Blacket v Barnett

HIS HONOUR: These proceedings concern a claim by the Plaintiff, Peter Wilfred Blacket, that the Defendants, Graham Keith Barnett (“Mr Barnett”), Christopher Glen Gillis (“Mr Gillis”) and John Frederick Hiscox (“Mr Hiscox”), as the legal personal representatives of Yvonne Elaine Thompson (“the deceased”), hold the whole of her estate on trust for him. In making the claim, the Plaintiff relies upon the branch of equitable proprietary estoppel known as estoppel by encouragement. In the alternative, the Plaintiff claims that the Defendants hold certain land, situated at Undine Street, Russell Lea, in New South Wales (“the Undine Street property”), the sole proprietor of which land was the deceased, on trust for him, upon the same basis, and an order that they transmit that property to him. In the further alternative, the Plaintiff makes a claim for equitable compensation. In summary, the Plaintiff seeks protection from the detriment which he asserts would flow from his change of position if the promise or representation that led to it were deserted.

The Plaintiff does not assert a binding contract with the deceased to leave him her property by Will. He does not seek to establish that his conduct and the conduct of the deceased, viewed in the light of surrounding circumstances, demonstrates a tacit understanding, or agreement, and that the conduct is capable of establishing all of the essential elements of an express contract: Priestley v Priestley [2017] NSWCA 155 at [105] (Emmett AJA).

Most of the allegations of fact asserted by the Plaintiff in the Statement of Claim were not admitted by the Defendants. They explicitly denied, however, that the deceased had breached any obligation to the Plaintiff. They also denied that it would be unconscionable for them not to comply with what were said to be the “representations of the deceased”.

The Defendants, in their Defence, also asserted that in certain Probate proceedings to which reference will be made, “the plaintiff failed to disclose the claim made in these proceedings in his defence, his affidavit and [in the] correspondence sent on his behalf” and that it was not until “on 26 August 2016, about 16 months after the deceased’s death, the plaintiff’s solicitor first informed the defendants of the plaintiff’s claim made in these proceedings…”. They rely “on laches and acquiescence and deny the plaintiff is entitled to the relief claimed”.

In further answer to the whole of the Plaintiff’s claim, the Defendants asserted that the Plaintiff, himself, was “estopped from seeking the relief sought in these proceedings under the principles of Port of Melbourne Authority v Anshun Pty Ltd…”.

The proceedings require a consideration of events, some of which are said to have occurred in “the 1990’s”. There are also conversations said to have taken place “beginning in or about 2005, and continuing, at various times, until 2014”, upon which reliance is placed.

The matter is further complicated by the fact that the deceased, one of the principal participants in both the events, and the conversations, died prior to the commencement of any proceedings by the Plaintiff.

In order to enable the chronology of events to be more readily understood, I shall first identify the deceased, and then, the principal actors, some of whom gave evidence in the case. I shall provide some uncontroversial background to his, or her, relationship with, or involvement in the life of, the deceased.

The deceased was born in February 1925. Her husband, Austin William Thompson, died in about 1983. They had no children. The deceased died on 29 April 2015 aged 90 years.

By May 2014, neuropsychological assessment revealed that the deceased suffered “…broadly, mild deficits in attention span and verbal intellect; mild to moderate deficits in memory; and moderate to severe deficits in aspects of visuo-construction [involving the co-ordination of fine motor skills with spatial abilities] and executive functioning...while general intellect is not grossly impaired, objective testing reveals substantial deficits in areas central to independence and ability to make complex decisions”: Ex. A2/167.

The deceased had one sister, Joan Crane, who predeceased her, having died in 2013. Mrs Crane had two daughters, being Julie and Jennifer, each of whom is a beneficiary under the Will of the deceased’s mother, Ruby Spruit. Neither has played any part in the proceedings, but they are mentioned in the Will of the deceased, to which reference will be made.

The Plaintiff, Mr Blacket, is a real estate agent of some 50 years’ experience. He owns, and operates, a real estate agency in Double Bay, Sydney, known as The Blacket Agency. In support of his claim, four affidavits made by him were read, the first being sworn 16 February 2016, the second being sworn 4 November 2016, the third being sworn 30 November 2016 and the last being sworn on 10 March 2017. He was cross-examined on many of the matters asserted by him in these affidavits.

The Plaintiff first met the deceased in 1965, when he advised Mrs Spruit on the sale of a property. However, it was not until the 1990’s that he came to have increasing contact with the deceased. It was then that a friendship started to develop between them. He stated that “as [the friendship] developed over the years it became (at least from my perspective) akin to a mother – son relationship.”

In his oral evidence, the Plaintiff stated that he and the deceased were “great mates”: T46.07 – T46.10. He maintained that the relationship between them “intensified over the years”.

In late 2010, the deceased engaged the Plaintiff to sell the Undine Street property, although, ultimately, she did not proceed with any sale. At about this time, the deceased gave the Plaintiff the Certificate of Title to the Undine Street property. (An issue arises as to the circumstances surrounding, and the purpose for, the deceased doing so.)

The deceased appointed the Plaintiff as her Attorney and enduring Guardian in March 2012, and he appears to have accepted his appointment on 17 April 2012.

The Plaintiff’s daughter, Jacqueline Anne Blacket, now also works at, and is a principal of, The Blacket Agency. An affidavit made on 6 December 2016, of Ms Blacket, was read and she was cross-examined.

She met the deceased in about 2003, whilst working part time at The Blacket Agency. She did not have any significant relationship with the deceased independent of the Plaintiff. She visited the deceased’s home, after 2003, “around 10 to 12 times”, on most of which occasions she had gone with the Plaintiff. On one occasion, in 2015, she visited the deceased on her birthday (when the Plaintiff was absent from Sydney).

Another witness, called by the Plaintiff, was his wife, Pamela Dorothy Blacket. Her affidavit was read and she, also, was cross-examined. She accepted that she did not have any relationship with the deceased, independent of the Plaintiff. She visited the deceased, with the Plaintiff, at her home “around three or four times” and also visited when she was in hospital “a couple of times”.

There is no suggestion, despite what was said to be the closeness of the relationship between the deceased and the Plaintiff, that the deceased was ever invited to the Plaintiff’s and Mrs Blacket’s home, or that the deceased, otherwise, socialised with members of the Blacket family.

Dr Joanne Grimsdale is a general medical practitioner, now working with the NSW Department of Health. She was in private practice and was the deceased’s general practitioner between September 2009 and the deceased’s death in April 2015. She only ever had a professional relationship with the deceased. The Patient Notes of the medical practice, extending as far back as 1965, were tendered (part of Ex. A and Ex. 5). (It is impossible to decipher the handwritten notes, but this probably does not matter since counsel made reference only to typewritten notes, which were made in the last few years of the deceased’s life.) Her affidavit, made on 8 March 2017, was read in the Plaintiff’s case and she was cross-examined.

Mr G J Basha, is a solicitor at Bartier Perry. The firm was retained on 20 May 2015 “in relation to possible claims by [the Plaintiff] in relation to the estate” of the deceased. The firm has continued to represent the Plaintiff in these proceedings.

On the second day of the hearing, without objection, Mr Basha’s affidavit, sworn 14 June 2017, was filed in Court. Mr Basha was not cross-examined. His brief evidence went to what was said to be the reason why the Plaintiff had not disclosed the claims made in these proceedings to the Defendants at any time prior to 26 August 2016, that is to say, 16 months after the death of the deceased.

Mr David Sharpe was a solicitor at Dibbs Barker. The deceased had known him for some time. Other evidence reveals that he was taken to the deceased’s home, at her request, by Mr Hiscox, in July 2009, to draft a Will for the deceased and that, subsequently, he was contacted, on behalf of the deceased, in about 2014. He did not give evidence in the proceedings.

Mr Paul Mattick is a solicitor at Paul Mattick & Associates, a firm of solicitors at Five Dock. He did not give evidence, but Ms Vivien Botsikas, a solicitor employed by Bartier Perry, swore an affidavit on 1 June 2017, read in the proceedings, to which was annexed a copy of an email sent by Mr Mattick to her stating:

The “notes” to which Mr Mattick referred is a Diary Note headed “Thompson File Note” (Ex. A2/208) to which reference will be made later in these reasons. In addition, there are some copy emails, passing between Mr Mattick and the Plaintiff, to which reference will also be made. Ms Botsikas was not cross-examined.

Mr Barnett, the first Defendant, is a retired solicitor. He swore an affidavit on 14 December 2016 that was read and he was cross-examined. He had known the deceased from about 1983 through her father, who had worked at Mr Barnett's firm. Mr Barnett became friends with the deceased and he visited her regularly, with his wife and his children, although, after 2008, not as often as he had previously done.

Mr Barnett assisted the deceased with her mail, with her shopping, with carrying out repairs and maintenance of the property at Janet Street, Drummoyne (“the Janet Street property”) at which the deceased lived, and with repairs and maintenance to the Undine Street property, that the deceased owned. He assisted her in other ways, as well, when she was in hospital, in 2007.

In August 1993, the deceased appointed Mr Barnett as her attorney, but she revoked his Power of Attorney in January 2008. Most of the assistance Mr Barnett provided to the deceased was in that 15 year period, although he did assist her after that time, although less regularly.

Mr Barnett has two sons, Lyndon and Tristan. During their teenage years, each, sometimes, would accompany Mr Barnett when he visited the deceased at her home. It is not suggested that either of the sons had a significant relationship with the deceased independent of his father, and there is no evidence of any support provided by either to the deceased. Neither has played any part in these proceedings. They are, however, all beneficiaries named in the Will of the deceased.

Mr Gillis, the second Defendant, is also a solicitor. He swore an affidavit on 13 December 2016 that was read and he was cross-examined. He had met the deceased in about March 2001. The deceased told him that she had worked for his father for about 20 years; that he was a wonderful employer; and that he had been very kind to her.

Between 2001 and about 2003, Mr Gillis assisted the deceased with a legal dispute against her sister and her nieces involving the estate of her mother. Following telephone conversations with the deceased in which she complained about the dilapidation of the Janet Street property, and after discussions with the trustee of the deceased’s mother’s Will, he arranged for the roof of that property to be replaced at no cost to the deceased.

In May 2003, however, the deceased took all of her files back from Mr Gillis’ firm, and retained the firm of McKellar, Crain & Barnett, as her solicitors.

Mr Gillis has two sons, being Adam Christopher Gillis and Guy Laurence Gillis. There is no evidence that either had any relationship at all with the deceased, or that she had met either of them. Neither has played any part in these proceedings. They are, also, beneficiaries named in the Will of the deceased.

Mr Hiscox, the third Defendant, is a retired accountant. He swore an affidavit on 10 December 2016 that was read and he was cross-examined. He had known the deceased from the 1960’s when she had been employed as a secretary by a company that he would attend to do accountancy work. He met her again in about 1980, through his association with the Daimler Car Club, of which Club they were both members. They became friends. They attended monthly meetings together and Mr Hiscox sometimes picked her up from her home and took her to the meetings. The deceased also often came to see Mr Hiscox at his offices for a social chat.

Mr Hiscox assisted the deceased with her shopping, with the repairs and the servicing of her car, with her financial affairs, and with medical appointments. In February 2008, the deceased appointed Mr Hiscox as her attorney. Unless he was away, Mr Hiscox visited the deceased every week, usually on a Wednesday.

In about August 2013, the deceased accused Mr Hiscox of not returning some cricket memorabilia that she had asked him to hold for safekeeping (in the 1980’s). He had, in fact, returned those items to her, at her request, 10 years after he had been given them. Mr Hiscox did not talk to the deceased again until March 2014, when she telephoned him to discuss matters relating to the restoration of her Daimler.

In April 2014, the deceased told Mr Hiscox that she would make a new Will and give most of her estate to him. Thereafter, he drafted a number of Wills for the deceased to which reference will be made, but she did not execute any of them. Mr Hiscox is also a beneficiary named in the Will of the deceased.

