children were more often living in the Illawong Property: e.g. CB 59[165].

Ms Prentice described the Stoyanovski family’s three commercial property partnership arrangements as follows:

According to Ms Prentice, whose evidence I accept (CB 172[34]):

In preparation for the hearing, the parties provided an agreed list of real issues which contained the following.

On the hearing, the parties confirmed that the abuse issue and the NCAT issue have fallen away and need not be determined: T 210, 302. While Mr Bilinsky did not press the NCAT issue on the basis of it supposedly not being “of any moment” (T 302.19), I propose to make some observations in relation to the issue.

I otherwise propose to deal with the remaining issues in dispute in turn, by first setting out the facts upon which each party relies in respect of each issue and their respective submissions, after which I will set out my findings.

The matter was listed for hearing to determine the claims for relief in the plaintiffs’ statement of claim. In the DOS, Mr Bilinsky foreshadowed the filing of a cross-claim to obtain vacant possession of the Illawong Property. On the first morning of the hearing, Mr Bilinsky sought leave to file and rely upon the cross-claim: T 17.1-.4. He indicated that it was solely referable to what would transpire in the event that the Court were not to grant the relief which the plaintiffs sought: T 17.6-.9.

Mr McGrath opposed the filing of and reliance upon the cross-claim: T 17.14-.17. Following debate on the issue, in circumstances where no additional evidence was being relied upon and being satisfied that there was no irremediable prejudice to the plaintiffs in Rade seeking such relief, I permitted the cross‑claim to be filed for the sole purpose of formalising what is to happen with the Illawong Property in the event that the plaintiffs’ claim were dismissed: T 18.37-19.8.

Mr McGrath foreshadowed that he proposed to make a submission based on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) in respect of the failure of Rade to file affidavits in compliance with previous directions from the Court: T 217.17-.18. He clarified that the submission did not contend that Rade could give evidence at the time of the hearing: T 217.18-.19.

It is true that, apart from an affidavit verifying the defence affirmed 8 November 2022, no affidavit evidence had been adduced in the proceedings from Rade himself.

It is clear that, in the matter’s preparation for hearing, the parties to some degree attempted to put on evidence dealing with the issue of Rade’s capacity.

It will be seen below that I rejected some expert evidence adduced by the plaintiffs which attempted to address Rade’s capacity. It is appropriate to set out some of the context regarding Rade’s capacity and health in order to explain my reasons for rejecting that expert evidence and also my approach to addressing the Jones v Dunkel submission made by Mr McGrath.

As noted above, Rade suffered a stroke in 2011 and, as a consequence, had ongoing dysphasia which made it difficult for him to communicate clearly and, at least to some degree, made it difficult for others to understand him: CB 55[117], 304[9], 305[19]. Since 2014, Rade has had attorneys and enduring guardians appointed for him (albeit with some changes to those appointments).

There are relatively few contemporaneous documents which shed light on Rade’s medical condition. However, based on the contemporaneous medical records in evidence, I note the following.

On 18 March 2019, it appears that Dimce attended the Mullumbimby Medical Centre with Rade, who was presenting with hypertension. The consultation notes record that, at that stage, Rade lived “occasionally in Sydney”: CB 679.

On 21 May 2020, Rade applied for approval to receive aged care under the Aged Care Act 1997 (Cth): CB 598-600. He underwent an assessment by the Aged Care Assessment Team (ACAT) at the South Eastern Sydney Local Heath District: CB 595. On 22 May 2020, a recommendation was made that he be approved to receive subsidised high level permanent residential care: CB 602. Approval for permanent residential care was given by the Department of Health on the same day: CB 595-596.

The summary generated by the ACAT assessor, Jennifer Vaessen, records a degree of background information to the matter, which information appears to have been given to the assessor by Dimce: CB 601-602. Part of the background given by Dimce was that Rade continued to manage his property business with the help of Dimce, alternating between the two family homes in Illawong and Mullumbimby over the years: CB 601. At that stage (May 2020), Dimce had indicated that Rade was reliant upon his family for transport, shopping, meals, domestic duties, finance/banking, social support, home maintenance and social interaction. Dimce also indicated that he and Valentina had been providing direct care daily while living in Illawong, and there was no indication of caregiver strain at that stage: CB 601. Rade had grown socially withdrawn and, on testing, was exhibiting significant signs of depression over the prior week: CB 602.

As noted above, the proceedings were commenced on 1 September 2022. On 13 September 2022, the plaintiffs approached the Court with an application to have the operation of their caveat on the Illawong Property extended pursuant to s 74D(2) of the Real Property Act 1900 (NSW). (I pause to observe that the application to extend the operation of the caveat under s 74D(2) appears to have been misconceived as that applies to the lodgement of caveats against primary applications under s 74B.) The application was supported by an affidavit of the plaintiffs’ solicitor, Kathryn Lee Rundle, affirmed on 12 September 2022. The affidavit contains a copy of the caveat that had been lodged by the plaintiffs through PEXA Exchange on 22 April 2022, which claimed an interest in the Illawong Property pursuant “an agreement” made between the plaintiffs and Rade “that the Caveator [i.e. the plaintiffs] would inherit the Land in consideration for the Caveator providing domestic and/or personal care to the Registered Owner [i.e. Rade]; (2) resulting and/or constructive trust arising from financial contribution”.

Kunc J made orders extending the operation of the caveat and, relevantly, orders for: Rade to file and serve a defence and any cross-claim by 30 September 2022; the plaintiffs to serve their affidavit evidence in chief by 21 October 2020; Rade to serve his affidavit evidence in chief by 11 November 2022; and the plaintiffs to serve their affidavit evidence in reply by 2 December 2022. The matter was stood over for further directions before the Equity Registrar on 12 December 2022.

On 8 November 2022, Rade filed his defence.

On 11 November 2022, it appears that Registrar Hedge was requested to relist the matter to address a default in the timetable orders. The Registrar relisted the matter for directions on 17 November 2022.

However, on 15 November 2022, it appears that the parties agreed to vary the timetable and Registrar Walton made orders requiring:

On 14 February 2023, Registrar Walton directed that the time for Rade to file any affidavit material upon which he sought to rely be extended to 3 March 2023. The matter was listed for further directions in the week beginning 15 March 2023.

On 14 March 2023, Registrar Walton made further directions that the time for Rade to serve any affidavit material upon which he sought to rely be extended to 17 March 2023, as well as other consequential orders. It appears that the plaintiffs had sought for Rade to attend a medical examination, to which Rade had not consented. Directions were made for the plaintiffs to file and serve a notice of motion under Pt 23 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and evidence in support of the motion by 24 March 2023.

On 24 March 2023, the plaintiffs filed a notice of motion seeking that Rade submit to a medical examination by Professor Carmelle Peisah, pursuant to r 23.4(1) of the UCPR.

On 31 March 2023, Mr Robinson filed with the Court a consent to act as tutor for Rade.

On 5 April 2023, Registrar Walton noted that such a consent had been filed and dismissed the plaintiffs’ notice of motion whilst reserving costs. The Registrar also granted leave for the plaintiffs to file expert evidence in relation to Rade’s capacity “over time”, as well as leave for Rade to serve affidavits of Mr Robinson and Susanna by 21 April 2023. A final direction was made that Rade not file or serve any other affidavits without leave of the Court.

For the purposes of the plaintiffs’ notice of motion to seek to have Rade medically examined, they had engaged Professor Carmelle Peisah to prepare a report and had provided written instructions to her on 24 March 2023.

Subsequently, on 28 June 2023, the plaintiffs’ solicitors provided a letter of instruction to Professor Peisah for a “renewed engagement”: CB 219. The renewed engagement pertained to the provision of an expert opinion in relation to the following matters:

On 26 July 2023, Professor Peisah provided the plaintiffs’ solicitors with a report outlining her opinion on those matters: CB 224.

Mr McGrath sought to read the expert report of Professor Peisah, although Ms Boyle objected to it: T 207.10-.14.

Mr McGrath initially sought to press the report for what he described as limited purposes, indicating that the report addressed two reports that had been annexed to the affidavit of Susanna (being a report of Dr Lynne Ridgway, a clinical neuropsychologist, dated 10 December 2021 (CB 691-700) and a report of Dr Anthony Havyatt, seemingly a general practitioner, dated 22 June 2022 (CB 751)): T 207.18-.40. Ms Boyle was content for me to proceed on the basis that none of the reports would be admitted: T 208.9-.12.

Notwithstanding the fact that Ms Boyle had indicated that Rade would not be relying upon the reports of Dr Ridgway and Dr Havyatt, Mr McGrath maintained that the report of Professor Peisah should still be admitted as it was relevant to two issues. First, to the allegation of physical, emotional and financial abuse of Rade, and second, to provide an explanation of the circumstances in which Rade changed the appointments of his attorney and guardian: T 209.4-.9.

The issues on which Professor Peisah was asked to provide an opinion are not real issues in dispute in the proceedings. If they were issues at any stage in the proceedings, they were certainly not real issues by the time that the proceedings were called on for hearing. In those circumstances, I rejected the report of Professor Peisah and also formally noted that Rade did not read the reports of Dr Ridgway or Dr Havyatt: T 209.4-.34.

In essence, the Jones v Dunkel submission was that there was a window of time between 8 November 2022, when Rade verified his defence to the proceedings, and 31 March 2023, when the consent to act as tutor was filed, during which Rade was competent to give evidence, there were subsisting orders for him to give affidavit evidence and his failure to do so during that period ought to give rise to a Jones v Dunkel inference.

Mr McGrath handed up extracts of the series of directions made by the Court, commencing from 11 November 2022 and concluding on 5 April 2023, to which I have referred above. That extract was marked MFI-2: T 265.6.

In trying to understand the precise nature of Mr McGrath’s submission, I sought clarity as to whether he was submitting that I should infer that there was some conscious choice made not to adduce evidence from Rade. Mr McGrath confirmed he was not suggesting that. Rather, he submitted that I should infer that evidence adduced from Rade “would not have helped him”: T 306.12-.22.

In response to further probing from me as to why a Jones v Dunkel inference could be drawn, Mr McGrath submitted that there were “unexplained breaches of the Court orders”: T 306.36-.43.

Mr Bilinsky noted that whilst directions were being made in this Court, the Appointment Proceedings in NCAT were running in parallel: T 307.16-.22. Mr Bilinsky further submitted that no adverse inference could be drawn in circumstances where Rade had denied in his defence that the representations occurred as pleaded by the plaintiffs. He submitted that Rade was not obliged to put on evidence with some form of competing form of conversations, citing Fiorenza v Fiorenza [2024] NSWSC 549 (Fiorenza): T 308.14-.25.

I addressed the principles regarding the rule in Jones v Dunkel in Wang v Yu [2023] NSWSC 1182 at [123]-[142]. Those principles need not be recited here.

To the extent that Mr McGrath pressed a submission based on Jones v Dunkel in respect of the failure to adduce affidavit evidence from Rade, I reject that submission.

As early as February 2021, Dimce had concerns regarding Rade’s capacity: CB 69[256]. As noted above, he seeks review of Rade’s appointments of Mr Robinson as his attorney and Julian as his enduring guardian in the Appointment Proceedings on the basis that he lacked capacity to make those appointments in 2021. In these proceedings, the plaintiffs initially sought a direction for Rade to provide to them all reports relating to his capacity made in the year prior to November 2022. They subsequently sought to have Rade submit to a medical examination. Thus, Rade’s mental capacity has been a consistent issue throughout, and indeed prior to, these proceedings.

Whilst non-compliance with directions of the Court for the serving of affidavit evidence is far from ideal, I am not satisfied that, in the circumstances surrounding that non-compliance, such non-compliance can support an inference that Rade’s evidence would not have assisted his case. Whilst Rade’s solicitors may have been satisfied that he was capable of swearing his affidavit verifying the defence on 8 November 2022, the filing of the consent to act as tutor on 31 March 2023 in the context of the long-standing issue of Rade’s capacity provides at least some explanation for the failure to adduce affidavit evidence from him during the intervening period.

On 13 December 2021, the Dimce commenced the Occupancy Proceedings in NCAT seeking the following orders (see CB 13[78], 330[173], 710):

In his statement (also dated 13 December 2021) which he attached in support of the application, Dimce relevantly stated the following (CB 723[5]-726[56]):

On 18 January 2022, the following orders were made by General Member Lynch by consent to resolve Dimce’s NCAT application (CB 740):

The short minutes of order attached to the consent orders were as follows (CB 741):

On 20 January 2022, Dimce’s solicitors, Ballantyne Law Group, made the following “alternative proposal” to Rade’s solicitors, Castrikum Adams Legal (alternative, it seems, to the orders made by consent just two days prior) (CB 743-744):

On 9 February 2022, Castrikum Adams Legal served a “Notice to Terminate Tenancy Agreement” on Ballantyne Law Group pursuant to s 85 of the RTA: CB 745-748. The notice required Dimce and all other occupants of the Illawong Property to vacate the property and deliver up vacant possession by 12 May 2022: CB 747.

On 28 April 2022, Ballantyne Law Group responded to the 9 February 2022 notice: CB 749-750; see also CB 323[124], 332[182]. In that letter, Ballantyne Law state:

The part of Rade’s defence relevant to the NCAT issue reads as follows (CB 31[63]-32[67]):

While the wording of this part of the defence does not identify what kind of estoppel is alleged, it seems to implicitly raise the question of an issue estoppel.

In Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 (Blair), Dixon J (as his Honour then was) explained issue estoppel in the following terms (at 531-532):

An issue estoppel will only arise in respect of those matters which a primary decree, order or judgment necessarily established as the legal foundation for the decision and nothing but that which is legally indispensable to the conclusion is thus finally closed or precluded: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 (Ekes) at [112] per Bathurst CJ (Beazley P (as her Excellency then was) agreeing), citing Blair at 531-532.

There is some authority for the proposition that decisions of NCAT are capable of creating an issue estoppel in respect of those issues which were essential for the Tribunal’s determination: see Vickery v The Owners — Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 at [180] per White JA; Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [39] per White J (as his Honour then was); see also Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283 at [62]-[85] per Weinberg JA.

It has also been accepted that a consent judgment could give rise to an issue estoppel: Ekes at [111]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib) at [186] per McColl JA (Giles and Campbell JJA agreeing). In such a case, the Court will examine all evidence that is available and admissible and, with the aid of such material, ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the actual decision assented to: Ekes at [112]; Habib at [186]; Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq. In these proceedings, the extent of that evidence appears to be Dimce’s NCAT application commencing the Occupancy Proceedings (including attached documents, consisting of recent correspondence with Rade’s solicitors and Dimce’s statement dated 13 December 2021 extracted above) and the orders themselves.

The combined effect of the above principles suggests that the consent orders of NCAT on 18 January 2022 may have been capable of creating an issue estoppel; the issue being the legal characterisation of the agreement between Dimce and Rade. As is indicated by order 4 of the consent orders, the orders are final in resolving the application before NCAT.

At least on one view, at its core, there is an identity of issue in these proceedings. With the exception of Valentina, there is also an identity of parties. One may reasonably ask whether a finding as to the nature of the agreement between Dimce and Rade in these proceedings runs the risk of conflicting with the orders of NCAT in the Occupancy Proceedings, which state that the agreement was a residential tenancy agreement.

That all being said, as I have noted above, I have been expressly told by the parties that the NCAT issue is not one that I need to determine. No party made any substantive submissions in respect of the issue, and the above observations should not be taken to form any concluded findings.

The plaintiffs’ case is that Rade and Danica (but for the most part Rade) made various representations to them over what appears to be a period of 17 years (with repetition of certain representations continuing after that time). The plaintiffs’ pleading and, to some extent, Mr McGrath’s submissions, referred to at least some of the representations by certain descriptors. While I will set out the contents of each representation further below, in summary, the representations were said to have occurred as follows:

A further “seventh representation” is said to have been made but, as will be seen below, it is essentially asserted as being a repetition of the fourth to sixth representations (I will refer to this as being the Repetition Representation).

In his closing submissions, Mr McGrath identified the seven representations from the statement of claim upon which the plaintiffs rely, at least to some extent, in making out their estoppel case. He prefaced the identification of those representations by saying (T 265.48-266.4):

The outline of representations made and relied upon in closing largely mirrors that which Mr McGrath gave in his written outline of submissions: see POS [93]-[98].

In his defence, Rade denies that either he or Danica made any of the representations alleged by the plaintiffs: CB 23[5], 23[9], 24[13], 24[18]-25[19], 25[22], 25[26]. In those circumstances, Mr Bilinsky submitted that it is not imperative for Rade to set out a competing version of the alleged conversations, citing Fiorenza at [44] per Peden J; it is enough for him to put the plaintiffs to proof: DOS [63]; T 308.15-.20. It was also said that, given the amount of time that has passed since the representations are said to have occurred, coupled with the fact that Dimce and Valentina are the only source of the evidence supporting the claim (and they have an obvious self-interest in the outcome of the proceedings), without corroboration by any objective evidence, the Court would exercise extreme caution before accepting their evidence: DOS [59]; DCS [1(c)]. In closing, Mr Bilinsky identified various perceived difficulties in accepting the alleged representations, based upon the way in which the evidence unfolded during the hearing: see DCS [9]-[15]. Mr Bilinsky’s ultimate submission was that, when the total evidentiary mosaic is considered in this case, the alleged representations were not articulated in terms of precision: DCS [7].

The Security Representation is pleaded at CB 4[13] (T 266.7-.29):

In relying upon this representation, Mr McGrath made the following qualification (T 266.21-.24):

The evidence supporting this representation was said to be at CB 42[21], where Dimce deposed that Rade told him:

According to Dimce, that representation was made during the time that he owned his share in the Huonbrook Property, which he sold in the latter half of 1984: CB 42[20]-[22].

In examination in chief, Dimce explained (T 49.35-.38):

Dimce stated that this was said by Rade “on many occasions”: T 49.41.

The Family Business Investment Representation is pleaded at CB 4-5[17] (T 267.1-.10):

The evidence supporting this representation was said to be at CB 43[26]-[27] (see also POS [18]), where Dimce deposed that Rade told him:

In examination in chief, Dimce recalled that (T 50.28-.36):

This representation was said to have been made in around early 1985, in response to Dimce informing his parents of his plans to move to Sydney and use his savings (amounting at that time to $25,000) to pursue his studies and career as an artist: CB 43[26].

The Illawong Investment Representation is pleaded at CB 5[24] (T 267.12-.23):

Mr McGrath submitted that the supporting evidence for this representation can be found in Dimce’s affidavit, where he deposed (CB 45[42]):

The Occupation and Inheritance Representation is pleaded at CB 6[29] (T 267.25-.28):

Dimce deposed that Rade or Danica said to him, in what appears to be 1998, (CB 47[56]):

In his affidavit in chief, Dimce gave no detail of any discussions with Valentina regarding this representation. He simply indicated that he met Valentina in August 2001 and, when he returned to Australia in September 2001 and stayed with his parents at the Illawong Property, he explained to them that he had made a commitment to marry Valentina and had shared with her “their undertaking to support our marriage and that she, in turn, had agreed to return to Australia with me as my wife”: CB 48[60].

The Employment Representation and the Care and Management Representation, as Mr McGrath explained them, are pleaded at CB 6-7[32]-[33] (T 267.38-270.2):

Mr McGrath submitted that it was intended that Dimce would pass on the Employment Representation to Valentina. He further submitted that, while this representation has much in common with the Occupation and Inheritance Representation, it adds that Rade and Danica would employ both Dimce and Valentina in the family business: T 267.38-.48.

Mr McGrath proceeded to make some attempt at distinguishing between the elements of the representations thus far, which appeared to consist of the plaintiffs’ employment, the “general inheritance representation” and “the house”: T 268.1-.5. It was said that there is no complaint by the plaintiffs as to the first two elements, only the latter.

Dimce stated that his parents confirmed that they would “support the marriage by employing my future wife and I in the family business, affirming their promise that my wife-to-be and I would move into, live, raise our children in and eventually inherit the Illawong Property”: [3] CB 47[59]-48[61]. Dimce deposed that his parents told him (CB 48[61]):

He then stated (CB 48[62], second sentence):

The first sentence of that paragraph had been rejected with leave given to supplement the evidence orally: T 30.18-.20. That sentence read:

Mr McGrath submitted that Dimce had given oral evidence that this representation had been passed on to Valentina by him at T 51.35-.42: T 267.32-.36.

When Dimce was called to be cross-examined, he first gave some supplementary evidence in chief regarding the first occasion on which he spoke with Valentina about what had been promised by his parents. That conversation was said to have occurred in mid‑August 2001: T 51.7-.19. Dimce gave evidence as follows (T 51.21-.42):

On its face, the last response appears to be somewhat inconsistent with Dimce’s affidavit evidence and the pleaded case, whereby the Employment Representation and the Care and Management Representation were only made upon Dimce’s return to Australia in September 2001.

Dimce was asked about what he did when he returned to Sydney after mid-August 2001. He stated (T 52.12-.21 and 52.42-.46):

Valentina was in the courtroom up until this point and had the opportunity of listening to Dimce’s evidence regarding the matter until Mr McGrath had requested her to leave, which she did: T 53.8-.20.

Dimce continued to give evidence in the following terms (T 54.5-.14):

During Dimce’s visit to Macedonia when he first met her in August 2001 (i.e. before he returned to Australia in September 2001), Valentina deposed to what Dimce told her as follows (CB 111[11]):

This evidence from Valentina also appears to be somewhat inconsistent with Dimce’s affidavit evidence and the pleaded case, whereby the Employment Representation and the Care and Management Representation were made in September 2001 when Dimce returned to Australia.

In respect of the Care and Management Representation, Mr McGrath submitted the following (T 269.28-.38):

The Court Book reference is to Dimce’s affidavit at CB 48[62], to which paragraph I have referred above (specifically, the second sentence, as the first sentence had been rejected).

In essence, Mr McGrath submitted that the Care and Management Representation was one made by Dimce and Valentina that they would provide care to Rade and Danica into their old age. There was a form of “mutual representations” which all took place at the meeting at the Illawong Property in September 2001, and which was “part of the family deal”: T 269.49-270.37.

The Repetition Representation is pleaded at CB 8[38] (T 272.20-.22):

Mr McGrath characterised this representation as a repetition of the Employment Representation and the Care and Management Representation: T 272.17-.18. He then indicated that the following pleaded facts (CB 8[39]-[40]) were connected with the Repetition Representation (T 272.23-.32):

Despite what Mr McGrath appeared to submit in closing, it is apparent from the plaintiffs’ pleaded case and their affidavit evidence that they assert the Occupation and Inheritance Representation was also essentially repeated as part of the Repetition Representation.

Dimce and Valentina gave evidence in relation to the Repetition Representation at CB 49[71]-[72] and CB 113-117, respectively. It is unnecessary to recount their evidence in detail, save to say that the substance of the previous representations had been repeated by Rade and Danica over the course of a number of conversations following Valentina’s arrival in Australia.

I should not that, at various points in her evidence in particular, Valentina appeared to indicate that Rade would occasionally tell her not merely that he would enjoy having grandchildren, but that he would actually provide inheritance for them: CB 120[41]; T 132.4-.12, 145.10-.22. However, this was qualified by her understanding that Dimce’s parents expected any inheritance to go through Dimce and Valentina in order to flow through ultimately to the grandchildren.

In his opening written outline, Mr McGrath put the plaintiffs’ claim for relief in the following way (POS [127]-[128]):

On the hearing, the case was opened by Mr McGrath on the basis of proprietary estoppel by encouragement. He stated (T 2.3-.13):

That this was the way the case was being put was confirmed as Mr McGrath commenced closing submissions: T 265.25-.27. In opening, Mr McGrath briefly mentioned, but did not appear to press, an alternative claim of promissory estoppel: T 2.13-.27.

Mr McGrath submitted that “all of the elements of the estoppel” were in place by the time that the plaintiffs married in Australia in 2003: T 2.41-.43. In the alternative, he submitted that at least by 18 November 2021, when the first eviction notice was served on Dimce in relation to the Illawong Property, all of the elements for estoppel were in place: T 3.22-.25.

Mr McGrath, at least in part, emphasised a Macedonian cultural overlay in what it was that Rade and Danica were setting out to achieve and, in particular, their desire to have the enjoyment of grandchildren. He submitted (T 8.12-.24):

The way that the plaintiffs’ case was ultimately framed by Mr McGrath was that the plaintiffs are essentially relying on the third, fourth, fifth, sixth and seventh representations, and say that these formed the basis of the arrangement between the plaintiffs, Rade and Danica: T 272.37-.40. These appear to be the constituent parts of “a single family arrangement” which Mr McGrath submitted “crystallised into a claim for estoppel many years later”: T 270.32-.33.

Mr McGrath then attempted to break down the plaintiffs’ case into the following components (T 272.46-273.8):

Mr McGrath submitted that this case is about the last two components: T 273.10. He said further (T 273.16-.18):

Mr Bilinsky, for his part, also embraced the word “ambulatory” to describe the various representations, but with a different slant on it. Thus, he submitted (T 303.36-.48):

Mr Newton had known Rade and Danica from the beginning of 2013, initially being employed as a part-time cleaner on weekends for the Nelson Building and the MPC, and eventually ending up as property manager: CB 142[1]-[3]. He gave evidence that his duties included transporting Rade and Danica to and from Ballina Airport, taking them to and from doctor appointments and having otherwise some degree of social contact with them while they were in Mullumbimby: CB 142[4]. At other times, he would also pick up Dimce and his family: CB 142[5].

Relevantly, Mr Newton deposed to a conversation said to have taken place in 2014 with Danica in front of Rade. His evidence included the following (CB 142[8]-143[12]):

Mr Bilinsky cross-examined Mr Newton on a number of issues, including Danica’s command of English and whether she had a timid disposition, such that she was unlikely to engage in conversations about family arrangements.

Mr Newton accepted that Danica had a “pretty basic” command of English and was aware that she could not read English. He also accepted that she was shy and, to some extent, had a degree of difficulty in expressing herself in English. However, he noted that her English did improve quite a lot when she was with people that she knew, indicating that she would go out and talk to different tenants and quite often meet up with Mr Newton’s partner to talk about things: T 171.40-172.45.

Mr Newton gave some rather curious evidence regarding the fact that Danica had informed him that she had visited several fortune tellers. One of the fortune tellers was a tenant in the Nelson Building, and the other was located in Sydney and apparently of “world repute”. According to Mr Newton, Danica informed him that the Sydney fortune teller had told her that her son was going to go to Macedonia, meet a Macedonian girl and have three children: T 174.20-.43, 178.31-179.37.

In his cross-examination, Mr Bilinsky sought to probe not merely the (un)likelihood of Danica making a disclosure to Mr Newton about her family arrangements but also the (un)likelihood of Mr Newton being able or having reason to recall any such discussion with Danica in 2014.

In the context of giving evidence about the fortune teller, Mr Newton also indicated that there had been a tenant in the Nelson Building, a woman whom he referred to as “Kim”, who had apparently disclosed to him that Rade had been “inappropriate” with her. The tenant told Mr Newton that she had spoken with Dimce and told him what had happened. According to Mr Newton, the woman indicated that Dimce had said to her “[w]ell, this is going to be very difficult for me because I’ve just made an agreement with my father and mother”: T 179.44-180.13. Thus, having recalled this previous conversation with a former tenant when Danica mentioned her family agreement during their conversation, Mr Newton said that he was particularly interested in what Danica was telling him.

Mr Newton indicated that the conversation he deposed to in his affidavit with Danica was part of a longer conversation that lasted for about an hour: T 175.23-.24. He disputed the suggestion that the conversation was not really his precise recollection of words spoken but simply his best effort to reconstruct words that he thought had been said 10 years ago: T 175.17-.31.

Whilst there were some curious aspects of Mr Newton’s evidence overall, I am inclined to accept his evidence. Whilst Danica may not have said the precise words which Mr Newton has attributed to her in his affidavit, I accept that words to that effect were said by Danica to Mr Newton.

Mr Newton intimated that he was very interested in what Danica had to say about the agreement with Dimce because it confirmed what Kim had previously said to him: T 180.4-.13. I accept that Mr Newton’s interest in the topic was piqued and this was a reason why he might have recollected the conversation with Danica as distinct from other conversations that might have been mundane and less memorable.

When asked to recall the words Danica had spoken to him on the occasion he was told about the agreement, Mr Newton made particular reference to what Danica described as being essentially her and Rade’s intention to leave their property for the benefit of the grandchildren. Mr Newton gave evidence as follows (T 180.18-.30):

Mr Newton also gave evidence that he recalled conversations with Danica during which she told him that she wanted to leave her share of the Nelson Building to the grandchildren, although it appears she was not “too sure” to include Julian’s child as part of the grandchildren to inherit: T 186.27-.43.

Mr Sochacki, whose firm’s office is located in the MPC, deposed to a discussion he had with Danica sometime after Rade had suffered a stroke (although no date is given, it is likely that this was a reference to the stroke Rade suffered in 2011). The conversation was said to have taken place at the mid-landing of the stairs between the MPC flat and Mr Sochacki’s office. Mr Sochacki deposed to the conversation as follows (CB 151-152[11]):

Mr McGrath referred to this evidence in oral opening: T 7.

Mr Sochacki was not cross-examined and on the face of it I have no reason to doubt his evidence. Nonetheless, there are some aspects of Mr Sochacki’s evidence that are problematic. First, in the conversation, Mr Sochacki indicates to Danica that he was glad that she and Rade gave the MPC to Dimce. However, the transfer of the MPC was pursuant to the deed of gift dated 30 November 2018, after Danica had passed away (the transfer taking place in February 2019). Second, it seems highly unusual that Mr Sochacki would suggest to Danica that she and Rade should transfer “the house in Sydney” to Dimce and Valentina “because it’s like their house anyway”. While Mr Sochacki stated that he was aware that Rade and Danica owned “a property in Sydney which was occupied by Dimce, Valentina and their family”, that fact hardly puts his suggestion to Danica in any real context to make it more plausible.

Lenche gave affidavit evidence of a number of conversations she had with Rade, Danica and Valentina. Relevantly, the conversations included the following.

In approximately 2002, Lenche said that Rade had told her and her husband, in the presence of Danica, words to the effect (CB 176[6]):

At the funeral of Rade’s godmother, Lenche stated that Rade had told her words to the effect (CB 176[8]):

Lenche said that this came as a surprise to her because, when Rade had bought the house for Susanna, he had said to Lenche words to the effect (CB 177[9]):

Lenche then deposed to two conversations taking place in around late 2012, as follows (CB 177[11]-[13]):

Mr Bilinsky established that Lenche had (mistakenly) understood that Susanna’s house had been owned by her, as opposed to being owned by Rade and Danica, and was seemingly not aware that Susanna had ceased living in the property (according to Mr Bilinsky) for three years prior to it being sold: T 195.18-.48. Further, he established that Lenche’s understanding regarding the property which Valentina had said she and Dimce were looking at purchasing was that it was not going to be an investment property, but rather a home: T 196.37-.45.

On the whole, my impression of Lenche was that she was simply seeking to recount what she recalled and not seeking to argue a position or volunteer information unnecessarily.

Mr Trajchevski gave evidence of conversations which he had with Susanna and Rade. The conversations with Rade for the most part took place while Rade was staying with Mr Trajchevski in his family’s home in Melbourne for part of 2021. Mr McGrath made reference (at T 259) to the following part of Mr Trajchevski’s affidavit (CB 186[30]):

Mr McGrath cross-examined Susanna about this statement, intimating that Rade may have said something very similar to her: T 269.35-.36. She accepted that Rade did wish to have Dimce out of the Illawong Property and sell the house, but she said that she had not heard Rade say anything about feeling guilty or wanting to repay her: T 259.37-.40.

Susanna was cross-examined about a conversation which Mr Trajchevski deposed to having with her about Rade’s estate and his dispute with Dimce, in which Mr Trajchevski stated that there was no need to evict Dimce’s family and sell the Illawong Property: CB 190[46]; T 260.1-.22. To this, he deposed that Susanna responded:

Susanna denied that she said anything like that to Mr Trajchevski: T 260.22. I accept her denial.

Mr Mitrovski gave evidence of conversations he had with Rade and Danica which, although not specifically dated, appeared to have taken place in around 1985, as follows (CB 197[12], 198[14]):

Further, seemingly after the plaintiffs’ three children were christened, Mr Mitrovski gave evidence of other conversations as follows (CB 198[23], 199[26]):

After Danica’s death, Mr Mitrovski had a conversation with Rade as follows (CB 199-200[32]):

Ms Ilioska gave evidence of a conversation she had with Rade in the summer of 2010, during which Rade offered to help pay for her tertiary education, as follows (CB 204[10]-[11]):

Between June and August 2017, Ms Ilioska visited the plaintiffs in Australia. She gave evidence of a conversation which took place when Rade and Danica came to stay at the Illawong Property for a few weeks while she was there. She deposed as follows (CB 205[19]-[20]):

Ms Josifovska gave evidence of a conversation she had with Danica in or around July 2010, on the occasion of Rahela’s sixth birthday. Her evidence was as follows (CB 209[8]):

Mr Risteski gave evidence of a conversation he had with Rade in or around July/August 2001, around the time that Dimce had arrived in Macedonia but prior to him meeting Valentina, as follows (CB 214[12]-215[14]):

Mr Risteski went on to refer to a further discussion with Rade, which occurred sometime during the period between 2010 and 2013, as follows (CB 216[25]-[26]):

Susanna referred to a conversation with her father which, in context, appears to have been in or about 2022, or at least at a point of time at which the plaintiffs had indicated that they wanted Rade to transfer the Illawong Property to them. In response to her telling Rade that, she stated that her father has repeatedly said to her words to the effect (CB 305[22]):

Susanna noted that the Illawong Property was purchased by her parents for approximately $180,000: CB 308[45]. She gave evidence that at no time after 1987 did her parents advise her that the Illawong Property had been purchased for Dimce and his family, nor did they advise her that Dimce had contributed to the purchase price of the property: CB 308[46].

Susanna gave further evidence that when she read to her father that part of the statement of claim in which Dimce claims to have contributed the sum of $25,000 to the Illawong Property, this was disputed by Rade. Her evidence was as follows (CB 309[47]):

Ms Bozinovska gave evidence that, in September 2020, she received a couple of telephone calls from Rade and he insisted that she visit him at the Illawong Property: CB 342[9]. She recalled that his communication was difficult, and she had more success in speaking with him in Macedonian than in English: CB 342[10].

Ms Bozinovska had a number of subsequent meetings with Rade. There was one meeting in particular when Rade and the plaintiffs came to her office and had a long discussion about the future options for Rade’s accommodation: CB 345[20]. Relevantly, she stated that Rade had spoken about “transfer of a half of the property in Mullumbimby in Dimce’s name”. Her evidence was as follows (CB 346[24]):

As noted above, the plaintiffs’ claim was framed on the hearing in terms of proprietary estoppel by encouragement, being the doctrine associated with Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285: T 2.3-.5. In cases applying that doctrine, the equity which founds the relief is found in an assumption as to the future acquisition of ownership of property which has been induced by representations upon which there had been detrimental reliance by the plaintiff: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli) at [6] per Gleeson CJ, McHugh, Gummow and Callinan JJ; Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 (Q v E Co) at [15] per Meagher JA (Leeming and Payne JJA agreeing). Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment: Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [21] per Handley AJA (Allsop P and Giles JA agreeing). If these matters are established, equity may compel the owner to give effect to that expectation in whole or in part.

On the issue of whether the relevant representation is sufficient to ground a proprietary estoppel in a family context, I summarised the following principles in Reeves v Reeves [2024] NSWSC 134 (Reeves) at [466]-[469]:

In Slade v Brose [2024] NSWCA 197 (Slade), Ward P (with whom White and Stern JJA agreed) relevantly stated the following at [202]-[206]:

Earlier, the President stated that it is not necessary for a plaintiff to show that he or she assumed or expected that a “particular legal relationship” existed or would exist (referring to the first element of Brennan J’s oft-cited formulation of the requirements for equitable estoppel in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 at 428-429), nor is it necessary to show that the promise was irrevocable – it is unconscionability which will be decisive: Slade at [201].

That being said, in the context of testamentary dispositions, there will be a factual question as to whether the representation or conduct amounted to more than a mere statement of present (revocable) testamentary intention and was instead “tantamount to a promise”: Kramer v Stone [2023] NSWCA 270 at [134]-[135] per Ward P (Leeming and Kirk JJA agreeing), citing Delaforce at [36] and Kenneth Handley, Estoppel by Conduct and Election (2nd ed, 2016, Sweet & Maxwell) at [16-031].

There is no presumption of reliance; rather, it is a fact to be found: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu) at [58] per French CJ, Kiefel, Bell and Keane JJ; Slade at [239].

Importantly, the relevant assumption need only be a “contributing cause”, as opposed to the “sole or predominant cause”, of the course of action or inaction taken: Sidhu at [73] per French CJ, Kiefel, Bell and Keane JJ, [90] per Gageler J; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 735 per Rich, Dixon and Evatt JJ; [1935] HCA 33; Slade at [240], [245]. The party relying upon the estoppel must establish that it would have acted differently in the absence of the relevant encouragement: Q v E Co at [88], citing Sidhu at [66], [67], [69] per French CJ, Kiefel, Bell and Keane JJ and [91] per Gageler J; Reeves at [472].

In considering the “counterfactual position”, I stated the following in Reeves at [472]-[478]:

For an estoppel to be recognised, “the consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made”: Kramer v Stone [2024] HCA 48 (Kramer) at [40] per Gageler CJ, Gordon, Edelman and Beech-Jones JJ.

There is no presumption of detriment; it must be established on the balance of probabilities: Slade at [274], citing Sidhu. The onus lies with the plaintiff to prove the detriment alleged to have been suffered: Sullivan v Sullivan [2006] NSWCA 312 at [91] per Hodgson JA (McColl JA agreeing); Blacket v Barnett [2017] NSWSC 1032 at [392] per Hallen J. However, the concept of detriment in the context of proprietary estoppel is “neither narrow nor technical”: Slade at [274], citing Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis) at [20] per Nettle JA (then sitting on the Victorian Court of Appeal) (Maxwell ACJ and Ashley JA agreeing); see also Q v E Co at [124].

In Q v E Co at [123], Meagher JA characterised detriment as “the prejudice or disadvantage that the party attempting to set up the estoppel would suffer by reason of his or her change of position in reliance on the encouraged expectation, if it were to be departed from” (citing Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675 per Dixon J; [1937] HCA 58).

For the question of relief to arise, there must be detriment that is sufficiently substantial, real or material to bind the conscience of the party said to be estopped: Q v E Co at [127]; Reeves at [495].

The question of detriment is assessed as at the time of departure from the relevant assumption or expectation: Slade at [275].

It is well recognised that detriment in the relevant sense may flow from having significantly changed the course of one’s life: Q v E Co at [125], referring to Riches v Hogben [1985] 2 Qd R 292 (Riches). The detriment suffered can be of a kind and extent that involves “life-changing decisions with irreversible consequences of a profoundly personal nature… beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based”: Donis at [34], quoted approvingly in Sidhu at [84].

In Riches, the relevant detriment was considered to flow from the plaintiff selling his possessions, giving up his house in England and bringing his wife and five children to Australia in reliance on an expectation that the defendant, his mother, would provide a house in his name if he and his family migrated: see Riches at 301.

The provision of assistance and care to a person in need of it can also constitute detriment for the purposes of equitable estoppel: see e.g. Daniel v Athans [2022] NSWSC 1712 (Daniel) at [214] per Robb J; Zupicic v Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 at [491] per Sackar J.