Mr Russell Norwood is a solicitor who was consulted by the deceased and who drafted what has been established to be the last Will of the deceased, being a duly executed Will made on 18 June 2003 (“the 2003 Will”). Mr Norwood took instructions directly from the deceased. Mr Norwood, and a legal secretary at his office, are the two attesting witnesses to the deceased’s signature on the 2003 Will. He did not give any evidence in the proceedings, as issues concerning the validity of the 2003 Will were the subject of Probate proceedings, to which reference will be made.

Mr Peter Richard Gaydon was the trustee of the trusts of the Will of Ruby Spruit, and also the trustee of a trust, created inter vivos, and described as the "JRS and JCS Crane Trust". Orders made by this Court, in 1995, removed the deceased’s sister, Mrs Crane, and had appointed Mr Gaydon, as the trustee in her place. Mr Gaydon subsequently became involved in litigation, in which the deceased was a party, referred to by the medium neutral citation, Gaydon [2001] NSWSC 473. He did not give any evidence in the proceedings.

It will be observed, from that short outline, that the parties, as well as the wife and daughter of the Plaintiff, are not independent witnesses. Each has a direct, or indirect, apparent, financial interest in the outcome of the proceedings.

For a number of reasons, including the assertion of the Defendants that the Plaintiff is precluded from all equitable relief because of laches, and also because of an Anshun estoppel, it is necessary to trace the history of earlier Probate litigation between the parties.

The 2003 Will appointed the three Defendants as the executors and trustees. Following the death of the deceased, Mr Barnett met the Plaintiff and Ms Blacket at the Janet Street property, on either 2, or 9, May 2015. At this meeting, the Plaintiff told him that he thought the deceased had forgotten that she had made a Will and that she had said to him that she wished to make a new Will. When asked by Mr Barnett for the keys to the Janet Street property, the Plaintiff refused, saying:

During this conversation, the Plaintiff did not inform Mr Barnett of any of the conversations with the deceased, about which he has given evidence in these proceedings. Nor did he identify any assurances, or promises, said to have been made to him by the deceased in regard to the distribution of her estate.

By letter, dated 21 May 2015, sent to Mr Barnett, Mr Basha referred to the 2003 Will, to the fact that the Plaintiff had been appointed as the deceased’s sole Attorney and enduring Guardian and requested “pursuant to s 54(2) of the Succession Act 2006 (NSW), that you provide us with copies of all Wills and other documents purporting to be Wills, amendments to Wills, and notes held by Mr John Hiscox relating to the testamentary intentions of the deceased” (Ex A2/254).

On 29 July 2015, the Defendants filed a Summons for Probate in common form of the 2003 Will. On 30 July 2015, the Plaintiff filed a general Probate caveat in the Supreme Court Registry, which caveat stated:

The Plaintiff did not assert, as the basis of the caveat, any other interest in the property of the deceased.

In a letter dated 4 August 2015, the Defendants’ solicitors, Carneys Lawyers, referred to earlier correspondence in which they had “requested copies of any documents relevant to the grant of probate in this matter…including any documents upon which your client relies to prove that he has an interest in the Estate” (Ex. A1/18). No documents, apparently, had been produced, in answer to the earlier request.

In an email sent on 10 August 2015, the Plaintiff’s solicitors forwarded a scanned copy of a draft Will of the deceased (to which reference will later be made) and a copy of the deceased’s 2003 Will “with two pen lines drawn across the first page” (Ex. A1/19). In the email, it was asserted that:

By letter dated 14 August 2015, the Defendants’ solicitors sought “particulars” of each of the documents that had been provided by the Plaintiff’s solicitors.

By letter dated 28 August 2015, the Defendants’ solicitors requested “…any further evidence upon which your client relies to show that the Court ought to grant Probate or Letters of Administration to him instead of to our clients”. The letter went on:

In a letter dated 4 September 2015, the Plaintiff’s solicitors informed the Defendants’ solicitors that the draft Will had been prepared by Mr David Sharpe, of Dibbs Barker, whilst the copy 2003 Will with the two pen lines drawn across the first page “was in the deceased’s home at the date of her death”. In the letter, the person who had drawn the two lines on the copy 2003 Will was not identified, and when the two lines had been drawn on the copy of the 2003 Will, was not stated. The letter did state, however, that “the notes were taken by Mr John Hiscox when he saw Mrs Thompson at Concord Hospital”.

In a letter dated 8 September 2015, the Defendants’ solicitors requested that the caveat lodged by the Plaintiff in the Registry of the Court be withdrawn. The letter also highlighted what was said to be an inconsistency between a telephone conversation between the Plaintiff and Mr Hiscox, in which the Plaintiff “alleged that Mr Hiscox had received handwritten notes from Mrs Thompson” and the letter dated 4 September 2015, from the Plaintiff’s solicitors, in which it was asserted that “the alleged notes were ‘taken by Mr Hiscox’…”.

(The letter might also have referred to Mr Basha’s email, sent on 10 August 2015, in which a similar assertion was made, but it did not.)

On 14 September 2015, Mr S Balafoutis (who appeared with Ms Hamilton-Jewell at the hearing of the present proceedings), was retained by the solicitors for the Defendants in the Probate proceedings. He appeared, for the Defendants, who were the plaintiffs in those proceedings.

On 18 November 2015, the Defendants filed a Statement of Claim seeking probate in solemn form of the 2003 Will. The Statement of Claim named the Plaintiff (as the defendant).

Subsequently, directions were made, in those proceedings, for the Plaintiff to file a Defence and any Cross-Claim. Subsequently, affidavits were also filed by the Defendants and by the Plaintiff (in the Probate proceedings).

By 3 December 2015, the Plaintiff’s solicitors had retained Mr L J Ellison SC in the Probate proceedings. He has appeared, with Mr D Liebhold, for the Plaintiff in these proceedings.

On 17 December 2015, the Plaintiff filed his Defence, but no Cross-Claim. The Defence did no more than put the Defendants to proof of almost all of the matters asserted in the Statement of Claim. (The Defendants submit, in these proceedings, that having been given the opportunity to file a Cross-Claim, that the failure of the Plaintiff to do so was “unreasonable”.)

On 18 December 2015, the Plaintiff served upon Mr Hiscox, a notice addressed to all of the Defendants, to produce “all documents recording instructions or the expression of [the deceased’s] testamentary intentions, including the disposition of her assets upon her death or the appointment of her legal personal representative, including any document which refers to the existence of any such document, created or brought into existence subsequent to 18 June 2003”.

On 21 December 2015, the Plaintiff’s solicitors issued three subpoenas, one addressed to each of three different firms of solicitors (Grahame W Howe & Co; Dibbs Barker; and Mattick & Associates), requiring the production of the same documents identified in the notice to produce.

The Plaintiff served an affidavit, sworn 16 February 2016 in the Probate proceedings. With the leave of the Court, that affidavit was read in the Plaintiff’s case in these proceedings. In that affidavit, the Plaintiff made no reference to any conversations with the deceased relating to the disposition of her estate or any part of it. Importantly, in that affidavit, he did not assert an interest in the deceased’s estate based upon any conversation that he has alleged in these proceedings.

On 3 May 2016, the Plaintiff withdrew his objection to the Defendants’ claim for Probate in solemn form of the 2003 Will. In a letter of the same date, from his solicitors, it was stated:

On 6 June 2016, this Court ordered that Probate be granted in solemn form of the 2003 Will signed by the deceased to the Defendants. On 1 August 2016, the Court issued the Probate document.

Between 7 June 2016 and 26 August 2016, the Defendants arranged for a building and pest report for the Undine Street property ($399); entered into a Sales Inspection Report and Auction Agency Agreement to sell the Undine Street property; arranged for work to be done to the Undine Street property, including the removal and disposal of carpets, sanding and polishing floors, and gluing tiles to bathroom walls ($4,114); removing all rubbish after slashing and mowing grass, trees/weeds; removing rubbish from inside the house and taking it to the tip ($1,595), arranged for the removal of a pianola ($319), tree lopping ($360), and shaving the bathroom windows and installing a key lock on a kitchen window ($200). They also obtained insurance ($2,563) on the Undine Street property.

The Plaintiff’s solicitors produced a copy of a Memorandum of Fees dated 24 June 2016 sent by Mr Ellison SC, following the conclusion of the Probate proceedings. This document, relevantly, refers to “advice concerning status of possible informal testamentary documents or lost Wills”, and “consultations with regard to claim for privilege by various persons with regard to testamentary documents” but does not refer to any advice sought, or given, relating to the matters the subject of the Plaintiff’s claims in the present proceedings.

The Plaintiff’s solicitors also produced a copy of their “Invoice dated 27 July 2016” for work done between 29 March 2016 and 20 July 2016. There is no reference, in this document, either, to any advice relating to the matters the subject of the Plaintiff’s claims in the present proceedings.

On 8 September 2016, the Plaintiff’s solicitors sent “our estimate of the costs recoverable by our client in accordance with order 3” in the Probate proceedings. The amount claimed was $60,601.

(At the hearing of these proceedings, the Court was informed that the Plaintiff’s costs (as Defendant) of the Probate proceedings were $44,000, whilst the Defendants’ costs (as Plaintiffs) were $45,000, and that these costs had been paid out of the deceased’s estate: T98.15 – T98.21.)

On the second day of the hearing of these proceedings, the Plaintiff filed in Court, without objection, the affidavit of Mr Basha, which affidavit had annexed to it a copy of an email dated 20 May 2015, sent by him to the Plaintiff, in which Mr Basha referred to “…an estoppel argument based on testamentary promises made to you by Yvonne or simply payment to you for work done and expenses incurred by you in managing Yvonne’s affairs prior to her death”.

In the affidavit, Mr Basha also deposed:

Mr Basha did not reveal, however, why notice of such “an action” was not given, in writing, or otherwise, at any time prior to 26 August 2016, to the Defendants’ legal representatives, despite the stream of correspondence that had passed between the legal representatives following the dispute about the deceased’s testamentary intentions, in and before, the Probate proceedings. (It will be necessary to return to this aspect of the matter later in these reasons.)

On 29 August 2016, the Plaintiff caused a caveat to be recorded on the title to the Undine Street property (Ex. 6). The particulars of the estate or interest in the Undine Street property asserted were:

By orders made on 8 November 2016, the Plaintiff’s caveat lodged on the title to the Undine Street property was extended until further order of the Court and upon the usual undertaking as to damages given by the Plaintiff. The matter then proceeded by the pleadings to which reference has been made.

The Plaintiff agreed, at the commencement of the hearing, that in the event that he is unsuccessful in his claims, the caveat would be removed within 7 days of the making of orders: T3.15.

During the course of the Probate proceedings, the Defendants had conducted various searches in an attempt to locate the Certificate of Title for the Undine Street property without success. The Defendants then prepared an application for a replacement Certificate of Title.

At no time during the Probate proceedings, did the Plaintiff disclose that the deceased had given the Certificate of Title for the Undine Street property to him or that he had retained it. He did so, for the first time, on 26 August 2016. When asked about this, the Plaintiff asserted that he had not been asked: T85.27 – T85.31.

In summary, the 2003 Will provided in Clauses 3 to 7:

The deceased, in Clause 8 of the 2003 Will, referred to her decision to make no provision for her sister, Joan, or to Joan’s two daughters, Julie and Jennifer, for reasons expressed therein.

The Plaintiff was not referred to, or identified, in any way, in the 2003 Will.

In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $2,249,158. The estate was said to consist of the Undine Street property ($1,800,000), cash in a bank account ($172,759), shares in listed companies ($271,399), a car ($2,000) and personal belongings, including china, glass, silverware and jewellery ($3,000). (I have omitted, and shall continue to omit, a reference to cents. This will explain any apparent mathematical miscalculations.)

At the date of hearing, the parties agreed that the current value of the Undine Street property was $2.3 million: T2.10 – T2.20; that there was $94,423, held in bank; and that the shares in listed companies had a value of $247,000: T97.26 – T97.28.