Any countervailing benefit is a matter that may be taken into account in assessing whether the party attempting to set up the estoppel would be prejudiced or disadvantaged if the expectation were departed from: Q v E Co at [154]. In Q v E Co, Meagher JA stated at [155]:

In Soulos v Pagones [2023] NSWCA 243; (2023) 416 ALR 181 (Soulos), Ward P stated at [384] that “there is no doubt that, in considering the question of detriment, account may be taken of countervailing benefits which have accrued to the party invoking the estoppel”. To similar effect, Robb J stated in Daniel at [218] that: “[t]he law of equitable estoppel requires that the assessment of a plaintiff’s detriment involve consideration of any countervailing benefit that has accrued to them under the arrangement encouraged by the representations”.

Generally, the countervailing benefit must have been received as a consequence of a change to one’s position in reliance on the promise or representation: Soulos at [394].

Subsequently in Slade, Ward P considered that countervailing benefits are more relevant for the consideration as to the unconscionability of departure from the promise than to the question of detrimental reliance: Slade at [285]. According to her Honour, “[t]he real question is whether the countervailing benefits in effect subsumed or sufficiently made good the representations so as to make it not unconscionable for the [representors] to depart from [the] representations”: Slade at [287].

As a preliminary observation, I must admit that I find the timing of the various representations is somewhat vague. Notwithstanding that, I make the following findings in respect of the various representations based on the evidence that was before me.

I accept Dimce’s evidence that there was some discussion between him and Rade in or about 1984 in which Rade asked Dimce to return to the family, intimating that if he sold his share in the Huonbrook Property he would be able to live with the family or otherwise be provided with secure accommodation.

I am less convinced that Rade use words such as “guarantee the security of your future”. Nonetheless, I accept that the conversation was such as to reasonably create in Dimce an expectation that, if he sold his interest in the Huonbrook Property, Rade would provide him with some form of secure accommodation going forward.

However, as noted above, Mr McGrath accepted that the Security Representation alone would not be sufficient to ground the estoppel, and so it is necessary to consider the subsequent representations alleged.

I accept Dimce’s evidence that he sold his share in the Huonbrook Property to Ms Bain for (approximately) $25,000 in or about the latter half of 1984: CB 42[22]. It is supported by the evidence of Ms Bain, who was not cross-examined: CB 194[7]-[9].

In respect of the Family Business Investment Representation, Dimce gave evidence as follows (CB 43[24]-[27]):

I am not persuaded that the Family Business Investment Representation was made in the form which was pleaded or which was put by Mr McGrath on the hearing. Specifically, I am not satisfied that there was a representation made that, if Dimce invested his savings with Rade and Danica, this would “guarantee” that he would “receive his rightful share of the inheritance”, whatever that might mean.

Exactly how any such arrangement would have worked was not explained by Dimce. It is unlikely that at that point of time, Dimce would have parted with his savings without some assurance or expectation that the monies would be available to him. I do not consider that at this early stage, Dimce would have been willing to “invest” his savings with Rade as a means of guaranteeing an unspecified “rightful share of” whatever inheritance he might eventually have. Up to and indeed after that time, Dimce showed no particular inclination to live with or otherwise tie himself or his financial destiny closely to his father. Rather, for the next decade he charted his own course.

I am nonetheless satisfied that Rade had given some encouragement to Dimce in or around 1985 to hand over his then savings with a view to Rade investing them in some way so that they may increase in value at a higher rate than Dimce could achieve by accruing interest in a savings account. It seems to me more probable than not that the conversation was somewhat generalised, with Rade giving Dimce some comfortability about the fact that the monies would be grow at a rate higher than in a bank, and at least potentially be available to Dimce to access if need be.

The Illawong Investment Representation is premised on the fact that Dimce did hand over his savings of $25,000 to Rade in or around 1985. This fact was challenged by Mr Bilinsky. Thus, in order to make findings on the Illawong Investment Representation, it will be necessary to first make findings on whether Dimce handed over his savings to his father around that time.

Mr Bilinsky submitted that Dimce’s evidence in relation to having contributed $25,000 towards the Illawong Property was unsubstantiated by any documentation and not plausible, given his then existing circumstances whereby he would have needed those savings to support and promote himself as an artist in circumstances where his parents were not prepared to continue to financially support his endeavour: DCS [10], citing T 58.16-59.34, 60.50-61.26.

Dimce’s affidavit evidence on this issue is as follows (CB 45[42], 46[47]-[48]):

Dimce was cross-examined regarding his use of the $25,000 (commencing at T 57.10). During his cross-examination, I enquired about that sum in his evidence as follows (T 61.41-62.16):

Mr Bilinsky challenged Dimce in relation to his evidence regarding the $25,000 as follows (T 62.24-.28):

A little later, I sought to clarify Dimce’s evidence and he responded as follows (T 63.10-.30):

There is very little material which corroborates Dimce’s version.

In cross-examination about her initial conversations with Dimce, Valentina gave evidence that alluded to Dimce having given money to his parents as follows (T 113.2-.11, my emphasis):

Mr Bilinsky submitted that this part of Valentina’s evidence was inconsistent with the pleaded representations and the timing of those pleaded representations: T 321.8-.9. Nonetheless, it gives support for some funds having been given by Dimce to his parents.

I have found Dimce’s evidence about the “investment” of the $25,000 with Rade a particularly challenging part of his case.

First, the fact that Dimce “invested” the $25,000 with Rade is denied by him in his defence, as is the fact that the Illawong Investment Representation was made to Dimce.

Secondly, neither the “investment” nor the representation were documented in any way. However, that may not be surprising for financial arrangements between father and son.

Thirdly, in contrast to the subject-matter of the later representations, none of the other deponents (that is, other than the plaintiffs) give any evidence which corroborates the fact that Dimce “invested” any particular sum of money with his father. Even in respect of Valentina, her evidence is based upon what she says that Dimce told her around the time that they met in 2001: see e.g. CB 111[11].

Fourthly, in a forensic sense, the Occupancy Proceedings provided an opportunity for Dimce to set out the full extent of the grounds upon which he bases his entitlement to occupy the Illawong Property. Neither the grounds of Dimce’s application in the Occupancy Proceedings (CB 710-712) nor his statement in support of those grounds, both prepared on 13 December 2021, refer in any express way to Dimce having invested any significant amount of savings with his parents for the purchase of the Illawong Property or its renovation, let alone a specific sum of $25,000.

On balance, I am just persuaded that Dimce handed over some monies to Rade in or around 1985. It seems relatively clear that the monies were not handed over immediately after Dimce received payment from Ms Bain for the sale of his share of the Huonbrook Property. However, I am less confident that the precise sum handed over to Rade was $25,000. I find that in all likelihood Dimce would have drawn down on the sale proceeds at least to some degree, but nonetheless would have had a reasonable amount, whether it be $20,000 or some other figure, which represented his “savings”.

It follows that I am not persuaded that the Illawong Investment Representation was made in the form in which it was pleaded. In respect of what funds were handed over, I accept that Rade indicated to Dimce that they had been “invested” in the Illawong Property in the sense of being part of a common pool of family funds from which the costs of the renovations were paid.

I accept that Rade told Dimce in or around 1987 that the funds he had “invested” had doubled, or something to that effect. However, were it necessary to decide, I do not consider that the practical effect of that representation would have been at all clear to a reasonable representee in Dimce’s position. There is no indication that Rade had ever paid Dimce any interest that had “accrued”. Further, it is quite unclear to me how, objectively, Rade could have properly asserted that within barely two years the sum that had been initially “invested” had somehow doubled in value without any explanation as to how that had occurred. Curiously, Dimce’s evidence was that, whilst he had been told that his “investment” had apparently doubled between around 1985 and 1987 from $25,000 to $50,000, by 1998 his parents were telling him that his “investment” was still $50,000: CB 47[56]. Rather inexplicably, the fact that his “investment” had apparently ceased accruing any interest at all after 1987 did not seem to raise any issue for Dimce.

The reason why I do not consider that the point needs to be decided is because the crux of the plaintiffs’ estoppel case rests on the subsequent representations alleged to have been made by Rade and Danica.

I am satisfied that the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation were made in essentially the forms which Dimce contended. I am also satisfied that Dimce relayed the representations to Valentina essentially as set out in his evidence.

There are no contemporaneous independent witness accounts of the representations made by Rade and Danica in or about 1998 and 2001. However, part of my preparedness to accept Dimce’s evidence is based upon the fact that there is subsequent support from a number of other deponents who give evidence of discussions with Danica and/or Rade consistent with the representations, or at least parts of them, having been made.

It is true that the conversations which Danica and/or Rade had with those deponents took place over various years, at points of time quite remote from the timing of the relevant representations relied upon by the plaintiffs, and in some cases well over a decade later. There is of course some risk that statements made by Rade and/or Danica quite a few years after the timing of the relevant representations might not accurately reflect what had initially been said to the plaintiffs. However, in this case, they are broadly consistent, and I consider that they provide a measure of appropriate evidentiary support for the plaintiffs’ claims that the representations were made both in the terms and at the times which they contend.

Independent of the plaintiffs, the most complete version of the fourth to sixth representations appears in the evidence of Mr Newton, which he recalled from his conversation with Danica in around 2014: see CB 142[8]. As noted earlier, I am inclined to accept his evidence.

Mr Risteski’s evidence about the conversation he had with Rade in or about July/August 2001 is largely consistent with Rade having made the Occupation and Inheritance Representation, in particular when he told Mr Risteski that “Dimce will have a house in Sydney”: CB 215[13]-[14].

Ms Josifovska’s evidence of her conversation with Danica in or around 2010 is also consistent with the Occupation and Inheritance Representation and the Care and Management Representation having been made: CB 209[8].

On surveying the evidence, there are a number of other deponents who mention certain elements of the representations. Without attempting to be exhaustive, they include:

Meanwhile, some deponents gave evidence which, whilst rather vague and generalised, was nonetheless broadly consistent with the representations having been made, including:

However, there were also themes in the evidence that Rade and Danica wished to benefit their grandchildren specifically. For example, there is evidence from Mr Newton that Danica had told him on several occasions between 2014 and 2017 that she wished to leave her half share of the Nelson Building to the grandchildren: CB 145[41]. Also, Ms Josifovska’s recounting of her conversation with Danica in 2010, whilst referring to the plaintiffs accepting her and Rade’s proposal, emphasised that it was “so that we could ensure that our only grandchildren have a secure roof over their head…”: CB 209[8].

Considering the evidence as a whole, I do not consider that the references (in particular from Danica) to benefitting the grandchildren were intended to detract from the effect of the fourth to sixth representations, in particular the Occupation and Inheritance Representation, as they had been made to the plaintiffs.

I am satisfied that Rade and Danica from time to time repeated the substance of what had been represented to the plaintiffs in the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation.

Mr McGrath submitted that the language said to have been used by Rade and Danica was “definitive and not couched in terms of revocable intentions but explicit promises as part of bargains”: POS [105]. This was said to indicate that the representations were “intended to be immediately binding and not subject to a change of mind by making an inconsistent will or transferring the Illawong home to anyone other than Dimce”: POS [105]. In particular, Mr McGrath asserted that (POS [102]):

As to demonstrating an intention to create legal relations in the context of family circumstances, Mr Bilinsky emphasised that “it would be easy for imprecise or casual discussion to pass through the interpretation of an interested person into a recollection of concrete assurance or promise”: DCS [5], referring to Hampson v Hampson [2010] NSWSC 217 at [16] per Bryson AJ.

Mr Bilinsky submitted that, even if the alleged representations are found to have been made, they were “merely a statement of a present (revocable) testamentary intention, or were otherwise tantamount to a revocable promise”: DCS [7]. In opening, he submitted as follows (DOS [64]-[67]; see also DCS [5]):

Mr Bilinsky also asserted in closing that the alleged representations were “ambulatory” in nature, which have now been “distorted and turned into what is said to be an irrevocable promise or agreement which now binds the conscience of the defendant”: T 303.36-.45, 309.17-.21. The representations were said to have been distorted from the plaintiffs’ “hopes and expectations based upon their implied understanding of what they would get”: T 310.9-.10; see also DOS [29].

As noted earlier, Mr McGrath appeared to approach the matter on the basis that the Security Representation was not itself sufficient to ground an estoppel, but was “part of the eventual family arrangement that was made”: T 266.

For reasons explained above, I am not satisfied that the Family Business Investment Representation and the Illawong Investment Representation were made in the forms claimed by Dimce, and accordingly there is no occasion to address any binding effect of those alleged representations.

There was evidence of conversations involving Rade, including from Mr Risteski, which did not suggest that the ultimate arrangement between Rade and the plaintiffs was based on a binding agreement or arrangement, as distinct from being a form of Macedonian custom and preparedness on the part of Rade to help and support in Dimce.

However, in relation to the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation, I am generally satisfied that these representations were made in a context where they were intended by Rade (and the plaintiffs) to have an effect beyond mere family or cultural expectations.

The plaintiffs gave evidence to that effect. In respect of other deponents who swore affidavits on the plaintiffs’ behalf, the repeated use of language akin to “agreement”, “arrangement” or “obligation” (in particular, in the evidence of Mr Newton, Lenche and Ms Josifovska) suggests to me that the statements were intended by Rade (and Danica) to have a type of binding force.

The plaintiffs’ case for reliance in respect of the alleged representations to some extent suffered from a want of clarity and precision. Nonetheless, I understood it as focusing upon essentially three categories, being:

I note that the last category was (I must admit somewhat unusually) characterised by Mr McGrath as part of fulfilling a kind of “counter-representation” or representation made by the representees (i.e. the plaintiffs) to Rade and Danica as part of the overall “single family arrangement”, rather than necessarily being characterised as reliance per se: T 270. It has been identified above as the Care and Management Representation, and I consider that it was made to Rade and Danica. Nonetheless, I propose to deal with that category under the issue of reliance, as that is where I consider it most appropriately belongs.

The nature of these categories of reliance differed between Dimce and Valentina, although there was naturally significant overlap.

In closing, Mr McGrath focused only on the plaintiffs’ decision to get married and raise a family as demonstrating their reliance: T 287.11-288.2. However, for completeness, I will set out in detail below what, as I understand the plaintiffs’ case, is said to constitute their evidence of reliance on the alleged representations.

According to Dimce, the “main topic of discussion” between him and his parents from his mid-twenties, after having “invested” his savings with them, was his marital status: CB 43[28]-44[29]. His affidavit evidence was as follows (CB 44[30]-[31]):

With a view to finding a Macedonian wife, Dimce travelled to Macedonia in mid-1986. He dated a number of Macedonian women but found no potential “life partner” by the time his visa expired at the end of that year: CB 45[36].

Seemingly in or about 1998, after his parents made the Occupation and Inheritance Representation to him, Dimce deposed that (CB 47[57]-[58]):

Significantly, Dimce then stated (CB 47[59]-48[60]):

It was at this point Dimce said that the Employment Representation was made to him by his parents: CB 48[61].

Dimce was cross-examined extensively on the notion that his marriage to Valentina formed part of his reliance on the representations made by Rade and Danica, in particular the Occupation and Inheritance Representation and the Employment Representation.

Dimce appeared to accept, or rather he asserted that he had never denied, that he had independently wanted to get married and have children: T 68.38-.40. He asserted that, by around the late 1990s, he had been “ready for that sort of life for a long time”: T 68.36.

Dimce’s cross-examination on this issue continued as follows (T 72.12-.37):

According to Mr McGrath, Dimce’s cross-examination on reliance “culminated” in the following exchange (T 73.12-.21):

Immediately following that exchange, Dimce gave the following responses (T 73.23-.33):

In her cross-examination, Valentina accepted that, at the time of meeting Dimce in August 2001, she wanted to get married if she met the right man: T 110.25-.27, 111.19. She further accepted that she had a “personal aspiration” to start a family with the man that she would ultimately marry: T 110.40-.46. However, Valentina qualified that by saying “but before you [start] a family, you need to think how you provide for the family as well”: T 110.37-.38.

Subsequently, in a passage referred to by Mr McGrath in closing, the following exchange took place (T 114.3-.47):

According to Mr McGrath, the first of a number of situations in which Rade (and to some extent Danica) influenced key life and financial decisions of Dimce (and later Valentina) through inducements, including an offer of a house, occurred in the second half of 1984 when Dimce sold his share in the Huonbrook Property for approximately $25,000 and returned home: POS [15]-[16]. Dimce’s evidence was that this was done following Rade making the Security Representation to him and, in doing so, Dimce “obeyed Ray’s wish and accepted his guarantee of a secure future, giving up [his] independent lifestyle”: CB 42[22].

Dimce subsequently chose to accept Rade’s “offer” to “invest” his savings of $25,000 with his parents: CB 43[27]; POS [18]. This was said to be in reliance upon the Family Business Investment Representation made by Rade, in particular the offer of a greater interest rate than Dimce would be able to find elsewhere. In response to a question from the Bench, Dimce clarified (T 63.16-.19):

As noted earlier, in or around late 1987 after the purchase of the Illawong Property, Dimce deposed that his parents had told him that his $25,000 in savings “had now grown to $50,000” and would be used as part of the proposed renovations to the property, “thus ensuring [his] interest in the property”: CB 45[42].

In 1998, Dimce deposed that his parents reiterated to him the fact that his savings “had grown to $50,000”: CB 47[56]. Further, he said that his parents then informed him that his “investment” had been used to pay for an extension to the southern end of the Illawong Property, which Rade had been engaged in completing for a number of years. The renovation consisted of a self-contained large bedroom comprising separate living quarters from the rest of the house. Dimce said that his parents explained that the renovated area constituted his “share of the property” which would house his future family: CB 47[56].

Whilst Dimce’s “investment” of his savings (alleged by him to initially have been $25,000, but which I find was likely less than $25,000) was by far the largest financial contribution to his parents and (on his evidence) the Illawong Property, he gave evidence that he and Valentina also undertook the following expenditure in improving the Illawong Property (CB 51[85]):

Dimce’s evidence placed much emphasis on his aspirations for a career as an artist. This passion was said to have started sometime after finishing secondary school while he worked for his father on the plantation in Mullumbimby: CB 41[10].

At the time of selling his share in the Huonbrook Property, Dimce said that he had been taking art lessons and begun exhibiting in the local region: CB 43[23].

According to Dimce, by 1985 he had “made contacts in the art world” and shared with his parents his plans to move to Sydney and pursue his studies, while supporting himself with his savings and working as an artist: CB 43[26]. However, Rade was said to have been “against the idea” and subsequently made the Family Business Investment Representation, after which Dimce did not to pursue those plans.

Then, by the end of 1987, Dimce said that he had “resolved to put [his] abilities to the test” and established a relationship with a patron, Duncan MacKellar, who would support his career for some 12 years: CB 45[43]. Dimce’s evidence went as follows (CB 45[44]-[45]):

During his cross-examination on this period of independence from his parents between the late 1980s and mid to late 1990s, Dimce said further that (T 60.12-.16):

Around this time, Dimce said he had created “momentum” with his art career and had made several enquiries of Rade to access his savings in order to further promote it: CB 46[47]. In response to those enquiries, Dimce said that his father told him: “I cannot give you your money because it has been invested in the house” (I infer the Illawong Property). Dimce further deposed (CB 46[48]):

I pause to note that this was not one of the specific representations which Mr McGrath identified as being relied upon by the plaintiffs. However, in the context of Dimce’s affidavit, it appears to have been made in the lead up to the Occupation and Inheritance Representation.

According to Dimce, his parents were not happy with him “living an independent life”, nor with his pursuit of a career in art, and “continually pressured” him to “return to the family”, offering employment in the family business and accommodation at the MPC flat: CB 46[50].

By 1998, Dimce returned to live full time at the MPC flat, at which time he was busy working on a number of art commissions, in addition to taking on caretaking duties for the Nelson Building and the MPC: CB 46[54].

With the Illawong Property becoming the plaintiffs’ primary residence after 2009 (when their eldest child commenced schooling), Dimce deposed that (CB 51[89]-52[90]):

However, after the above achievements between 2011 and 2015, Dimce said that he was “forced to discontinue with [his] career due to the necessity of looking after [his] parents as a result of their declining health, and [his] commitments to the properties as well as [his] own family”: CB 52[92].

In cross-examination, Dimce accepted, by reference to his tax returns during the period from 2004 to 2019, that he did not derive money from his career as an artist during that period. Rather, he “did some exchanges for some portrait commissions”: T 88.40-.41. He accepted that he had not had a commercial career as an artist since around 1999 or 2000: T 89.22-.23. Indeed, he appeared to characterise his artistic vocation as more akin to a “personal vocation”, as follows (T 90.18-.29):

Dimce’s curriculum vitae was in evidence, along with some examples of his work: CB 350-354. The substantive content of his curriculum vitae is as follows:

Within the first week of her arrival in Australia with Dimce in August 2002, Valentina said that she told Rade and Danica about her plan to dedicate the next two to three years to complete her learning of English, and then to go to university to complete the necessary exams to gain recognition of her university degree from Macedonia: CB 112[22]. The evidence indicated that her Macedonian qualifications consisted of a bachelor’s degree in early childhood education and a diploma in finance and bookkeeping: CB 53[104], 110[3].

Valentina deposed to (lengthy) conversations with Rade and Danica in which they encouraged her to focus on raising a family: CB 115-117[25]-[26]. She said that “[e]ven though I was unhappy with the situation, I sacrificed my wishes and plans and did not go to university”: CB 117[27]. In cross-examination, she accepted that she had not made any enquiries around that time as to possible forms of study which were more accommodating to having a family: T 137.47-138.12. She also clarified that it had been her plan to have children later (specifically, around six years later), rather than not at all, had she gone to university in Australia: T 134.43-.49, 141.2-.5.

Rade and Danica were also said to have discouraged Valentina from obtaining work outside of the family in around late 2008: CB 120-121[46]. Part of their reasons for taking such a view was that it would be “embarrassing” to Rade and Danica, due to a perception that they did not have enough money to support the family.

Lenche confirmed as much in her affidavit evidence and cross-examination: CB 177[15]-178[17]; T 197.29-.46. Lenche also gave evidence of three conversations between Rade and Valentina which she heard, in which she claims that Rade told Valentina she was not allowed to work: CB 177[14]. The conversations were as follows:

Lenche was tested in relation to the conversations about Rade telling Valentina that she did not need to work: T 197.26ff. Mr Bilinsky made it clear that he was trying to distinguish between a situation with someone (in this case Rade) not wanting a daughter-in-law to work on one the hand, and on the other hand actively prohibiting her from working: T 198.19-.21. Lenche’s evidence was essentially to the effect that Rade told Valentina that she could not work and he did not wish to be embarrassed by her working: T 197.26-199.36.

Dimce’s evidence was that Valentina was able to continue her education in January 2021 (after Rade’s departure from the Illawong Property), and she attained further professional accreditation through TAFE in June 2021 with a Certificate IV in Education Support and a Statement of Attainment in Business Administration and Computing Skills in late 2021: CB 53[105]. From April 2022, Valentina has been working “most days of every week” at a number of schools in the Sutherland and St George areas of Sydney as a teacher’s assistant: CB 54[106]. I note that, in re-examination, Valentina indicated that she finished her Certificate IV just prior to the first COVID-19 lockdown in New South Wales: T 159.33-.42.

When asked if there was any reason why she studied at that time and not earlier, Valentina gave the following reasons: she had “a lot of family responsibilities”, which at times involved acting as a single mother while Dimce was in Mullumbimby; she had been “employed” by Rade, which required travelling to Mullumbimby herself; and she had been helping Danica “with everything” because she did not have a driver’s licence: T 160.6-.24.

Dimce deposed that, in early 2011, Valentina and Danica attended a viewing of a property for sale in Heritage Drive, Illawong: CB 52[94]. Dimce said that the sale price was $650,000 and “Valentina was convinced it was an investment we should make”. With savings of approximately $100,000 at the time, Valentina and Dimce agreed that the property was within their means: CB 52[95]-[96]. Dimce stated further (CB 52[97]-[102]):

In cross-examination, Dimce accepted that neither he nor Valentina had approached a bank for a mortgage in order to purchase the property: T 91.49-92.2. He said that they did not “get to the point of being able to try for it”: T 92.7-.8. It appears that part of the reason for the plaintiffs not applying for a mortgage was because they could not secure Rade as guarantor: T 91.6. At the time, the plaintiffs were each earning a gross amount of approximately $21,000 per year: T 93.10-.14.

Dimce also clarified that the $100,000 which they had saved by that time had for the most part accrued from wedding gifts from the Macedonian community, cash gifts from the three christenings of their children, and money saved from “government benefits” for their children: T 92.37-.40. Those government benefits were said to be a form of “family child benefits”: T 101.45-.46.

Valentina’s affidavit evidence was to similar effect: CB 123[55]-125[60].

As noted above, Dimce was employed in the family business in early 1997 and, by 1998, had returned to live full time at the MPC flat whilst taking on caretaking duties for the Nelson Building and the MPC: CB 46[52]-[54]. In particular, Dimce deposed that (CB 47[55]):

Upon Valentina coming to Australia, the couple assumed caretaker duties for the properties in Mullumbimby as well as the Illawong Property, depending upon where they were staying at the time: T 80.29-.31. During their extended stays in Mullumbimby, Dimce deposed that their duties included (CB 50[79]):

In cross-examination, Valentina indicated that, between 2002 and 2009, she and Dimce would generally alternate with Rade and Danica between Mullumbimby and Sydney for approximately two to three months at a time: T 135.14-.29.

In respect of their duties at the Illawong Property, Dimce’s evidence went as follows (CB 50[80]-[82]):

In their affidavit evidence, the plaintiffs set out various instances of day-to-day care and assistance which they gave to Rade and Danica, particularly as their health declined. Several references to such evidence were listed by Mr McGrath during his closing submissions: T 338.14-.29. Generally, such care and assistance consisted of driving Danica for regular shopping trips, taking Rade and/or Danica to doctor appointments or for other medical treatment, undertaking domestic household duties (including preparing food or washing clothes) and regularly accompanying Rade and/or Danica (mostly Rade) to and from Mullumbimby. As set out below, the extent of the assistance given, particularly by Dimce, is said to have increased over the years.

Valentina’s affidavit evidence of her caretaking of Rade and Danica included the following (CB 118[33]-[36]):

In respect of his assistance to Danica and Rade following Danica’s diagnosis of cancer in September 2017, Dimce’s evidence was as follows (CB 61[185]):

Mr Newton devoted his time to the welfare of Rade and Danica while they were in Mullumbimby when Dimce was absent: CB 62[189].

Following Danica’s passing, Rade lived with the plaintiffs and their family at the Illawong Property: CB 63[198].

According to Dimce, he “chaperoned” his father regularly to Mullumbimby throughout the remainder of 2018 and 2019, spending periods of up to three weeks at a time in Mullumbimby: CB 63[199]. Dimce further deposed that (CB 63[200]):

Following that period, the effect of Dimce’s evidence was that, while Rade stayed with other family members for certain periods of time as their relationship declined (including staying with Mr Trajchevski in Melbourne between May and June 2021), he was generally caring for Rade. According to Dimce, from approximately the end of 2020, Rade refused to return to the Illawong Property: CB 68[246]. While periodically returning to Sydney, Dimce would also live with Rade at the MPC flat until August 2021.