The Undine Street property is now registered in the name of the three Defendants as executors.

The deceased’s mother, Ruby Spruit, was the registered proprietor of the Janet Street property, and the under the terms of her Will, made on 18 April 1974, it was held upon trust for the deceased for life. The deceased was entitled to reside therein, or receive the income therefrom, during her lifetime. Orders had been made by this Court, in 1998, giving power to the Trustee of the trusts in Mrs Spruit’s Will to apply proceeds of the sale of another property, owned by Mrs Spruit, in paying for repairs to the Janet Street property.

There was much evidence about the state of repair of the Janet Street property and whether the Plaintiff had played any part in dealing with the trustee, Mr Gaydon, concerning its state of repair and the maintenance needed. This issue arose because the Plaintiff had stated in his affidavit in reply that he “…too, corresponded with Peter Gaydon in relation to Mrs Thompson’s home, particularly in relation to the carport…..Mr Gaydon also contacted me after he heard of Mrs Thompson’s death”.

There was also evidence about the requests made to effect repairs to the Janet Street property. In a letter dated 15 March 2002, sent by Mr Gillis’ firm, C G Gillis & Co, the residence was described as “…in desperate need of repair and refurbishment”. In another letter dated 28 May 2003, Mr Gillis provided, amongst other things, a “[N]ew Quote for repairs to the property at Drummoyne” and requested advice when Mr Gaydon was “available to meet with the writer and Mrs Thompson to discuss the repairs to the property which are now urgent…”.

Other relevant correspondence between Mr Gillis and Mr Gaydon is dated 31 October 2003, 6 February 2004, 2 December 2004, 23 July 2007, 19 March 2008, 2 May 2008, 5 May 2008, 21 December 2008, 8 April 2010, 10 May 2010, 20 May 2010, 17 June 2010, 29 October 2010, 12 November 2010, 23 November 2010, 20 December 2010, 5 April 2011, 20 April 2011, 29 April 2011, 15 August 2011, 7 September 2011, 10 September 2011, 20 December 2011, 10 February 2012, 23 February 2012, 13 March 2012, 11 May 2012, 2 October 2012, 21 October 2012, passing between Mr Gaydon and Mr Barnett or his firm (MacKellar Crain & Barnett).

In relation to the Plaintiff, there is a reference in a diary entry of the Plaintiff of 29 April 2011 that states “Carport Thompson”.

On 2 May 2012, Mr Gaydon wrote to the Plaintiff regarding the Janet Street property (concerning maintenance required to the carport). There is no response to that letter in the evidence. This prompted Mr Gaydon to write a second letter, dated 28 May 2012, to the Plaintiff. On 13 June 2012, the Plaintiff responded, by email, to the letter dated 28 May 2012, from Mr Gaydon, stating that “I raised the issue of the carport with Mrs Thompson again today”. (This is confirmed in a reference to “Mrs Thompson” in a diary entry of the Plaintiff dated 13 June 2012.)

It is clear from all of the evidence that the Plaintiff did not have very much to do with the trustee, Mr Gaydon, concerning the state of repair of the Janet Street property.

The circumstances in which the deceased came to own the Undine Street property are not disclosed in the evidence. There was also some evidence about the state of repair of this property.

On 19 November 2007, the City of Canada Bay Council issued a “Notice of Intention to Give an Order” in relation to the Undine Street property. The basis of that order is not disclosed.

By letter dated 11 December 2008, addressed to Mr Barnett, the City of Canada Bay Council noted that despite “….your written representation dated 8 December 2008”, the Council has issued an Order “for overgrowth” in relation to the Undine Street property. It required the “removal of all overgrown vegetation or vegetative matter…” stating that “the land or premises are not in a safe or healthy condition”.

On 10 November 2009, the City of Canada Bay Council issued another “Notice of Intention to Give an Order” in relation to the Undine Street property on the basis that it “…is now in possession of evidence that the … property is overgrown”. It required the “removal of all overgrown vegetation or vegetative matter…” stating that “the land or premises are not in a safe or healthy condition”.

The Plaintiff gave evidence that he had taken steps to arrange for a gardener to attend the Undine Street property in February 2009 in order to remove a tree and clear the vegetation surrounding the property.

It is next necessary to set out the evidence given by the Plaintiff, Mrs Blacket, Ms Blacket, and Dr Grimsdale, upon much of which each was cross-examined.

In his first affidavit, as previously stated, the Plaintiff gave no evidence about any conversations said to have been had with the deceased, upon which reliance was placed. However, this affidavit had been prepared for the Probate proceedings, to which reference has been made.

The Plaintiff did refer to being a friend of the deceased and also her Attorney and Guardian. He referred to the deceased asking him “to contact David Sharpe of Dibbs Barker about making a Will for her” and when Mr Sharpe informed him that “he no longer did Wills”, that he contacted Mr Mattick, upon Mr Sharpe’s recommendation, and “arranged for him to attend the deceased’s residence for the purpose of preparing a Will for her”.

In his second affidavit, after referring to his first meeting with the deceased, the Plaintiff stated that he met the deceased again in the “1990’s (or possibly the late 1980’s), when she started to visit his office, and on occasions “she had my secretary do things for her that were administrative in nature in relation to correspondence such as copying or faxing documents”. (He did not ask the deceased to pay him for this work.)

It was also, at this time, that he started visiting her at the Janet Street property “about once every three months…at her request, usually to convey her mail…or when there was something that needed to be done around the house that she couldn’t do”.

The Plaintiff went on to state other things that he started to do for the deceased “[B]eginning at some time after 2004”, such as “to look after [her] two dogs at my home for up to several months at a time when she was in hospital or convalescing”. He also stated that “[T]here were a considerable number of veterinary bills during the time that Mrs Thompson’s dog stayed with me that I paid”, only some of which were reimbursed.

He did not, at any time during the proceedings, provide a schedule of veterinary bills paid by him, for which he was not reimbursed. Bearing in mind the alternative claim for equitable compensation, his failure to do so, without explanation, is a relevant consideration.

The Plaintiff said that in 2008, the deceased gave him a key to the Janet Street property and that “[F]rom about 2008….my visits to her home increased in regularity... from this time I visited her weekly”, the purpose of the visit being to bring her food or to have her prescriptions filled at the chemist. He also stated that she “reimbursed me in cash for the shopping that I did for her and sometimes she wrote me a cheque when the amounts that I had spent exceeded the cash that she had”. He also said that she did not always do so, and that “I estimate that over the years I spent several thousand dollars on behalf of Mrs Thompson for which I was not reimbursed”. The calculation of this estimate, which is vague, was not disclosed.

The Plaintiff asserted that from about 2010 onwards, “I continued to assist Mrs Thompson in various ways on a regular basis”. He set out what he did for her. He specifically asserted that “[F]rom about 2012, I also took Mrs Thompson’s washing home and my wife did the washing, which I returned to Mrs Thompson the following week”. (I shall later refer to Mrs Blacket’s evidence about this aspect.)

In relation to the deceased’s statements of testamentary intentions, the Plaintiff asserted (without objection):

I have earlier referred to the conversations that the Plaintiff says he had with the deceased in about 2014, which resulted in him first contacting Mr Sharpe, who referred him to Mr Mattick.

The Plaintiff also stated:

In his next affidavit, the Plaintiff repeated what he had done for the deceased. In addition to what he had earlier written, he stated that “I would often accompany Mrs Thompson to various doctors and hospital appointments” and “…often made calls to [her] general practitioner, Dr Grimsdale when Mrs Thompson was unwell, and called ambulances for Mrs Thompson when required”. He stated the steps he would take to have the deceased transported to a medical appointment and estimated the time he had spent on each such occasion (3 hours).

He also stated that he assisted the deceased with buying larger items for her home, including a television. He attached “excerpts” from his American Express Card statements for the months of October, November and December 2011; January and February 2012; the year end summary for 30 June 2012; for the months of January, February and December 2013; August, September, October, November and December 2014; and January 2015, which he stated “are some examples of my spending for Mrs Thompson”.

During cross-examination, when questioned about whether transactions shown on the credit card statements represented shopping actually done by him for the deceased, the Plaintiff responded “Yes, mostly. I can't guarantee a hundred per cent but since I did very little shopping, they would have to be, I would think” (T33.40 – T33.43). He acknowledged that it was difficult to identify which expenses were related to his personal, or private, spending, and which related to purchases for the deceased.

He also acknowledged that he could not be certain which expenses he may have been reimbursed for by the deceased, and which expenses may have been personal expenses incurred by Mrs Blacket, who also used the same credit card: (T36.1 – T36.4).

He stated that the deceased would “often reimburse me with cash … or would write me a cheque but on numerous occasions did not pay me in full [or]…would not pay me at all”, on the latter of which occasions she would say “don’t worry, you will be well and truly recompensed”. He estimated that she said this “on approximately ten occasions between 2010 and 2015”.

The Plaintiff stated that he had provided copies of the bills for all the shopping expenses he had incurred on behalf of the deceased to the Defendants following the death of the deceased, but that these had not been reimbursed (T37.21 – T37.24). (There was no evidence of any call for the production of these documents.)

There are expenses which were identified by the Plaintiff as relating to expenditure for the deceased, such as transactions relating to the “Veterinary Specialist Centre” in Drummoyne and the IGA/Franklins/Coles in Drummoyne (T105.15 – T105.18). Considering only these transactions, which are included in the credit card statements over the period of October 2011 to January 2015, some of which may have been reimbursed by the deceased by cash or cheque, these nonetheless only come to about $2,700. It is not possible to determine which, if any, of these expenses were reimbursed by the deceased.

In his affidavit affirmed 30 November 2016, the Plaintiff also stated:

In his affidavit in reply, the Plaintiff referred to the “notes” that had been the subject of requests made before, and during, the Probate proceedings. He stated that “[T]he notes I was referring to were notes written by, or for, Mrs Thompson while she had been in hospital, leaving her estate to me”. He also stated that when he asked about the notes “Mr Barnett responded saying ‘Yes, but they were not signed’”.

The Plaintiff also returned to the topic of what he had done for the deceased. He stated that he:

The Plaintiff acknowledged that had found the deceased “fascinating…quite intelligent, smart, worldly and very interesting …very strong minded, and yet quite vulnerable at the same time”.

The Plaintiff acknowledged that the deceased had become upset with him once, when he suggested that she go into a nursing home and once when he had got her dog’s coat clipped. On one occasion, she had asked him to return the key to the Janet Street property to her. Subsequently, she contacted him, had asked him to come over and “our relationship continued as usual”.

Mrs Blacket recalled that the Plaintiff and the deceased “were friends”. In her affidavit, she stated:

Mrs Blacket stated that the Plaintiff would bring the deceased’s sheets and bedclothes for her to wash “when she was in hospital or was ill. I recall this occurred around ten or so times”. She also confirmed that she and the Plaintiff would look after the deceased’s dogs, and would also look after the deceased’s jewellery when she went into hospital, always returning it when she had been discharged.

In relation to the Certificate of Title, Mrs Blacket asserted that, in around 2010 or 2011, the Plaintiff showed her the Certificate of Title to the Undine Street property and said that “Mrs Thompson gave this to me today. She wants me to keep this as she wants me to have her house”.

In her affidavit, Ms Blacket stated that the deceased had said to the Plaintiff, in her presence, that he “can have the model yacht on the mantle when I’m gone” and that she “could have some of [the deceased’s] possessions after she passed, including on one occasion where she offered me her shares in Macquarie Bank”.

Ms Blacket also gave evidence that the Plaintiff had told her words to the effect: “Mrs Thompson indicated to me that I would receive the house or a share of her estate upon her passing”.

In relation to Dr Grimsdale, whenever she saw the deceased for an appointment, it was “always” at the Janet Street property. For approximately the first year that she was the deceased’s general medical practitioner, she understood that Mr Hiscox was providing the deceased with assistance that she required in activities of daily living, that he visited the deceased weekly, usually on a Wednesday to do her shopping and help her with her financial matters. She had met him once at the Janet Street property. She recalls Mr Hiscox having taken the deceased to a podiatrist on a few occasions.