In his outline of submissions, Mr McGrath submitted that (POS [106]):

In his closing submissions, Mr McGrath submitted that the plaintiffs’ position was that their marriage and life together “would never have got out of the cradle” if it had not been “viable”: T 287.19. He further submitted that neither of them would have contemplated marrying and embarking on having their family unless they had the assurances that they had income and security of accommodation, and an eventual ownership of the home, provided by Rade and Danica: T 287.27-.30. Finally, it was submitted that it is “highly probable” that the representations of Rade and Danica were a “contributing cause” in terms of the test formulated in Sidhu and used in a number of other cases: T 287.49-288.1.

Meanwhile, Mr Bilinsky identified the following “concessions” in Dimce’s cross-examination as bespeaking of the reality that, in finding a Macedonian woman, getting married to her and starting a family, Dimce was not placing reliance on anything that his parents had represented to him and was not performing his part of “an agreement” with them: DCS [19]. Rather, it was submitted that Dimce was acting “on his own accord pursuing his own wishes and desires as a free agent”. The “concessions” were as follows (DCS [18]):

Mr Bilinsky submitted that, from giving the above evidence, Dimce then sought to “pivot” or “backtrack” and he suggested that his decision to marry was only something he would have done “if it was viable”: DCS [20]; T 320.

In respect of Valentina’s cross-examination, Mr Bilinsky noted that she acknowledged that she had also wanted to get married and start a family (referring to T 111.17-.29): DCS [22]. In terms of her reliance upon things that Dimce had said to her before she accepted him, her immediate response was that it related to matters such as “where we will live in Australia” (T 112.37-.38) and “where I will go and where I will stay” (T 113.24-.29). It was then submitted that (DCS [23]):

Given the nature of Valentina’s responses in respect of reliance appearing “like arguments for the existence (and terms) of an agreement”, Mr Bilinsky submitted that the Court ought not find Valentina to be a reliable witness: DCS [24].

In respect of Dimce’s supposed financial contributions, Mr Bilinsky submitted that the more plausible probability was that Dimce had applied his savings to live independently and establish himself as an artist, as opposed to making any kind of investment in either the family business or the Illawong Property: T 315.21-316.10; see also DOS [33].

In his closing submissions, Mr McGrath characterised Valentina’s counterfactual position in the following terms (T 288.42-.48):

At that point, Mr Bilinsky (correctly) observed that there is no evidence of any work undertaken by Valentina in Macedonia: T 288.50. In response, Mr McGrath contended that the counterfactual was not “explored in any depth” because “the change in all the factors was so colossal” that it did not make sense to identify one of a “huge number” of possible lives which Valentina could have led: T 289.2-.4.

Mr Bilinsky characterised the counterfactual positions of the plaintiffs as follows:

In reply, Mr McGrath submitted that, in respect of Dimce’s counterfactual position, it is likely that he would have continued with “following his art” and living “cheaply, but satisfyingly”, following his passion on the north coast of New South Wales: T 335.46-.48. The following exchange then took place (T 335.48-337.42):

Whilst I will deal with the submissions of the parties on the counterfactual position below, I will address the submissions of Mr McGrath in the above extract here, insofar as they pertain to Rade’s suggested early demise and the subsequent hypothetical chain of events, as they appear to be misconceived. The purpose of counterfactual reasoning in determining a plaintiff’s reliance (if any) is to consider what the plaintiff would have done had he or she been told that the relevant promise would not be kept: see Q v E Co at [89]; Priestley v Priestley [2017] NSWCA 155 at [124] per Emmett AJA (McColl JA agreeing). It is unclear to me what, if any, relevance there is in speculating on the possible adverse effect there could hypothetically have been on the party sought to be estopped, nor in attempting to construct a hypothetical chain of events, involving decisions of people other than the plaintiff, which picks and chooses certain elements of real events insofar as they assist a particular argument. In this case, there was no basis to suggest that Rade would have died earlier than he in fact did. Nor was there any basis to suggest one way or another how Rade’s testamentary dispositions would have changed. In any event, those matters are irrelevant in considering the plaintiffs’ reliance here.

Broadly speaking, I accept that the assumption created by the fourth to sixth representations, that the plaintiffs would live in and inherit the Illawong Property and be employed by Rade and Danica in return for caretaking duties, was a contributing cause in them making their respective life decisions to get married and raise a family in Australia. I accept their evidence to the effect that they had independently wished to get married and have a family, but had understood that they would need some guarantee of support from Dimce’s parents to make that course viable.

As to Dimce, absent that guarantee, it is likely that he would not have married or had a family, as on his own evidence his artistic career was not going to be enough to support one. In this regard, there is some force in Mr Bilinsky’s submissions on Dimce’s counterfactual position. Indeed, it is not far removed from Mr McGrath’s submission that Dimce would have continued with “following his art” and living “cheaply, but satisfyingly”, following his passion on the north coast of New South Wales. Whether one characterises it that way or as the life of a “struggling artist” is not something I need to decide.

I accept that the assurance of support in the terms relayed by Dimce was particularly significant for Valentina in deciding to move to Australia with him. As both parties appeared to submit, Valentina would not have moved to Australia on the counterfactual. However, given there was little to no evidence as to Valentina’s circumstances prior to meeting Dimce in Macedonia, it is difficult to say with any certainty how her life would have been different there, or what she was forgoing.

I have already addressed Dimce’s claims in relation to the $25,000 “investment”. In respect of whatever funds were handed over to Rade, Dimce parted with those funds before the Illawong Investment Representation occurred as claimed and I do not consider that it could relevantly be an act of reliance in respect of any subsequent representations.

I accept that Dimce otherwise made some very limited expenditure on the Illawong Property after 2002. However, I do not accept that his expenditure was as extensive as he asserted. His evidence is contrary to Valentina’s evidence that she and Dimce were able to save money because Rade under no circumstances allowed them to undertake any renovations at the lllawong Property, with Rade telling her that “[w]hile I am alive, I decide what and how things will be done and who will pay for what. You have nothing that you need to pay for”: CB 122[51]. Further, Dimce acknowledged that he had not produced a single invoice or receipt to show any payment for any of the works on the Illawong Property which he alleged that he undertook and paid for: T 77.11-.49.

In relation to Dimce’s career, I accept that for a period of about 10 years, from the end of 1987 or early 1988 to 1998, he pursued an art career and lived independently from his parents.

In cross-examination, Dimce indicated that he had come back to his family after that period because of “the ten years of psychic pressure” from his parents wanting him to come back: T 64.25-.26. Although, on the case pleaded and articulated by Mr McGrath in closing, the Occupation and Inheritance Representation appears to have occurred soon after Dimce returned (but still in 1998), I accept that Rade had previously provided some indication to Dimce that he would inherit the Illawong Property, and that Dimce would be employed by his parents and be able to live in the MPC flat: CB 46[48]-[50]. I am satisfied that Dimce’s assumption particularly in relation to the latter two matters was a contributing cause to him returning from his period of independence in 1998.

Following Dimce’s marriage to Valentina and the couple having children, I accept that Dimce had to some material degree put his artistic vocation to one side. While he was able to take on more artistic work after 2009, as his parents’ health declined he had to focus on caring for them in addition to his family and the properties. I accept that the expectations created by the combination of the fourth to sixth representations were a contributing cause to Dimce prioritising those responsibilities over his artistic vocation, amongst others (including, no doubt, Dimce’s filial obligations towards his parents).

In respect of Valentina, I accept that she decided not to defer having children for six years or so (in order to pursue further study in Australia) in response to pressure from Rade and Danica to have children. The expectation of receiving financial support, accommodation and inheritance from them would have likely contributed to that decision. I accept Valentina’s evidence as to the reasons why she completed her further study in 2021 and not earlier.

I also accept that Valentina did not pursue employment opportunities outside of the family as a result of Rade’s fervent view, which was also expressed to people outside the immediate family such as Lenche, that, as a result of their arrangement, Valentina and her family would be provided for. Had Valentina not held an assumption to that effect, I accept that she would have acted differently.

Mr McGrath made submissions that Dimce and Valentina were denied an opportunity to purchase the property at Heritage Drive, Illawong as an investment: POS [47]-[48].

Dimce was cross-examined about the investment opportunity briefly. Although not expressly put, the tenor of the cross-examination by Mr Bilinsky was that, realistically, the purchase of the property was beyond Dimce and Valentina’s financial means at that point of time: T 78.1-.31.

However, for the following reasons, I am not persuaded on the balance of probabilities that, if the plaintiffs were indeed seriously looking to purchase the Heritage Drive property, it was as an investment rather than a home. First, Valentina’s evidence indicated that in 2011 the plaintiffs wished to put their savings into renovating the Illawong Property, however Rade and Danica had refused: CB 122[50]-[52]. Secondly, Lenche’s evidence was that she had understood that the plaintiffs had viewed a nearby house in Illawong not for investment purposes but rather for a home (although this was based off a conversation which she said took place in October 2012, rather than 2011): CB 177[12]; T 196.37-.45. I think the inherent likelihood is that Valentina, having been rebuffed by Rade in terms of renovating the Illawong Property, was looking for alternate accommodation.

Even if I be wrong on that, I am not convinced on the evidence before me that the plaintiffs had sufficient financial means in their own right to be able to purchase the Heritage Drive property as an investment in 2011.

Part of Valentina’s cross-examination focused upon the asking price of the property and whether she had made follow-up enquiries with the agent handling the sale: T 146.36-147.29. Valentina indicated that she did not make follow-up enquiries because Rade was not happy with any proposed purchase of the property: T 148.8-.22.

Further, Dimce acknowledged that he had not adduced any supporting evidence that he and Valentina had applied to a bank, or any other financial institution, for approval of any kind of loan to be able to purchase the property: T 90.31-.44. Dimce accepted that he did not approach a bank for a loan, nor did he know that he and Valentina were going to be able to get one (considering that they each had a gross income of $21,000 at the time): T 91.45-92.7. His claim was simply that he and Valentina did not “get to the point of being able to try for it”: T 92.7-.8.

I do not consider that the “investment opportunity” of the Heritage Drive property in 2011 can be considered to form part of the plaintiffs’ reliance. In any event, as I note below when dealing with countervailing benefits, the plaintiffs were in fact given an investment opportunity in the form of the Burringbar Street Property.

I generally accept the plaintiffs’ evidence that they undertook certain caretaking duties in respect of the commercial premises in Mullumbimby and the Illawong Property over the years. I accept that those duties involved the plaintiffs and their children periodically moving between Illawong and Mullumbimby between 2002 and 2009. After 2009, it appears that it was predominantly Dimce who was travelling to Mullumbimby (albeit less frequently than previously) while Valentina stayed at Illawong with their children.

I accept that the expectation created by the combination of the fourth to sixth representations contributed to the plaintiffs’ (in particular Dimce’s) undertaking of caretaking duties at the properties in Mullumbimby, and they would not have undertaken those duties to the extent to which they did had they not held that expectation. One might reasonably suppose that more reliance was placed on the Employment Representation than the Occupation and Inheritance Representation, given that the caretaking duties were for the most part, as I understood it, what the plaintiffs were actually “employed” to do in the family business. However, given that the case was argued on the basis of a “single family arrangement” with a number of constituent aspects, it is difficult (if not impossible) to make that conclusion.

I do not accept that any caretaking duties undertaken in respect of the Illawong Property, which were mostly in the form of day-to-day domestic household duties, were done in reliance on any representation made by Rade and/or Danica. Their performance is explicable by the simple fact that the plaintiffs were living in the property rent-free on more than a temporary basis and thus had an interest in its upkeep and maintenance for their own comfort. As set out earlier, I am not satisfied that the plaintiffs outlaid any significant money to improve the Illawong Property, and indeed Rade forbade them undertaking any significant work.

I find that the plaintiffs did provide some care to Rade and Danica in the form of driving them to the shops or for doctor appointments or other medical treatment, undertaking domestic household duties (including preparing food or washing clothes) and occasionally accompanying Rade and/or Danica (mostly Rade) to and from Mullumbimby. However, to the extent that Mr McGrath submitted that the plaintiffs provided “24 hour care” to Rade (T 336.35-.50), in particular in the period after Danica’s death, I am not satisfied that the care was as extensive as they claim.

Between 2002 and 2010, Susanna, whose evidence I accept, visited Danica and Rade on a weekly basis and observed the relationship between her parents, Dimce and Valentina: CB 310[52]. She stated the following (CB 310[53]):

It is clear that Rade travelled to Macedonia without Dimce in 2010 or 2011 (CB 78[4(a)]) and possibly in 2012 (it being unclear whether that was the same trip: CB 342[5]). According to Susanna, up until at least late 2017, Rade was managing the business of the Nelson Building: CB 307[39]. Up to that time, my impression from the evidence available is that Rade’s health was manageable.

In about 2018, Rade’s health deteriorated following the death of Danica.

Dimce had previously asserted that for a period of approximately two years and nine months after Danica’s death, he provided particularly extensive personal care for Rade: CB 702. However, there is other evidence which gives more precision to what occurred and qualifies Dimce’s general assertion. Having regard to the following evidence, which I accept, I do not consider that Rade ceased to live independently after Danica’s death or that Dimce provided continuous care for a period of approximately two years and nine months, or at least an amount of care that could have given rise to any material strain on him.

In 2018, Susanna began to see Rade again on a regular basis, during which time Rade continued to travel to Mullumbimby and spend lengthy periods of time there living in the MPC flat: CB 315[81].

As I have noted earlier, records from an attendance at the Mullumbimby Medical Centre on 18 March 2019 state that Rade was living “occasionally” in Sydney at the time: CB 679.

As part of his ACAT assessment in May 2020, Rade was noted as relying upon his family for transport, shopping, meals, domestic duties, finance and banking, social support and home maintenance: CB 601. However, the ACAT assessor noted that there was no report of caregiver strain on the part of Dimce. While the assessment concluded with approval for “high level permanent residential care” for Rade (CB 602), the plaintiffs did not make anything of this on the hearing.

Recalling her attendance upon Rade at the Illawong Property in September or October 2020 in a letter to Mr Bell dated 9 July 2021, Ms Bozinovska stated that, from her observation of the house arrangement, Rade was living with Dimce and his family but he appeared to live “quite independent” in his own bedroom, especially in relation to his personal care: CB 672. That being said, she noted that the family would assist Rade with cooking, cleaning, shopping and so forth. Ms Bozinovska further noted that Rade had wanted to live independently, although his relocation had been hampered by COVID-19 at the time: CB 673.

On 13 September 2020, Dimce sent an email to Mr Bell referring to the fact that Rade had been in Mullumbimby (staying in Feros Village at Bangalow) for a three week period and had been having meetings with Mr Bell without Dimce, which had caused Dimce some concern as to what Rade was planning: CB 625.

From the above evidence, I accept that the plaintiffs (mainly Dimce) provided a degree of care for Rade in the form of transport and various domestic duties while he was living with them, the extent of which increased following Danica’s death. However, the evidence suggests that Rade still maintained a degree of independence in his personal care and business affairs.

Mr McGrath submitted that the Court can infer that Rade knew the plaintiffs were relying on the representations: POS [107]. He submitted further (POS [107]-[108]):

In closing, Mr McGrath submitted that Rade’s knowledge may be inferred “from the fact that he made the promises and then [the plaintiffs] lived the life he wanted”: T 288.16-.17.

Mr Bilinsky did not specifically address the knowledge issue in submissions, however I do not understand the knowledge issue to have been conceded.

As has been very recently confirmed by a majority of the High Court, it is sufficient for a proprietary estoppel by encouragement to arise that “either (i) a reasonable person in the position of the promisor would have expected, or (ii) the promisor actually expected, that the promise would be relied upon by the promisee in the general (detrimental) manner in which it was relied upon”: Kramer at [35] per Gageler CJ, Gordon, Edelman and Beech-Jones JJ.

In this case, I am satisfied that, at least in relation to the fourth to sixth representations, Rade and Danica actually expected (and indeed knew) that the representations would be, and were being, relied upon by the plaintiffs. That much is demonstrated by the evidence of the plaintiffs and various other deponents as to conversations had with Rade and Danica after 2002.

Little, if any, time was dedicated to this issue on the hearing. However, in his outline of submissions, Mr McGrath identified the acts of resiling by Rade as consisting of (POS [114]):

I accept that the contended acts of resiling by Rade are sufficient to constitute whatever is legally required by way of a promisor declining to make good the expectation to justify the plaintiffs in seeking relief based on the principles of proprietary estoppel.

In the way in which the claim was argued, the countervailing benefits issues pertained to the issue of detriment and, as such, I propose to deal with them together. Notwithstanding that, I accept that an analysis of countervailing benefits is also relevant to the question of unconscionability, and I will provide some additional reasons under that issue.

I note at the outset that Mr McGrath did not accept that the plaintiffs bore the onus of accounting for countervailing benefits in establishing detriment: e.g. T 300.44-.47, 301.34-.42. I will consider the question of onus further in due course.

The plaintiffs’ case for detriment was essentially characterised as involving what was described by Nettle JA in Donis at [34] as “life-changing decisions with irreversible consequences of a profoundly personal nature”: POS [109]-[111], [113]; T 9.9-.10, 289.25-.27. An analogy was also drawn to the detriment in Riches, as referred to above: T 9.6-.9, .25-.27, 289.28-.45.

If that characterisation were not accepted, Mr McGrath submitted that there was nonetheless other detriment. He put that detriment in the following terms (T 9.46-10.6):

In closing, Mr McGrath expanded on the individual aspects of each of the plaintiffs’ detriment as follows (T 289.47-290.36):

For his part, Mr Bilinsky rejected the argument that the choices made by the plaintiffs were life-changing decisions with irreversible consequences and submitted that no material detriment was occasioned: DOS [70].

Looking at the counterfactual scenario, Mr Bilinsky submitted that “the likely result of Dimce not getting married, having children with Valentina and being financially supported for two decades by his parents could only have been that he would have continued living in Australia, potentially as a single man, struggling to maintain himself as an artist, being financially dependent upon his parents and needing more if ever he wanted to raise a family. This is just what he did receive”: DOS [70]. If, alternatively, Dimce had decided to marry Valentina but stay in Macedonia, there was no evidence to suggest that he had any real work prospects there or that Valentina’s parents could have supported them to the extent to which Rade has: DCS [29]. In respect of Valentina, it was said that she would not have married Dimce or left Macedonia. In those circumstances, it was relevant that she gave no evidence that: she had any existing employment in Macedonia prior to meeting Dimce; she would have pursued a working career in Macedonia; she had any assets or savings to deploy for investment opportunities, or that she even wished to pursue such opportunities; and to the extent that she was unemployed, her parents would (or could) have supported her financially (especially to the extent that Dimce’s parents have): DCS [29].

Based upon those scenarios, and in light of the countervailing benefits received by the plaintiffs, Mr Bilinsky submitted that the plaintiffs have not suffered any real or substantial detriment or, alternatively, Rade’s conscience is assuaged: DOS [71]-[73]; DCS [30].

In his defence in respect of detrimental reliance, Rade pleaded that the plaintiffs have received a “significant financial benefit” arising from their residence at the Illawong Property since 2002, including but not limited to the fact that (CB 32[69]):

For convenience, I will refer to these matters broadly as falling within the category of “rent-free accommodation”.

I should note that, in his NCAT statement, Dimce asserted that since January 2021, when Rade left the Illawong Property, he and Valentina have taken over the payment of all outgoings from the property, including rates, electricity and water (the exception being insurance, which continued to be paid automatically by Rade through his bank account): CB 726[55].

On the hearing, it was contended on behalf of Rade that the following were also countervailing benefits received by the plaintiffs (DCS [35]):

In closing, Mr McGrath made a point of stating that the plaintiffs do not consent to any countervailing benefit that is not pleaded at [69] of Rade’s defence being put forward or relied upon, and that he did not intend to allow Rade’s case to traverse outside the pleadings as far as countervailing benefits went: T 338.40-.43. However, he accepted that this submission would face difficulties if indeed it were the plaintiffs who bore the onus of accounting for countervailing benefits.

According to Dimce’s affidavit evidence, funds for the purchase of the Burringbar Street Property were obtained (in part) from a self-managed superannuation fund for Rade, Danica and the plaintiffs which amounted to just over $340,353: CB 58[145].

Ultimately, however, Mr Bilinsky cross-examined Dimce on the basis that he had provided some capital contribution.

Specifically, Dimce accepted, by reference to exchanges of letters between his and Rade’s respective solicitors, that he and Valentina’s collective capital contribution to the Burringbar Street Property was $101,500 and Rade’s capital contribution was $1,063,804.61, with the balance being made up from a joint Westpac loan: T 95.23-.35 (the figures referred to were obtained from Exhibit P2, a letter from the plaintiffs’ solicitors, Ballantyne Law Group, dated 26 April 2022).

Dimce accepted that his father had offered him and Valentina a 50% interest in the property despite their financial contribution to the purchase falling far short of that: T 94.1-.29. However, he said that the arrangement was that “our 50% interest would be for the future of our children, and my father’s 50% interest would also be … a gift from him for the future of our children”: T 94.20-.22.

Dimce’s affidavit evidence on the arrangement was as follows (CB 58[146]-[150]):

According to Dimce, Rade expressed his desire to sell the Burringbar Street Property in early 2016: CB 58[152]. The plaintiffs resisted that course on the basis that their share of the property was the only investment which they had in their names at the time, and with some improvement the property had the potential for significant capital gain in the future: CB 58[153]. The plaintiffs understood that the Burringbar Street Property would be a long term investment for their children: CB 59[162], 128[89].

However, after having received letters from Rade’s solicitors in September and October 2021 setting out his plan for the property to be sold, the plaintiffs consented to the sale subject to agreement being reached as to the distribution of the proceeds of sale: CB 59[160]-[163], 677-678, 680, 688. Dimce said that he and Valentina consented to the sale on the understanding that Rade required the funds from the sale for his ongoing care needs: CB 59[162].

In re-examination, Dimce indicated that the Burringbar Street Property has been sold, with a sale price of either $2.35 or $2.45 million: T 104.5-.9. Mr Bilinsky informed the Court that $2,210,167.46 is being held in trust for the parties as the net proceeds of sale: T 237.28-.29. It appears that there is some dispute as to the distribution of those proceeds between Rade and the plaintiffs due to the nature of their partnership and which payments have been made by whom. No partnership agreement was in evidence: T 237.47.

Dimce deposed that, in or around 2010 or 2011, Rade travelled to Macedonia and purchased two units in Bitola, which had an asking price of between $50,000 and $55,000 (AUD): CB 78[4(a), (c)]. In either 2012 or 2013, Dimce said that Rade transferred one of the units into his name, so that Dimce’s children would have somewhere to stay when in Macedonia in the future: CB 78[4(b)].

Dimce said further that Valentina’s family had been paying all of the expenses associated with the units in Bitola: CB 78[4(d)]. While up until 2020 the plaintiffs would send funds to reimburse Valentina’s family, they have not done so since then and her family has attended to the maintenance and upkeep of the units.

In cross-examination, Dimce confirmed that Rade had gifted him the Macedonian apartment unencumbered, and that the apartment is not rented out: T 97.10-.17.

In his affidavit evidence, Dimce deposed that his parents had told him in 2017 that they wished to gift him and Valentina the MPC: CB 60[173]. He said that Danica had told him the following (CB 60[174]):

Valentina gave evidence to similar effect: CB 129[100]-[102]. She said further that it had been agreed that once the MPC had been transferred to the plaintiffs, their employment with Danica and Rade would stop immediately because they would then “have money to live”: CB 131[103]-[104].

As noted above, the transfer of the MPC was made on 6 February 2019 pursuant to a deed of gift dated 30 November 2018: CB 60[177], 565-571, 573. The deed relevantly stated that the transfer was wholly gratuitous and involved no monetary or other consideration (cl 2(b)) and that Rade retained a right of occupation of the MPC flat for life (cl 2(f)). The MPC was transferred from Rade to the plaintiffs as joint tenants.

While a market appraisal for the MPC performed by Cochrane Property Solutions Pty Ltd was marked for identification as MFI-1 (T 236.4), it was not ultimately admitted into evidence. After the case for Rade had closed, Mr McGrath alluded to having in his possession a 2017 valuation of the MPC and made it available for Mr Bilinsky to view, in case he sought to tender the document. In any event, however, Mr McGrath did not seek to tender it: T 263.30-.50. As such, there is no evidence before me of the MPC’s market value. However, it was contended on behalf of Rade that the MPC is of undeniably significant value (DCS [35(vi)]) and arguably is of much greater value than the Illawong Property: DCS [36].

As noted above, in his 2018 Will, Rade stated that “it is my intention that the [MPC] is to be gifted to my son during my lifetime however in the event that this gift has not taken effect at my death I give the [MPC] to my son DIMCE STOJANOVSKI”: cl 4(a)(ii)(A). Dimce was also specifically bequeathed the Illawong Property in that Will: cl 4(a)(ii)(B). However, no provision is made for Dimce (or Valentina) in Rade’s subsequent 2021 and 2022 Wills: Exhibit P1.

The evidence of the plaintiffs’ caretaking income was largely limited to Dimce’s tax returns from 2004 to 2020, which also contained Valentina’s taxable income as his spouse.

Dimce accepted in cross-examination that the income which he declared in his tax returns (bar 2019 and 2020) was limited to income from the “R&D Stoyanovski account” (which I infer is the family business account) for his work as a caretaker: T 88.30-.33. Whilst that statement is correct for most years, from 2014 onwards Dimce also received partnership distributions in addition to his caretaker salary, which I will detail below. No income was ever recorded from any sales as an artist: T 88.35-.36.

I set out the figures for the plaintiffs’ taxable incomes in the financial years 2004 to 2018 in the table below:

In 2014, the financial year in which the Burringbar Street Property was purchased by the plaintiffs and Rade, Dimce’s income included a distribution from the partnership “D & V STOJANOVSKI & R STOYANOVSKI” of $2,517 which, I infer, likely relates to the income from that property: CB 487-488. In the financial years 2015 to 2018, Dimce received similar partnership distributions of $2,309, $3,310, $11,738 and $15,982, respectively: CB 501, 517, 544 and 561.