She “became aware” of the Plaintiff in about August 2011, after which time “it became apparent to me that it was [he] who was providing … her assistance, including buying groceries, purchasing other items if required, providing emergency assistance and looking after her dog when she was unable to”.

Dr Grimsdale says that the deceased told her of many occasions when she had called the Plaintiff for emergency assistance, and that he always went to see her promptly if asked. The deceased confirmed that “Mr Blacket’s wife and daughter would also assist by collecting and doing Mrs Thompson’s laundry from time to time”. (There is no suggestion by Ms Blacket of any involvement in doing laundry for the deceased.) She also states that the deceased had told her that the Plaintiff and Mrs Blacket had changed her incontinence pants on many occasions.

Dr Grimsdale recalled that the deceased had given her permission to speak to the Plaintiff about her medical condition, and she remembered speaking to the Plaintiff about the deceased in November 2011, November 2013 and in April 2014. It had been the Plaintiff who had found the deceased when she suffered a fall on 3 March 2015. It had been the Plaintiff who had asked her to visit the deceased on 17 March 2015 “as he was concerned about Mrs Thompson’s worsening breathlessness”.

In relation to some evidence in her affidavit that was rejected, but with leave given to adduce oral evidence, Dr Grimsdale, in chief, gave the following evidence at T118.17 – T118.30; and at T119.01 – T119.08:

Mr Barnett stated that from about mid-2006, until January 2008, at the deceased’s request, he would check her post office box once every one or two weeks and send to her the mail he retrieved from that post office box. The year before, he had started to do her grocery shopping for her, sending the groceries, together with the receipt for its costs, to her, by taxi. The deceased would reimburse him, usually, by cheque, every few weeks or sometimes, months. In addition, he would do other errands for her, at her request, such as depositing cheques into her bank account.

It was Mr Barnett who principally corresponded with Mr Gaydon in relation to renovations and repairs to the Janet Street property and for reimbursement for maintenance expenses to that property. It was he who arranged lawn mowing services for both the Janet Street property and the Undine Street property. It was also Mr Barnett who corresponded with the City of Canada Bay Council in relation to the Undine Street property.

Even after the rescission of the Power of Attorney, he continued to provide some assistance to the deceased, particularly in relation to the two properties. This followed Mr Barnett informing the deceased that he was thinking of selling his solicitor’s practice. At the time she rescinded the Power of Attorney, she stated that she was going to appoint Mr Hiscox.

In about 2013 or 2014, the deceased gave Mr Barnett instructions to write to the Plaintiff to advise him that the Power of Attorney she had granted to him had been revoked.

Mr Barnett gave evidence that following the deceased’s death, he was contacted by the Plaintiff, who said that he attended at the deceased’s home and had found her dead.

Mr Barnett asked whether any Will later than the 2003 Will appointing him and the other Defendants had been located, to which the Plaintiff replied that there was an unsigned Will at the Undine Street property. A meeting was arranged on either 2 or 9 May 2015. I have referred to the conversation that occurred at the meeting earlier in these reasons.

Mr Barnett gave evidence of the deceased handing him the Certificate of Title to the Undine Street property prior to 2008, saying that she was thinking of selling it, and wanted him to hold it for her because she did not want to lose it.

Mr Hiscox gave evidence of the assistance that he had provided to the deceased. That assistance included dealings with her Daimler, including registration renewal and arranging for general maintenance and repairs; explaining to her the financial accounts relating to her mother’s estate; from about 2008 or 2009, until about 2013, doing her shopping; when he was appointed her Attorney, in about 2008, managing her share portfolio; visiting her regularly to assist her dealing with mail and ensuring that bills were paid, including, on occasions, writing cheques which she reviewed and signed; visiting her in hospital, on occasions.

Mr Hiscox met the Plaintiff, for the first time, in about October 2010. On this occasion, the deceased identified him as a real estate agent who was “helping me to sell the house” (which Mr Hiscox understood to be the Undine Street property). There was no suggestion, on this occasion, of any other relationship between the deceased and the Plaintiff and Mr Hiscox does not recall the deceased mentioning the Plaintiff at any time previously.

He denies that the Plaintiff assisted the deceased with her shopping as regularly as he had suggested. He points to cheques made payable to one Barbara Davis, for shopping done for the deceased between February and May 2013. He also denies any assistance provided by the Plaintiff in relation to the Daimler car or in relation to the deceased’s portfolio of shares.

Mr Gillis gives evidence of having first met the Plaintiff in 1990 and then again in 1995, on each occasion other than through the deceased.

He acknowledges that in about 2005, the Plaintiff had a dog which he identified as belonging to the deceased, which dog he was looking after whilst she was in hospital. He states that on no occasion that he met the Plaintiff after that time, did the Plaintiff tell him of the amount of work that he alleged, in these proceedings, that he had done for her or that she had made any statements to him in relation to her estate or in respect of the Undine Street property.

On the Friday prior to the hearing, albeit later than had been directed, the parties delivered to the Court three folders of documents in date order, comprising about 625 pages of documents, from different sources, including diary entries of the Plaintiff, medical records and records produced by different solicitors. The three folders were marked Ex. A1, Ex. A2, and Ex. A3 respectively. The manner in which the Exhibits were prepared has proved extremely useful and the Court is grateful for the effort of the solicitors in completing this onerous task.

I have referred, and shall now refer, to some of the documents which formed part of the evidence. Unless otherwise identified, the documents are from one, or other, of these three exhibits. It is not necessary, in the circumstances, to identify the reference in the exhibits.

It was accepted that, with the exception of the 2003 Will, there is no document, written, or signed, by the deceased, which reveal her testamentary intentions. There are also no documents written, or signed, by the deceased, which support the version of events given by the Plaintiff.

It should also be noted that the Plaintiff accepted that he had not taken, or made, contemporaneously, any written record of any of the conversations with the deceased about which he had given evidence in relation to how she proposed to leave her estate: T83.35 – T83.42.

Importantly, Mr Hiscox specifically denied having been given any “notes” written by the deceased, or having made any notes himself, at the request of the deceased, whilst she was in hospital, that disclosed her intention to leave the whole or any part of her estate to the Plaintiff.

The Plaintiff did not call any witness who had heard the deceased make the statements to him, upon which he relied (other than, perhaps, Mr Mattick, to whose evidence I shall come).

The Plaintiff accepted that the statements he asserted the deceased had made to him were made in the context of “her saying to you that she first must make a Will, wasn't it? "I must make a Will", yes…”: T95.40 – T95.42. He accepted, also, that he believed that she had not made any Will: T72.7 – T72.8.

There is evidence of discussions that the deceased had about making a Will that are really not the subject of any dispute. I shall refer to documents of third parties, where available, that appear to have been prepared following discussions with the deceased, albeit that she did not sign any of the documents. I shall also refer to the circumstances surrounding the giving of instructions for the making of the 2003 Will.

In 2003, the deceased asked Mr Barnett to draft a Will for her. She said that he had been very good to her and wanted to leave her house to his two children, Lyndon and Tristan. It was Mr Barnett who referred the deceased to the solicitor, Mr Norwood.

During the first half of 2003, the deceased also said to Mr Gillis, on a number of occasions, that she wanted to make a Will, and in that Will, leave her home to him. He thanked her, but refused, saying that he did not want her to do that.

Subsequently, Mr Norwood contacted Mr Gillis, whilst he had the deceased with him. Mr Norwood informed Mr Gillis that the deceased wished to leave Mr Gillis her home. Again, Mr Gillis refused, but added that if the deceased remained of that view, then he “would rather that she left her home to my father’s grandchildren, my two boys. Yvonne was very fond of my father”.

In fact, the deceased did not do either of these suggested things as is evidenced by the terms of the 2003 Will.

In 2007, the deceased telephoned Mr Barnett and said that she wished to make another Will. At the request of the deceased, Mr Barnett asked Mr Norwood to contact her. There is no evidence that the deceased gave instructions to Mr Norwood, at this time, to draft another Will for her. In fact, subsequently, the deceased told Mr Barnett that she did not wish to use Mr Norwood as her solicitor as “[A]ll he wanted to do was put me in a nursing home”.

In about 2009, the deceased told Mr Hiscox that she wanted to leave everything to him in her Will. She requested him to contact Mr David Sharpe, a solicitor, as she wished him to draft the Will for her. He contacted Mr Sharpe and made arrangements for him to attend upon the deceased.

Mr Sharpe attended upon the deceased on about 20 July 2009. Whilst Mr Hiscox took Mr Sharpe to the Janet Street property to meet with the deceased, he waited outside whilst the deceased and Mr Sharpe discussed matters.

A few weeks later, Mr Sharpe contacted Mr Hiscox telling him that he had drafted a Will and that he was ready to attend upon the deceased to have her sign it. They made arrangements for him to attend upon the deceased on 31 August 2009, but when Mr Hiscox telephoned the deceased, on that day, to remind her of Mr Sharpe’s attendance that evening, she told him that she “[didn’t] want to sign anything today. Tell him not to come”.

Following the instructions from the deceased, the Will drafted by Mr Sharpe was never signed. A copy of this draft Will does not form part of the evidence.

On about 7 December 2011, Mr James Searley, who was a friend of the deceased, but who had not seen her for over a decade, telephoned the deceased, who asked him if he could locate a solicitor, Mr David Sharpe “of Dibbs Crowther”. After some investigations, Mr Searley sent an email, dated 8 December 2011, to Mr Sharpe informing him of the deceased’s request.

Although the handwritten note is undated, there is said to be a “Handwritten file note re Will by Dibbs Barker” in evidence (Ex. A3/330) which is in the following terms:

There is also another handwritten file note which bears date 28(?)/3 (Ex. A3/331) which refers to the deceased, to the Plaintiff as “P of Attorney”, to “Wills”, to “Guardian Appointment” to “Peter executor” and to the deceased’s name.

Mr Sharpe wrote a letter dated 8 May 2012 to the deceased, enclosing “a draft Will for you to consider”. In the draft Will, the deceased revoked all wills and testamentary dispositions previously made, appointed the Plaintiff as sole executor and trustee, and left the whole of her estate to the Plaintiff absolutely.

The draft Will bears a notation on the bottom “19579711 vi Sydney 01 05 12”. (There is no reference to a bequest of the “Car & piano to Graham Keith Barnett” or the reasons for omitting her sister or family.) In the circumstances, I cannot be confident that the handwritten note, referred to above (Ex. A3/330) is the handwritten file note said to have been made by Dibbs Barker in 2012.

In that letter, Mr Sharpe also enclosed “photocopies of the Power of Attorney and Appointment of Enduring Guardian which were signed by you on 27 March 2012 and have now been countersigned by Mr Blacket”. He also referred to “a recent telephone conversation [in which] you indicated that you had changed your mind about the Appointment of Enduring Guardian”.

A draft copy of this Will appears in evidence (Ex. A2/116), an identical copy of which was annexed to an affidavit of the Plaintiff, referred to as “an unsigned Will for the deceased headed ‘Draft’”, a digital photograph of which was taken by Ms Blacket.

In about April 2014, Mr Hiscox visited the deceased at the Janet Street property, and she asked him to draft a Will for her, in which he was to be named as the executor. She said that she wanted “to give the figurines and the cabinet to Lorraine and $5,000 to Peter Blacket. The rest of the estate will go to you”.

In 2014, Mr Hiscox prepared a draft Will on his computer, and when he took it to her in hospital to sign, she said, “I want to give the piano to Graham Barnett”. Mr Hiscox made that amendment and he brought the amended draft Will to her a few days later. She then said that she wished to increase the legacy to the Plaintiff to $20,000. He made that amendment on 2 July 2014.

The deceased did not sign the final draft (a copy of which is in evidence) prepared by Mr Hiscox. (A copy of each of the documents prepared by Mr Hiscox is in evidence.)

The Plaintiff gave evidence that around “the middle of 2014”, the deceased asked him to contact Mr Sharpe to have him prepare a Will for her. The Plaintiff contacted Mr Sharpe, on 24 July 2014, who referred him to another solicitor, Mr Paul Mattick, at Five Dock. The Plaintiff telephoned Mr Mattick on about 26 July 2014.

In mid-August 2014, the Plaintiff contacted Mr Mattick, again, and arranged for him to attend upon the deceased.

In his first affidavit (February 2016), the Plaintiff gave no evidence of what happened subsequently. However, in his affidavit of 4 November 2016, the Plaintiff added that he was at the Janet Street property when Mr Mattick attended.

It is important to set out, verbatim, the Plaintiff’s affidavit evidence on this topic. I refer, first to Paragraphs 32 and 33 of the Plaintiff’s 4 November 2016 affidavit:

In Paragraph 47 of the Plaintiff’s affidavit (in reply) of March 2017, he stated that when he attended at the Janet Street property and met Mr Mattick, he was present to “let him in. It was then that I heard Mrs Thompson say ‘I want to leave everything to Peter’”.

Documents produced by Mr Mattick reveal that he received an email, on 12 August 2014, from the Plaintiff, asking Mr Mattick to contact the Plaintiff regarding the deceased. Mr Mattick spoke to the Plaintiff by telephone, on 13 August 2014, and arranged to attend the Janet Street property on 15 August 2014, which he did.

Although Mr Mattick did not provide an affidavit to either party, under subpoena, he produced the typed File Note covering the period 13 August 2014 to 18 August 2014.

Relevantly, in this File Note, he stated that the Plaintiff was present when he first met with the deceased. He wrote that he had “general discussions with [the deceased] to start with, who appeared to be lucid”. He then set out, in some detail, the topics of discussion. The File Note (with typographical corrections as to the name of the Plaintiff) then stated:

(There was no dispute that the reference to the “copy of the Will” that the deceased wanted Mr Mattick to return to her, was a copy of her mother’s Will that had been provided to him: T71.12 – T71.16, T76.26 – T76.31.)

On 15 August 2014, at 4:15 p.m., Mr Mattick sent an email to the Plaintiff, which was in the following terms:

There was further correspondence passing between the Plaintiff and Mr Mattick to which the Plaintiff did not make reference. Importantly, there was an email from Mr Mattick to the Plaintiff late on 18 August 2014, which was in the following terms:

Again, there is no dispute that the Will to be returned to the deceased was her mother’s Will.

The Plaintiff responded to this email asking him to “Please just hold things at the moment”.

Of course, the Plaintiff was cross-examined about the discussion that had taken place when Mr Mattick had attended the Janet Street property: T70.21 – T75.09. The Plaintiff’s evidence is too long to repeat verbatim, but in substance, whilst accepting that “quite possibly” the deceased had said "Look, I just need to think about it first and I will let you know" which suggested that she did not give Mr Mattick instructions, on that day, to actually prepare a Will for her, the Plaintiff asserted that “I don't remember the part of the conversation but quite possibly it could have happened, I don't know. I am not avoiding it, I just don't know”.

The Plaintiff accepted that prior to meeting Mr Mattick he did not believe that the deceased had made a Will: T47.44 – T47.45. He also accepted that he had encouraged her, many times, to do so, saying, "You must make a Will because it's going to be a mess if you don't": T48.11 – T48.12.

The following passage of evidence, given by the Plaintiff, at T75.44 – T76.06, about the events involving Mr Mattick bears repetition:

And then at T77.15 – T77.24:

There is a diary entry which appears to have been made, by the Plaintiff, on 30 April 2015 (following the death of the deceased), is in the following terms (doing the best I can to read the Plaintiff’s handwriting):

The draft Will being referred to, which the deceased did not sign, is not identified.

The same diary entry also refers to (as it appears to read):

There is a reference to Mr Searley as “Mrs Thompson’s friend” and a telephone number in the Plaintiff’s diary entry of 7 May 2015. This suggests that the Plaintiff may have had a conversation with him, or at least, had his telephone number at this time.

Although the Plaintiff said that he had not made a note of the events that had occurred when Mr Mattick attended upon the deceased, he did so, subsequently. In a Diary Note, said to have been written by him on 3 May 2015, (after the deceased’s death), the Plaintiff wrote:

The Plaintiff did not obtain any evidence upon which he relied from either Mr Searley, or from Mr Sharpe, each of whom, presumably, could have given evidence of the circumstances surrounding the instructions for, and the preparation of, any draft Will that had been prepared by Mr Sharpe. There was no explanation given for the failure to call each of them.

Although this is not a case involving the capacity of the deceased, her medical condition and some of the medical records are relevant to the matters for determination. Amongst other things, there is a reference in some of the records to the Plaintiff and to Mr Hiscox. In addition, the records reveal the occasions when the deceased was admitted to Hospital, or was otherwise away from the Janet Street property.

The deceased presented at the Royal Prince Alfred Hospital Emergency Department on 2 January 2007, after developing right upper limb weakness and difficulty mobilising. She was diagnosed as appearing “to have had a lacunar stroke secondary to small vessel disease”.

She was admitted to Balmain Hospital shortly thereafter, and was discharged on 22 February 2007. The Discharge Plan from the Hospital identified Mr Barnett as the deceased’s “Next of Kin”.

A discharge letter from the Home based therapy team at the General, Geriatric & Rehabilitation Medicine unit of Concord Hospital, dated 12 July 2007, stated “[the deceased] reports that she is being cared for by a friend on the central coast, and that is returning there in the next few days”.

The deceased was admitted to Concord Repatriation General Hospital on 20 July 2009 and was released on 22 July 2009. In the Aged Care Discharge Referral, there is a reference to “friends help with shopping and cleaning”. The “friends” are not identified by name.

There is evidence that the deceased was admitted to Concord Hospital, in all probability, on 22 September 2011 (Ex. A1/74). When she was discharged is not clear. However, in Clinical Progress Notes, dated 3 October 2011, of the Sydney Local Health Network, there is a reference to:

In the Clinical Progress Notes for 4 October 2011, there is a reference to:

In a medical record, dated, 27th February 2012, the following passage appears (Ex.4):

The deceased was admitted to Concord Repatriation Hospital on 28 August 2012 and remained a patient there until 18 October 2012. The principal diagnosis upon admission was “a low impact right calcaneal fracture”. In a referral letter, bearing that date, from Dr Grimsdale, she writes that the deceased “lives alone with help from friends”.

The Aged Care Discharge Referral (printed on 5 November 2012) reveals that the deceased was “living at home alone; [she has] supportive friends; GP noted unkempt home and borderline home situation; frozen meals; utilises laundry services; reluctant to be involved in assessments with OT [Occupational Therapist] and SW [Social Worker]”. A MMSE [Mini–Mental State Examination or Folstein test] score of 28/30 was shown.

The deceased was re-admitted on 30 October 2012 and was discharged on 15 January 2013. On this occasion, she had “presented with fracture of the right neck of her femur post fall”.

The deceased was admitted to Concord Repatriation Hospital on 28 November 2013 and remained a patient there until 23 December 2013. The principal diagnosis upon admission was an “undisplaced oblique fracture of the right medial femoral condyle”.

The Aged Care Discharge Referral (printed on 23 December 2013) reveals that the deceased had contacted Dr Grimsdale “who came and got her onto a chair, examined her and thought it was likely to be musculoskeletal pain in the right knee”. It then states:

The deceased appears to have been discharged to the Willows Nursing Home in Ashfield, where she remained for a few weeks “as she required higher level of care”.

(On 31 March 2014, Mr Hiscox sent a cheque to the Nursing Home and advised that the deceased had requested him to advise “that she was not satisfied with the service she received”.)

The deceased was re-admitted to Concord Repatriation Hospital on 7 February 2014 and remained a patient there until 25 March 2014. The principal diagnosis upon admission was “rehabilitation post right medial femoral condyle fracture”.

In the Aged Care Discharge Referral, there is a reference to there having been “several lengthy discussions between Mrs Thompson, her NOK Peter (friend), OT and Social work”. Under the heading “Management Plan” there is a reference to “Friend Peter notified about discharge situation – agreed to try and aid in support at home if there is ongoing refusal of services”.

On 29 April 2014, the deceased was re-admitted to Concord Repatriation Hospital and remained a patient there until 5 August 2014. The principal diagnosis upon admission was “fall requiring rehabilitation….decreased mobility secondary to pain post fall… cough and hospital acquired pneumonia, malnutrition and constipation”.

In the Admission Summary Sheet, the Plaintiff is identified as the “Person to Contact” and also “Next of kin (friend).”

In the Aged Care Discharge Referral, there is a reference to “Assistance with shopping by friends (Peter – pt’s power of attorney and John – pt’s accountant”. There is also a reference to “social work who liaised with Mrs Thompson’s two friends John Hiscox and Peter Blackett (sic)” and that as “it was felt that [the deceased] was not fit to make decisions regarding her discharge”, she was “referred to Guardianship Tribunal….hearing scheduled for 19/8/14 at 9:30 a.m. – Peter Blackett (friend) aware of this … For a long period of time Mrs Thompson declined in home services – later in her admission, her friend Peter was able to convince her to accept home services twice daily”.

There is also a reference to:

In the Clinical Progress Notes by the social worker on 13 May 2014, there is a reference to the deceased having informed that “…her friends John who lives in Dee Why and Peter who lives in Bellevue Hill, do her shopping 1/7…Pt reports no family or friends other than John + Peter”.

In the Clinical Progress Notes on 19 May 2014, there is a reference to”

A Neuropsychology Report, dated 21 May 2014, (to which reference was made earlier in these reasons) states (Ex. A2/168):

Clinical Progress Notes dated 28 May 2014 contain the following entry:

(I assume that A + O means “alert and oriented” and SOOB means “Sitting Out of Bed”.)

There is a reference dated 4 June 2014, in the Clinical Progress Notes, to someone from the Hospital having contacted Ms Blacket who said that “she will visit pt tomorrow. Mr Blacket is currently overseas”. (The Clinical Progress Notes for 5 June 2014 do not reveal whether Ms Blacket did visit.)

There is a reference dated 12 June 2014, in the Clinical Progress Notes, to the deceased having said that “John has PoA not Peter. Says Peter has let her down many times. Says Peter never had PoA, always has been John”. It goes on to say “Pt did not seem keen for us to verify this. Insisting that’s what she is telling us”.

In the Clinical Progress Notes, dated 18 June 2014, there is subsequently a lengthy entry of a conversation with Mr Hiscox regarding the deceased. He confirmed his concerns about the deceased returning home and was told of the concerns expressed by the author of the notes “decision making capacity of Yvonne appears impaired & this influencing judgement”.

On 23 June 2014, there is a reference to a “Family meeting” at which the Plaintiff and Mr Hiscox attended with members of staff of the Hospital. The following passage appears in the Clinical Progress Notes:

In an Occupational Therapy Report, dated 9 July 2014, sent to the Guardianship Tribunal, the following passages appear:

In an entry in the Clinical Progress Notes dated 29 July 2014, there is a reference to the Plaintiff having telephoned the social worker and to enquiries he had made of “Dutiful Daughters”, a private agency to provide services to the deceased. There is a further entry on 4 August 2014, referring to the Plaintiff agreeing to meet the deceased when she was taken from the Hospital to the Janet Street property the next day.

An “Allied Health Discharge Summary” (perhaps prepared on about 2 December 2014) refers to “Both Mrs Thompson and her support person, Mr Blackett (sic) were offered assistance to set up support services at home however said they prefer to arrange private services themselves…”. On the next page of this document is a reference to the deceased being “[s]upported by friend Peter”. There is also a reference to the deceased being “severely malnourished”.

There is a letter dated 16 February 2015, from Associate Professor Vasi Naganathan, Consultant Geriatrician, addressed to Dr Grimsdale, in which he refers to having spoken to the Plaintiff by telephone. He reports:

(As previously stated, in an entry dated 27 May 2014, the Clinical Progress Notes of the Hospital, refers to having spoken “to Peter yesterday – does not want his children involved in her personal care”. In any event, there is no evidence that any of his children, nor his wife, were involved.)

In February 2015, the Plaintiff went on an overseas holiday to the Caribbean and Barbados: T79.14-17.

On 22 February 2015, the Plaintiff sent an email to his daughter, which, relevantly, stated:

It is not known whether Ms Blacket did go over, but it may be that this is the occasion of the deceased’s birthday when she did.

The deceased appears to have had a fall shortly before 3 March 2015. She appears to have been found by the Plaintiff “after some time”. Dr Grimsdale’s documents reveal an entry on that date that includes “Upset with him as feels he blamed her for falling”. (The reason for mentioning this entry is that there was some cross-examination of both the Plaintiff and Dr Grimsdale, to which reference will be made, about the events that prompted this entry.)

The Plaintiff sent an email to Mr Hiscox on Thursday 30 April 2015 in the following terms:

The Death Certificate of the deceased reveals that the causes of death were “I (a) Cerebrovascular accident, days; (b) cerebrovascular disease, years; (c) Hypertension, years; and II (a) Hypercholesterolaemia – years”. The Certifying Medical Practitioner, identified on the Death Certificate, was Dr Grimsdale.

There are a number of diary entries under the hand of the Plaintiff in the diaries he produced:

The diary entries which were included in the evidence have been set out in some detail as they do provide corroboration of apparent contact between the Plaintiff and the deceased and of some of the things that he did for her. (A number of the entries demonstrate the steps in which the Plaintiff was involved in trying to organize the deceased to make a Will.) Overall, and on their own, they do not support the involvement in the life of the deceased that the Plaintiff endeavoured to paint, bearing in mind it is a 6 year period covered by the diaries.

For example, there are only two entries (both in February) for 2009. In 2010, there appear to be only diary entries for the period October to December (6 occasions in all). The number of diary entries increases in 2011, and there are entries that reflect at least, monthly, contact. The diary entries in the first quarter of 2012 suggest more frequent contact (weekly to fortnightly on average), yet, there are no diary entries between November 2012 and June 2013, and none in November, or December, 2013. In early 2014, there are entries that again suggest, at least, monthly contact, but there are no diary entries between April and July. Finally, there are no entries from December 2014 until April 2015, with only one in April prior to her death later that month.

The Plaintiff also referred to Telstra records, produced for the first time at the hearing (Ex. C) for the period between 1 January 2012 and 30 April 2015. The Plaintiff’s counsel tendered these to “demonstrate the frequency by which the deceased used her telephone line to make an outgoing call to any identifiable phone number”:T183.10.

Calls were identified to have been made by the deceased to Mr Hiscox on about 90 occasions (with the last call being made on 30 March 2015), on about 250 occasions to the Plaintiff (with the last call made on the 17 April 2015), and on about 20 occasions to Mr Barnett (with the last call being made on 27 March 2014). (In calculating the numbers, duplicate entries have been excluded, but attempted phone calls, even if not apparently connected, have been included.)

Based on the number of calls alone, the deceased most frequently initiated calls to the Plaintiff, compared to the Defendants. As no phone records were tendered by the Plaintiff detailing outgoing calls from the Plaintiff to the deceased, it is uncertain to what degree, these calls represent the totality of the telephone contact between them (or with the Defendants for that matter).

An analysis of the telephone records reveal that of the total number of calls to the Plaintiff by the deceased, in 2012 and 2013, just over 50 calls were made each year, but this doubled to over a hundred in 2014. In the period from January to April 2015, there were almost 40 calls, from the deceased to the Plaintiff. The vast majority of calls were either for less than a minute, or for less than 5 minutes. Often there were multiple calls in a day of varying lengths. In 2012 and 2013, the phone contact averages fortnightly contact, with one to four contacts in a week. In August 2014 the contact increases to almost daily, and reduces to several times a week from September onwards. In 2015, the telephone records show calls from the deceased occurring on two or three occasions per week. Where there are gaps of several months of no phone contact, these appear to correspond to periods when the deceased was known to be in hospital.

I glean from the diaries and the telephone records that, as the deceased’s care and support needs increased, so did the contact with, and the telephone calls to, the Plaintiff.

Finally, before leaving the documents, I should also refer to Ex. 3, being a copy letter dated 9 May 2017, in which the Plaintiff’s solicitors stated that “[the Plaintiff’s] case, as pleaded, does not allege that he suffered any financial detriment through his business, or in relation to his income. Rather, the only financial detriment that our client has suffered is in relation to household goods and groceries purchased by him for the deceased, [the cost of which] were not reimbursed…”.

As stated earlier, no attempt was made by the Plaintiff to quantify the costs of the household goods and/or the groceries for which he said he was not reimbursed.

In other cases involving a claim on the estate of a deceased person in which conversations are said to have taken place with the deceased person that are alleged to give rise to legal or equitable rights, I have referred to a number of principles that are required to be remembered: see, for example, Evans v Braddock [2015] NSWSC 249. For the benefit of the parties, I shall repeat some of what I said, and where necessary, amplify the principles, by reference to subsequent cases.

It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548 – 549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly deny, the specific allegations made by the Plaintiff, in particular.

That need may even be greater where the person giving evidence of the conversations has a self-interest.

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].

Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

Slattery J, in Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666 at [45] – [46], has identified some other authorities in which the principle referred to above has been expounded.

As was also observed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319:

In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10] - [18]. However, as McLelland CJ in Eq had also pointed out, the views apply to all types of litigation.

I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

A Court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (Kenneth Martin J).

As was recently noted by Davies J, with whom Emmett AJA agreed, in The Nominal Defendant v Cordin [2017] NSWCA 6 at [171]:

In this regard, I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:

The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15]), appropriate to remember:

I should also mention an article by the former the Chief Judge at Common Law, P McClellan, entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

In this case, because much has been made of the failure by the Plaintiff to make any mention of the claims to the Defendants at any time before 16 months after the death of the deceased, the observations of Young J in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 at 197, referred to, with approval, in McGrath v Troy [2010] NSWSC 1470 at [124], per White J (as his Honour then was) and by me in The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 at [71] should also be repeated:

Whilst I have borne in mind the explanation of Mr Basha, upon which he was not cross-examined, it is noteworthy that almost all of the information relating to the claim made in these proceedings was omitted entirely from, not only the caveat that was lodged on the Plaintiff’s behalf, the first affidavit sworn by the Plaintiff, and from all of the correspondence passing between the legal representatives of the parties during the Probate proceedings. The omission, in my view, casts some doubt on the Plaintiff’s evidence.

An executory promise, unsupported by consideration, is, prima facie, revocable. However, some subsequent conduct of the intending donor, encouraging, or inducing, the intended donee to act to his prejudice, on the footing that property, or some interest in it, will become his, may make it unconscionable for the donor to withhold the property or the interest in it from the donee, and equity, on that ground, may hold the donee to be entitled to the property: Olsson v Dyson (1969) 120 CLR 365 at 376 (Kitto J).

Promissory estoppel, as its name indicates, is based on a non-contractual promise or assurance, which, in its orthodox form, becomes binding in equity, so as to restrain the promisor from enforcing his strict legal rights: Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388 at [70] (Handley AJA).

(I have not, and shall not, use the word “representation” which, it has been suggested, should be used to refer to statements about an existing or past fact. Reference may be made to a “promise or assurance” to describe the statements of future conduct which can give rise to an estoppel: Equititrust Ltd v Franks at [73] (Handley AJA).)

In this case, the Plaintiff pleads an active form of estoppel referred to as estoppel by encouragement, the essence of which type of estoppel is that the person seeking to assert it has been led to alter his or her position, detrimentally, in the belief that he or she would have an interest in the property of the promisee: Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 at [108].

In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7; Mason CJ and Wilson J, stated at 404, “a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person’s land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances”. Their Honours added, at 406, that a departure from the basic assumptions underlying the transactions must be unconscionable. That element was fulfilled by the party encouraging the opposite party in the assumption that a promise would be performed with knowledge that the other party was relying on that assumption to his, or her, detriment.

Equitable estoppel was described by Mason CJ in Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 409; [1990] HCA 39, as “a label which covers a complex array of rules spanning various categories”. His Honour saw the various categories as having the same fundamental purpose, namely “protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted” (cited in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [1]).

In Giumelli v Giumelli (1999) 196 CLR 101 at 112; [1999] HCA 10, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285, and Ramsden v Dyson (1866) LR 1 HL 129, is now a "well recognised variety of estoppel as understood in equity", which affords relief "found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff".

The joint judgment of Gleeson CJ, McHugh, Gummow and Callinan JJ, in Giumelli v Giumelli at [35], endorsed the explanation given by McPherson J in Riches v Hogben [1985] 2 Qd R 292 at 301, of the distinction between equitable principles and the enforcement of contractual obligations:

To these references may be added the not inconsistent fourth requirement of an estoppel by encouragement, stated by Fry J in Willmott v Barber (1880) 15 Ch D 96 at 105 - 106, and recently referred to by Macfarlan JA in Milling v Hardie [2014] NSWCA 163 at [50] - [52], that “the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights”. Fry J’s description of the elements of the estoppel was approved by the High Court in Svenson v Payne (1945) 71 CLR 531 at 542.

In Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281, Young CJ in Eq dealt with whether one could get relief in a proprietary estoppel case of a promise to leave money by will. His Honour wrote, at [51] - [54]:

His Honour added, at [58]:

I should also mention that his Honour had stated, at [42]:

His Honour returned to the topic in Weeks v Hrubala, in which he wrote, at [34]:

In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21], Handley JA stated that an estoppel by encouragement "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. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part”.

His Honour, at [36], also reached the same conclusion as Young CJ in Eq had in Barnes v Alderton:

His Honour also quoted, with approval, at [81], the comment by Hoffmann LJ in an unreported judgment of Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unrep), that was adopted in Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18, by Lord Walker, at [57] and Lord Neuberger, at [101]:

Allsop P (with whom Giles JA agreed) said, at [5]:

In Thorner v Major, Lord Scott, at 783 - 784, wrote:

Lord Neuberger, at 802, also allowed for the possibility of a change of mind if this “… could be justified by, a change of circumstances”.

French CJ, Kiefel and Bell JJ in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 333 ALR 384, noted at [35]:

Keane J wrote, at [142] – [145]:

In Sidhu v Van Dyke, the High Court (French CJ, Kiefel J, Bell J, Keane J, with whom Gageler J agreed), observed, at [77]:

The plurality, at [61], also made clear that the legal burden of proof borne by a plaintiff did not shift and that it was the plaintiff who “at all times bore the legal burden of proving that she had been induced to rely upon the appellant's promises”.

In dealing with reliance, Gageler J in Sidhu v Van Dyke at [90] – [93], wrote:

On detriment, Bathurst CJ wrote in Ashton v Pratt at [141] – [142]:

In Arfaras v Vosnakis [2016] NSWCA 65; (2016) 18 BPR 35,819, Ward JA (with whom Beazley P and Simpson JA agreed), at [75], referred to the statement by Robert Walker LJ in Jennings v Rice [2003] 1 P & CR 8 ; [2002] EWCA Civ 159 at [44] that “[T]he cases show a wide range of variation in both the main elements [of a proprietary estoppel], that is the quality of the assurances which give rise to the claimant’s expectations and the extent of the claimants detrimental reliance on the assurances, and that this “emphasis[ed] that the doctrine applies only if these elements, in combination, make it unreasonable for the person giving the assurances ‘to go back on them’”.

Handley AJA in Sullivan v Sullivan [2006] NSWCA 312 at [24] – [29]; (2006) 13 BPR 24,755, observed that equity will not grant a remedy that exceeds that which can be justified by the requirement of conscientious conduct and will not grant a remedy which works an injustice on the party estopped.

In DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) [2011] NSWCA 348 , Meagher JA (with whom Macfarlan JA agreed) noted, at [72] – [73]:

It can be seen from these formulations, that in the present case, the Plaintiff bears the onus of establishing that a promise was made, or an assurance was given, by the deceased; that the Plaintiff believed the promise or assurance; and that, on the faith of that belief, he took a course of action or inaction which would turn out to be to his detriment, were the Defendants, as the executors of the deceased’s estate, to be permitted to depart from the promise or assurance. In so doing, he must also establish a sufficient causal link between the promise relied upon and the detriment asserted.

As was put by Macfarlan JA in Milling v Hardie at [55](2):

Whilst a flexible approach in determining the appropriate relief where promissory estoppel is established is adopted by the Court, a principled approach is required. As the learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies caution, “equity is concerned with good conscience, not a sentimental urge to render sinners virtuous”: R P Meagher, J D Heydon and M J Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies (4th ed 2002, Butterworths) at [17–075].

The Plaintiff made no submissions on the principles relating to equitable compensation which was claimed as an alternative to a proprietary interest.

In Van Dyke v Sidhu [2013] NSWCA 198, a case in which on appeal, an entitlement to relief based upon finding proprietary estoppel was made, the following comments made by Barrett JA (with whom Basten JA and Tobias JA agreed) in determining the quantum of equitable compensation, at [139] – [140] are apt:

In Wallis v Wallis [2017] SASC 91, Kourakis CJ wrote, at [21]:

The defence that the Plaintiff is estopped because of the species of estoppel known as Anshun estoppel, can be dealt with quickly, because, in my view, it does not apply.

The foundation of the principle described as Anshun estoppel (derived from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) was enunciated by Sir James Wigram VC in Henderson v Henderson [1843] EngR 917; 67 ER 313, at 319:

In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, French CJ, Bell, Gageler and Keane JJ, after explaining cause of action estoppel and issue estoppel, wrote, at [22]:

It can be seen that the Court must assess the conduct of the party sought to be estopped in a later proceeding in not advancing, relevantly, the claim in the earlier proceeding, and whether it should be said that it was unreasonable of the party not to have advanced that claim. (It is important to note that the assessment is not whether it would have been reasonable to make the claim in the earlier proceedings.)

On that issue (of “unreasonableness”), what was written by Ormiston JA in JA in Gibbs v Kinna (1999) 2 VR 19; [1998] VSCA 52 at 20, is apt:

Kenny JA in Gibbs v Kinna at 26, wrote:

Her Honour added, at [28]:

In addition, as was stated in Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 346; [1990] HCA 8:

It is to be noted that Gibbs CJ, Mason and Aickin JJ wrote in Port of Melbourne Authority v Anshun Pty Ltd at 600, wrote:

The Plaintiff’s primary submission was that the whole of the estate, or alternatively, the Undine Street property, was held on trust for him, because the deceased had stated to him, over many years, that he would inherit her estate, or the Undine Street property, and, in reliance on those promises, he had acted to his detriment.

He relied upon the evidence of similar statements made by the deceased to Joanne Grimsdale, David Sharpe, and Paul Mattick, as corroborative of his claim. (Importantly, in this regard, it is to be noted that the Plaintiff did not call Mr Sharpe, and the statement to Mr Mattick, as known to the Plaintiff indicated an intention to consider the terms of any Will further.) Dr Grimsdale did not give evidence of having heard the deceased make any assurances to the Plaintiff.

The Defendants’ counsel submitted that the claim that the deceased represented to the Plaintiff that she would leave all of her estate to him was inconsistent with at least three parts of the evidence:

It was then contended that the deceased encouraged the Plaintiff to assume that the Undine Street property would be left to him, not only by words but by action. In this regard, the Plaintiff relies upon the deceased having handed the Certificate of Title to the Undine Street property to him and that she is said to have stated at the time, “I would like you to have these [title deeds] Peter”.

The Plaintiff also relied on the fact that the deceased never asked for the Certificate of Title to be returned to her.

The Defendants’ counsel submitted that the Plaintiff accepted that the deceased asked him to sell the Undine Street property at about the time that she handed him the Certificate of Title. Accordingly, the Plaintiff could not have reasonably have thought that the deceased intended to give him the very property that she had engaged him to sell. Any suggestion made by the Plaintiff that the deceased may have been gifting him the proceeds of sale is not supported by any evidence.

The Plaintiff also submitted that on numerous occasions thereafter, the deceased encouraged the Plaintiff to rely on the expectation that she had created, including words to the effect of, “of course, you know I am leaving everything to you Peter”, and “What will you do with the house after I die? Will you rent it out or sell it?”

Furthermore, she did not always reimburse the Plaintiff in full for amounts expended by him on her behalf. On such occasions the Plaintiff gave evidence that the deceased would sometimes say words to the effect of, “Don’t worry, you will be well and truly recompensed”.

The Plaintiff submitted that the Court should accept his, and the evidence of his wife, and their daughter, namely that he took the deceased at her word when she repeatedly stated that her estate would be left to him. Based on the deceased’s conduct in accepting the extensive assistance provided by the Plaintiff and the comments made by her in that context, the Plaintiff contended that his reliance on those statements was reasonable.

The Plaintiff further submitted that as the demands of caring for the deceased increased, in later years, it was her continual encouragement of the assumption that her estate would be left to him which caused him to expend extensive time and energy on meeting the deceased’s needs.

The Defendants submit that in circumstances where the deceased, more than once, refused to make a Will leaving everything to the Plaintiff, it was not reasonable for the Plaintiff to rely on any statement made in those terms to him.

The Defendants submitted that statements about testamentary intentions, and wills themselves, are inherently revocable. People are well aware that wills can be changed. It is for this reason that, in the ordinary case, it is very difficult for a testamentary promise to form the basis of a proprietary estoppel. Reliance was again placed on the Plaintiff’s acceptance of the words said by the deceased to his daughter, relating to her receiving part of the deceased’s possessions upon her death: T47.27 - T47.29.

Counsel for the Defendants also submitted that the Plaintiff’s memory of the events in question is poor and unreliable. The Plaintiff’s claims are based on conversations that he had with the deceased from 2005 until her death in early 2015. Other than the file note made by Mr Mattick, there are no contemporaneous records which record or summarise those conversations. The Plaintiff had also conceded that he had not taken, or made, any diary note in relation to any conversations with the deceased: T83.35 – T83.42.

The Plaintiff was also said to have exaggerated the assistance that he had provided to the deceased in a number of important areas, such as the amount of times his wife had done laundry for the deceased: T38.4 – T38.20; the number of times that Mrs Blacket and Ms Blacket had visited the deceased: T39.33 – T39.41; the extent of the correspondence the Plaintiff had on behalf of the deceased with Mr Gaydon: T43.21 - T43.26; the extent that he had shopped for the deceased (pointing to the cheque summaries that indicate that the first cheque to Mr Blacket for shopping was not until September 2013: Ex. A1/13); and the Plaintiff’s evidence suggesting that the deceased had understated the assistance that she was receiving: T66.48 - T67.33.

The Defendants also contended that the Plaintiff was evasive in answering questions. By way of example, counsel pointed to the fact that although the Plaintiff accepted that he was present for the discussion about the Will with Mr Mattick: T71.37 – T71.49, when he was challenged about parts of the meeting that were contrary to his interests and which had not formed part of his affidavit evidence, he suggested he may have stepped away from the meeting to get a cup of tea: T74.23. They also pointed to the Plaintiff’s evidence about whether he knew that it was likely that the executors would take steps to sell the Undine Street property, or whether the executors needed the title deeds in order to either sell or transfer it: T90.30 - T91.50.

Finally, the Defendants submitted that the Plaintiff did not take the steps that would ordinarily be expected if he had relied upon a promise made by the deceased that she would leave her estate to him:

Other evidence relied upon by the Plaintiff cannot be given too much weight, such as Mrs Blacket’s evidence about the assistance given by the Plaintiff to the deceased, as she did not accompany her husband to the deceased’s home, and at best, can only give second hand evidence of what he told her.

With regard to the evidence of Mrs Blacket regarding what the Plaintiff said the deceased told him when he returned home with the Certificate of Title from the Undine Street property, the Court should not place any weight on second hand hearsay evidence which is 7 years old. This is particularly so in circumstances where the deponent is the wife of the Plaintiff with an indirect interest in the result of the proceedings.

The Defendants’ counsel submitted that Dr Grimsdale never heard the deceased make any statement to the Plaintiff. The only evidence on that issue that she gives is what the deceased told Dr Grimsdale she wanted to do with her estate. That is not evidence of what the deceased said to the Plaintiff. In any event, it is clear enough that Dr Grimsdale’s knowledge of what the deceased told the Plaintiff about her estate is limited. Dr Grimsdale was not aware of the meeting between the deceased, Mr Mattick and the Plaintiff: T132.30 - T132.34.

Furthermore, Dr Grimsdale’s knowledge of the assistance that the deceased received from her friends is also limited. Dr Grimsdale gave evidence that she was not aware of anyone other than the Plaintiff involved in the deceased’s personal care during the last three of four years of her life. However, Dr Grimsdale did not see the deceased at all for 13 months of that period, that is between 26 October 2012 and 26 November 2013: T123.6 - T123.10.

Although the Plaintiff’s claim is that in reliance on what the deceased told him, he cared for the deceased, the Defendants submit that the care that the Plaintiff provided to the deceased was quite limited. They contend that he did not make any financial contributions to the deceased or to her property. He did not live with the deceased or invite her into his family. He did not give up, or compromise, his career because of the deceased. Instead, in the deceased’s final years, he assisted her with tasks such as the delivery of groceries, taking her to doctors’ appointments, looking after her dog and taking it to the vet.

They also point to evidence that he was not the only person to assist the deceased. The Defendants submit that Court should also not accept that the Plaintiff has established material detrimental reliance.

Furthermore, it is argued that it is important to keep in mind that the Plaintiff was already assisting the deceased before she made the alleged statements about her estate. Therefore, the Plaintiff must show that he continued to provide assistance only because of the representations. The Court should not accept that the Plaintiff would have refused the deceased’s requests for assistance in circumstances where that assistance did not cause the Plaintiff any material detriment.

The Defendants’ counsel then submitted that the assistance that the Plaintiff provided may have been an inconvenience, but that does not qualify as material detriment, particularly in circumstances where the Plaintiff enjoyed spending time with the deceased, described themselves as “friends forever” (T102.01-102.20), and where he said that, from his point of view, she was like a mother to him. In those circumstances, the Court should not find that the statements allegedly made to the Plaintiff were the cause, or even a significant contributing cause, of his decision to provide assistance to the deceased. Rather, the Court should accept the Plaintiff’s evidence that he helped her because she needed it and because of the closeness of their relationship. This is demonstrated by the Plaintiff having given evidence that if the deceased had told him she was leaving him nothing, he “still would have to have helped her”: T103.25. Yet, he maintained that the statements were a factor in the extent of care and assistance. He did not state that he would have provided the same level of care and assistance to the deceased (which he described as “a nightmare”: T103.15) in the absence of the expectation he had been encouraged to hold.

Applying this principle, minor expenditure does not qualify as material detriment. Likewise, in a domestic context, the detriment must extend beyond what would ordinarily be attributable to natural love and affection: Evans v Braddock at [231], [257].

There is no evidence that the Plaintiff paid any significant amounts of money to assist the deceased. Whilst he did spend time with the deceased, the mere expenditure of time should not necessarily qualify as detriment, particularly in circumstances where the time is spent with an elderly friend.

The Defendants argued that the relief sought is disproportionate to the detriment allegedly suffered. As stated above, the detriment suffered by the Plaintiff is, if anything, minor. The relief that he seeks is the whole estate of the deceased or, alternatively, the Undine Street property. The deceased’s estate is worth about $2.7 million, and the Undine Street property is worth about $2.3 million. Good conscience does not require that the Plaintiff receive assets of this value for the services that he performed for the deceased.

The Plaintiff’s counsel argued in answer to the last submission of the Defendants that, as the deceased’s estate was left to persons who have not asserted any competing equities in the property (or any other form of injustice), the appropriate remedy is an order that the deceased’s estate be transferred to the Plaintiff.

On the issue of equitable compensation, senior counsel for the Plaintiff submitted that the evidence established that the deceased wished to remain living at home, rather than going into a nursing home; that the care the Plaintiff provided to the deceased was instrumental in allowing her to stay living at home; and that if the Undine Street property had been sold at the point at which she had entered a nursing home, the estate property would not have been worth its value at the date of hearing: T245.32 – T245.40. He submitted that (at T245.44 – T245.47):

Yet, he did not point to any evidence as to the value of the Undine Street property at any relevant time.

Counsel for the Defendants argued that equitable compensation would only be relevant if the Plaintiff was successful in his claim for equitable estoppel. And even then, there would still be a question of assessment, and in that respect, if the Plaintiff, for example, were claiming the amount of money he spent on groceries, he would need to provide some evidence of what had been spent. He added that the Plaintiff accepted he had documents available to him that would have permitted him to make such a calculation, at least in rough terms, but that the documents had not been produced or the calculations done: T106.33.

The Defendants contended that there is a difference between cases where a plaintiff cannot adduce precise evidence of what has been lost, and cases where a plaintiff, although able to do so, has not done so: Placer (Granny Smith) Pty Ltd v Theiss Contractors (2003) 196 ALR 257 at [37] - [38]. In the present case, case, the Plaintiff could have adduced evidence of the costs and expenses that were not reimbursed. He had not done so. In those circumstances, he had not discharged his burden of proof to prove any loss suffered.

Counsel for the Defendants submitted that the Court should also reject the Plaintiff’s claims because he delayed in notifying the executors of his claims and had caused the executors some prejudice in doing so. The Defendants relied upon the defences of laches, Anshun estoppel and abuse of process.

The Defendants argued that the delay by the Plaintiff to bring the claim caused them unreasonable delay and prejudice, which delay and prejudice was both substantial. It was not merely the expense of the probate proceedings and the costs incurred by Mr Barnett’s family, which total more than $100,000. The prejudice was also the considerable amount of time that the executors spent prosecuting the probate litigation and the time that Mr Barnett spent organising the sale of the Undine Street property.

In those circumstances, the defence of laches is of particular relevance to the claim for equitable compensation. If the Court were otherwise inclined to make an order for equitable compensation, it should take into account the financial loss caused to the estate by the Plaintiff’s conduct.

The Defendants argued that the claims made in these proceedings were so connected with the subject matter of the probate proceedings, that it was unreasonable of the Plaintiff not to make the claims in the probate proceedings. In this regard, it should be remembered that the Plaintiff relied on one affidavit made in the Probate proceedings. His evidence dealt with critical events in these proceedings, namely the meeting attended by the deceased, the Plaintiff and Mr Mattick. Once the Plaintiff put evidence on concerning that meeting, it was unreasonable for him not to make all claims in the probate proceedings that he alleges arose out of the conduct of the deceased at that meeting.

It was submitted that in these circumstances, it was an abuse of process for the Plaintiff to allow the probate proceedings to continue without notifying the executors named in the 2003 Will that the evidence that he relied upon, and the matters that he raised, would also be used in separate proceedings that he had not yet commenced.

Further, the probate proceedings were, by reason of that evidence, so connected with the estoppel proceedings that it was unreasonable for the Plaintiff not to bring the estoppel claim in the probate proceedings.

It is appropriate, next, to make general findings as to the credibility and the reliability of the evidence of the witnesses. As stated earlier, there are no contemporaneous written records of the Plaintiff that record, summarise, or even mention, any conversation, between the deceased and him, and which relate to her leaving the whole of her estate, or the Undine Street property, to him. The Plaintiff’s claim depends upon the Court accepting that he had accurately remembered the conversations that occurred, some of which were many years ago, and that he relied to his detriment, upon one or more of those conversations. Understandably, the evidence was tested, vigorously, during cross-examination.

The Court also had the opportunity to observe the Plaintiff closely whilst he was giving his evidence. I could not detect in his demeanour any deliberate attempt to fabricate his evidence, or an intention to mislead the court. However, having considered his affidavits and the oral evidence very carefully, I am of the view that his recollection, about some of the events, is unreliable, and that his affidavit evidence, particularly in relation to what occurred at the meeting with Mr Mattick and the deceased, at which he was present, was tailored, not necessarily intentionally, to what he perceived to be the best advantage for his case.

In addition, I have earlier referred to the duty of a witness to tell the truth, the whole truth, and nothing but the truth, and that the obligation is the same when one is making an affidavit, or when one is giving evidence in the witness box. The Plaintiff, in my view, in his affidavits, did not comply with this obligation.

In coming to this conclusion, I do not conclude that the Plaintiff deliberately attempted to mislead the court. Rather, I consider that there was clearly a very strong emotional overlay to the Plaintiff’s case, and that he has a belief in his cause and what he sees as an entitlement to be reimbursed for what he did for the deceased. That there was earlier litigation, which was conducted with the same vigour as was these proceedings, did not help, as is obvious from the following passage taken from the Plaintiff’s oral evidence at T85.09 – T85.23 and at T90.43 – T90.47:

Those matters have affected some of the evidence given by him. At least in part, I have come to the view that he was seeking to make good a sense of disappointed hope.

That these conclusions are not too harsh is demonstrated by, at least, the following aspects of that evidence. (I have not repeated a number of the Defendant’s submissions criticising the evidence of the Plaintiff, particularly the submission pointing to the evidence of exaggeration.)

There was really not very much cross-examination of any of the Defendants and I am satisfied that the evidence of each is truthful and accurate and should be accepted.

Mr Barnett agreed that the deceased could be “sometimes irascible” in that she wanted things done in a particular way. He agreed that his involvement with the deceased “was tied to being her …Attorney” and that whilst what he did for her “dropped off”, he continued to do things for her after 2008 or 2009 and until 2013: T155 – T156. He acknowledged that he had only been to her home two or three times after 2008.

Mr Gillis acknowledged that he had refused any offer made by the deceased to be a devisee named in the deceased’s Will. He acknowledged that he had never visited the deceased at her home, and accepted that although his relationship with her started as a professional one, it developed into “I suppose one could call it a social relationship”: T147.07 – T147.11.

In relation to the complaint made against the Plaintiff relating to the failure to make the estoppel claim until after the Probate proceedings were determined, Mr Gillis stated that whilst it was probably true that whether the 2003 Will was the last valid Will of the deceased would have to be determined, “at a particular point of time, one would be looking to see whether there was (sic) any assets in the estate, had the estoppel point succeed. If there were no assets in the estate, I wouldn't be seeking advice, but I would be inclined not to make an application for probate over an estate that's worth nothing”: T149.03 – T149.09.

Mr Gillis stated that whilst he had seen evidence going to the deceased’s contact with solicitors after 2003, he had not known that she had done so prior to her death, but had known about it at the time of the Probate proceedings.

Mr Gillis too, stated that his personal view was that the estoppel claim should have been determined so that the Defendants would know whether there was anything in the estate that would need to be administered.

Mr Hiscox denied that there was any document in his possession, given to him by the deceased, or prepared by him upon instructions from the deceased. Indeed, despite numerous searches made by the Plaintiff, no document has been located. He also denied having any conversation with the Plaintiff in which he made any reference to the deceased “having left everything to you”. Indeed, Mr Hiscox gave evidence that the deceased had told him that she did not want to leave her estate to the Plaintiff (and that she provided her reasons). It was not put to Mr Hiscox that his evidence on this topic was false.

Mr Hiscox was asked about the summary of cheques which formed part of a schedule of the deceased’s cheques that had been summarised. Having heard the cross-examination and seen the schedule, with three amendments made during his evidence in chief, I am satisfied that it accurately records the contents of the cheques referred to.

Ms Blacket acknowledged that she did not think that she had ever visited the deceased when in hospital although she “may have” contacted the hospital. Her contact with the deceased was limited to visiting her 10 to 12 times over a period of more than a decade, “spoke to her a few times, took her groceries a couple of times, and took her something on her birthday in 2015 because my father was away”: T135.07 – T135.18.

She was aware that the deceased had told the Plaintiff that Ms Blacket could have the deceased’s Daimler car on death and that she could also have the deceased’s Macquarie Bank shares.

Ms Blacket gave evidence in her affidavit that the Plaintiff had told her that the deceased said that he “would receive the house or a share of her estate upon her passing”. When cross-examined about the conversation repeated to her by her father, she said that the passage quoted should refer to “and/or”, but then changed that to “She said to him that he would get the house”: T137.00 – T137.24.

She also said that the deceased had told her he would get “different things, like a model boat on…the fireplace, bits and pieces around the house, you know”. She also seemed to say that she heard the deceased say that he would get the house (which was inconsistent with what had been written in her affidavit), but when this was clarified by senior counsel for the Plaintiff in re-examination, the conversation that Ms Blacket said that she heard was “something along the lines ‘when you have the house, when you’, it was implied that he would be getting the house. It was very obviously implied”: T139.50 – T140.04.

I am of the view, having heard and seen Ms Blacket, that she was doing her best to assist the Plaintiff, and that her involvement with the deceased, and her recollection of events, was based more upon what he had said to her, than what the deceased had said directly to her.

Mrs Blacket was only able to give evidence of what the Plaintiff had told her that the deceased had said. She did not assert that she had been present at any conversation with the deceased involving the events the subject of the Plaintiff’s claims in these proceedings.

When asked about the circumstances regarding the handing over of the Certificate of Title, Mrs Blacket thought that her husband’s assistance with the sale of the Undine Street property had occurred much earlier. Whilst there may have been an earlier occasion when there had been discussions between the deceased and the Plaintiff about the sale, I am satisfied, on the balance of probabilities, that it was only in about 2010 or 2011, and not many years earlier (as stated by Mrs Blacket), at or about the time of the deceased asked the Plaintiff to assist in the sale, that the Certificate of Title was handed to the Plaintiff by the deceased.

Mrs Blacket described the relationship between the Plaintiff and the deceased by 2010, “it was more than a friendship really”: T143.22 – T143.24.

Like her daughter, I am of the view, having heard and seen Mrs Blacket, that she was doing her best to assist the Plaintiff, and that her involvement with the deceased, and her recollection of events, was based more upon what he had said to her, than anything else.

I am satisfied that Dr Grimsdale was doing the best that she could to remember the events about which she was asked. However, it is clear that there were matters which, no doubt because she had been a busy medical practitioner, and as the events occurred several years ago, that she had forgotten or misremembered.

By way of example, whilst she did remember that the deceased “maybe on one occasion” earlier than in the last year of her life, had told her that the deceased was very upset with the Plaintiff, she had not noticed that the deceased had repeated that statement or that it had been reflected in a home consultation on 19 December 2014 and in her notes of 5 March 2015: T126.15 – T127.07; T128.00 - T128.26.

Dr Grimsdale's knowledge of the assistance that the deceased received from other people is also limited. In Paragraph 18 of her affidavit, she wrote that she was not aware of anyone, other than the Plaintiff, involved in the deceased's personal care during the last three or four years of her life. In fact, Dr Grimsdale did not see the deceased at all for 13 months in that period, from 26 October 2012 until 26 November 2013 (T123.6 - T123.10). In any event, the documents reveal that Dr Grimsdale was aware of other persons assisting the deceased. For example, she wrote two letters, one on 27 February 2012, and the other on 28 August 2012, referring to the assistance the deceased was receiving from friends and neighbours (Ex. 4).

Dr Grimsdale received a letter referring to a meeting between the deceased's doctors and Mr Hiscox and the regular contact she had with him and with the Plaintiff (Ex. A2/205).

She also said that she was unaware of Mr Hiscox’s role in the deceased’s life, despite there being a reference to him in a number of documents within her file and despite Mr Hiscox having attended her surgery on 30 March 2015 to collect the key to the deceased’s home on 30 March 