In 2019, the financial year in which the MPC was gifted to the plaintiffs, Dimce’s taxable income was $48,587, which consisted of $40,519 from net rental property income from partnerships, a gross salary of $9,076 from Rade and deductions of $1,008: CB 579. The partnership income was further broken down as follows: $26,867 from the partnership “D Stojanovski & V Tusevska-Stojanovski” which, I infer, relates to the MPC (which the plaintiffs came to own as joint tenants in that financial year); and $13,652 from the partnership “D Stojanovski & V Stojanovski & R Stoyanovski” which, I infer, relates to the Burringbar Street Property (which the plaintiffs and Rade owned together): CB 583-585. Valentina’s taxable income for 2019 was $48,589: CB 580.

The reduction in Dimce’s salary in 2019 is consistent with the fact that the plaintiffs and Rade had agreed that their employment would cease after the MPC had been transferred to them.

In 2020, Dimce’s taxable income was $64,927: CB 614. Unfortunately, the version of the 2020 tax return in the Court Book has pages missing such that there is no breakdown of how that income is constituted, nor is Valentina’s taxable income included.

In cross-examination, Dimce indicated that, in addition to the wage which he and Valentina received and declared in their tax returns, they also received “family drawings” which were essentially monetary gifts from his parents: T 81.13-.33.

As noted above, Mr McGrath did not accept that the plaintiffs bore the onus of accounting for countervailing benefits in establishing detriment. To that end, Mr McGrath referred the Court to Michael Barnes QC, The Law of Estoppel (2020, Hart Publishing) at [7.249]. The extract relevantly includes the following:

Through a reasoning process which remains unclear to me, Mr McGrath submitted that the extract from Barnes, rather than confirming that the plaintiffs bear the burden of accounting for countervailing benefits in proving detriment, in fact confirmed the opposite: T 330.20-.22.

As observed earlier, the onus lies with the plaintiffs to prove the detriment alleged to have been suffered. More broadly, it is clear that, as a matter of law, the onus must be on the person alleging the estoppel to establish unconscionability, that is, to establish the three essential ingredients of representation (or some other form of encouragement), reliance and detriment: Steria Ltd v Hutchison [2006] EWCA Civ 1551 at [129] per Neuberger LJ (as his Lordship then was), cited approvingly in Sidhu at [59]. Thus, regardless of whether or not one considers countervailing benefits to be more relevant to question of the unconscionability of departure from the promise than to the question of detrimental reliance, the onus of accounting for countervailing benefits must be on the person raising the estoppel. I reject Mr McGrath’s submission otherwise.

Mr McGrath then submitted that even if the plaintiffs bore that onus, it had been discharged: T 332.15. For reasons which I set out below, I reject that submission.

Ultimately, Mr Bilinsky submitted that the plaintiffs had the benefit of:

As noted earlier, for a benefit to be considered as a countervailing benefit, it must have accrued to the plaintiffs under the arrangement encouraged by the representations or been received as a consequence of a change to their position in reliance on the representations: Soulos at [394]; Daniel at [218]. Mr Bilinsky accepted that proposition (T 333.28-.38) and Mr McGrath did not provide any authority otherwise.

With the possible exception of the Macedonian apartment, I find that the abovementioned benefits accrued to the plaintiffs under the “single family arrangement” encouraged by the fourth to sixth representations and were received as a consequence of their change of position in reliance upon those representations.

In respect of the Macedonian apartment, Mr McGrath submitted that there was no indication of any connection between the gift and the representations in respect of the Illawong Property: T 338.35-.37. However, Dimce’s evidence was that Rade transferred the apartment to him so that Dimce’s children would have somewhere to stay when in Macedonia in the future: CB 78[4(b)]. It is not evident that Dimce would have received the apartment other than by reason of his reliance upon the fourth to sixth representations and bearing grandchildren. In that sense, it is arguable that the Macedonian apartment was a benefit which accrued to Dimce under the family arrangement. Nonetheless, for the purposes of assessing countervailing benefits, I am prepared to put the Macedonian apartment out of the equation.

Mr McGrath appeared to accept the fact that the plaintiffs did not have to pay outgoings or household bills for more than 20 years: T 332.44-.45. However, he disputed that the plaintiffs’ rent-free accommodation (including the non-payment of outgoings) should be considered as a countervailing benefit: T 332.36-.46.

His basis for so disputing was unclear, but it seemed to relate to the fact that the plaintiffs had to provide some care to Rade and Danica whilst living at the Illawong Property.

The fact that the plaintiffs provided some care to Rade and Danica whilst living at the Illawong Property does not mean that the rent-free accommodation they received for their family was not a countervailing benefit to them. In such cases, the Court may exercise a wide judgmental discretion in assessing the receipt of such benefit against the burden of care: see e.g. Jennings v Rice [2002] EWCA Civ 159 at [51] per Robert Walker LJ. In this case, however, there are various other countervailing benefits which also have to be taken into account.

Mr McGrath was equivocal in relation to whether the caretaking income was a countervailing benefit. He initially stated that the plaintiffs “were paid an income for what’s called notional caretaking of the commercial properties”, but then added: “That’s not quite correct. The evidence is they were paid really to do what Rade wanted and Danica wanted”: T 332.46-.49. He contended that the income related to the work done by the plaintiffs both in care of Rade and Danica and at the “two locations” (i.e. the Illawong Property and the Mullumbimby properties): T 334.1-.17.

I cannot see how the caretaking income is not a form of countervailing benefit to the plaintiffs. It was a benefit that had accrued to them as a direct result of the “single family arrangement” encouraged by the fourth to sixth representations. The plaintiffs enjoyed rent-free accommodation for their family and other monetary gifts from Dimce’s parents for the entire period in which they received the caretaking income. In light of that, and considering the nature of the caretaking duties which the plaintiffs actually undertook, the amount of income which they received (as evidenced in Dimce’s tax returns) was substantial.

After some discussion, Mr McGrath’s ultimate submission appeared to be that the plaintiffs will likely end up with just over $300,000 from the sale of the Burringbar Street Property: T 298.7-.14. For his part, Mr Bilinsky contended that, for the purposes of considering countervailing benefits, it is sufficient to appreciate that, notwithstanding the plaintiffs contributed significantly less than Rade to the purchase price (on his calculation, approximately 7.75%), they have enjoyed 50% of the capital appreciation of the property: T 296.22-.26.

On any view of it, the plaintiffs appear to have received a capital benefit by sharing between them 50% of the capital appreciation of the property in circumstances in which they did not contribute anything near 50% of the purchase price.

In addition, Mr Robinson’s investigations revealed that, for some period of time prior to his engagement in 2021, Rade had not been receiving any of the rent from the Burringbar Street Property (of which he owned a 50% interest). Rather, all of that rental income was being paid to the plaintiffs, despite them only having a combined 50% interest in the property: CB 298[10], [13]-[14], 299[16(b)].

In closing, Mr Bilinsky submitted that the sequence of Rade’s 2018 Will and the subsequent deed of gift illustrates that Rade had determined to replace the gift of the Illawong Property with the MPC: DCS [36]. Much was also made of the fact that, on the plaintiffs’ evidence, it appears that Danica had initially only promised the income of the MPC, as distinct from the fee simple estate, and so the ultimate gift was of much greater value than what had initially been promised: DCS [37]; T 329.1-.19.

Meanwhile, Mr McGrath contended that the MPC was not transferred to the plaintiffs as a replacement for the Illawong Property: POS [116]. It was put that since, at the time that the gift of the MPC was discussed, the Illawong Property was promised again, the Illawong Property was additional to the MPC and not a substitute. Rather, the MPC was intended to replace the income that the plaintiffs received from their employment: POS [117]; T 298.39-.40.

There was debate between myself and Mr McGrath regarding whether the capital value of the MPC could be taken into account. Mr McGrath disputed that it was correct to proceed on the basis that the plaintiffs were getting a capital asset and income: T 350.40-352.42. Despite Mr McGrath’s fervent attempts to contend otherwise, I cannot see how the capital value of the MPC could be ignored as a countervailing benefit to the plaintiffs.

For whatever reason, the plaintiffs did not adduce evidence in respect of the value of the MPC. Notwithstanding, it goes without saying that the various commercial and residential premises which constitute the MPC must be of significant value.

I reject the plaintiffs’ contention that the gift of the MPC cannot be considered a countervailing benefit because it was not transferred to them as a replacement for the Illawong Property. The plaintiffs contend that they had a “single family arrangement” with Rade and Danica which essentially encompassed their domestic and business relations. In my opinion, it would be completely artificial to say that the gift of the MPC was not made as a consequence of the plaintiffs’ change of position.

Even on the plaintiffs’ view of the MPC gift as a replacement for the income that the plaintiffs were receiving from their employment, the rent from the MPC after November 2018 is a form of countervailing benefit.

The evidence of the plaintiffs’ receipt of rental income from the MPC after it was gifted to them appears to be limited to Dimce’s 2019 tax return. (While part of Dimce’s 2020 tax return was in evidence, there was no breakdown of his taxable income to particular sources.) In the 2019 financial year, Dimce received $26,867 from the partnership with Valentina. It is reasonable to infer that Valentina received a similar payment for that year. Thus, from the limited evidence available, it is apparent that the rent which the plaintiffs have been receiving from the MPC since the 2019 financial year is not insignificant.

Mr Robinson’s assessment of the financial arrangements between 2018 and 2021 were that, from the rental income which Rade was receiving from the Nelson Building (owned solely by him), Dimce had paid $147,000 towards the expenses of the Burringbar Street Property and the MPC, notwithstanding the fact that the plaintiffs were only 50% owners of the former and the sole owners of the latter: CB 298[10]-[15], 299[16(a)], [17(a)].

Mr Robinson asserted, and it appears to be the case, that Rade has had to pay income tax on that income he received from the Nelson Building, notwithstanding that he did not benefit from it: CB 667.

I accept that the plaintiffs had each made certain life-changing decisions over 20 years ago in reliance upon the arrangement encouraged by Rade and Danica. Those decisions were particularly significant for Valentina, as they involved moving from her home in another country to start a life and family in Australia. However, detriment requires an understanding of the disadvantage that the plaintiffs would suffer by reason of their change of position in reliance on the encouraged expectation, if it were to be departed from.

In respect of Dimce, he has forgone the opportunity to pursue his artistic endeavours to a greater degree, but that sacrifice has not been complete or enduring. It is clear even on his own evidence that he was at times able to resume his career as an artist and had sufficient time to do so to perform credibly and achieve prize results (particularly in the period between 2009 and 2015: see CB 51[89]-52[92]). In any case, what he has sacrificed in terms of his art he has gained multiple times over in having the opportunity to get married and raise a family, which is something he independently wanted and would not otherwise have had without his parents’ support.

In respect of Valentina, there was no evidence as to any opportunities in Macedonia she has forgone by moving to Australia. Once in Australia, I accept that Valentina deferred gaining tertiary qualifications in order to have children earlier than she otherwise would have wished, but she has not been denied educational opportunities completely. Essentially what has occurred is that she has had the benefit of having children, been given “employment” by Dimce’s parents and deferred her education. In 2021 she gained professional accreditation and at least from April 2022 has been working most days of the week at a number of schools as a teacher’s assistant.

I accept that there is detriment established in the plaintiffs’, and in particular Dimce’s, provision of assistance and care to Rade and Danica over the years, and their caretaking of the family’s properties in Illawong and Mullumbimby. However, as I have explained earlier, I do not consider that the extent of that care and assistance was as extensive as the plaintiffs claim.

On balance, the countervailing benefits received by the plaintiffs are so significant as to lead to the conclusion that no real or substantial detriment has been suffered by them. They have lived and raised their family in the Illawong Property for over 20 years rent-free. While the plaintiffs have maintained the property and undertaken occasional minor works, this is not a case where the party raising the estoppel has undertaken significant expenditure in improving the property in the expectation that it would one day be theirs. Under the family arrangement, the plaintiffs have been remunerated by Rade for their caretaking duties, and have received significant proprietary interests in the Burringbar Street Property and the MPC, the latter of which they continue to derive rental income from. The plaintiffs’ case for detriment is not made out.

Were it more appropriate to consider countervailing benefits in terms of the unconscionability of departure from the promise or expectation, I find that the countervailing benefits that have accrued to the plaintiffs in effect subsumed or sufficiently made good the representations of Rade and Danica (specifically, the fourth to sixth representations) so as to make it not unconscionable for Rade to depart from the expectation that the plaintiffs could occupy, and Dimce would inherit, the Illawong Property.

Given my findings in respect of detriment, countervailing benefits and unconscionability, the plaintiffs’ proprietary estoppel claim must fail. In those circumstances, I propose to dismiss the plaintiffs’ claim.

Prima facie, costs should follow the event.

My findings against the plaintiffs on the estoppel case are sufficient to determine the outcome of the cross-claim. Rade’s cross-claim ought to succeed.

The plaintiffs’ defence to the cross-claim recognised that, if their statement of claim were dismissed, they do not technically have any defence. Nonetheless, the plaintiffs contended that the four week period allowed for in the cross-claim for the plaintiffs and their family to vacate the Illawong Property was harsh and unreasonable. Instead, they sought a period of six months or more to vacate the property.

As matters currently stand, I do not see any basis for permitting such an extended period of time for the plaintiffs to vacate the Illawong Property, particularly in circumstances where they have been on notice since November 2021 that Rade was seeking to have them vacate the property.

However, in light of Rade’s death and cognisant of potential exigencies of the administration of his estate unrelated to these proceedings, I consider that the most appropriate course is for the parties to bring in short minutes of order to give effect to these reasons for judgment in respect of what, if any, relief is sought on the cross-claim.

The orders of the Court are as follows: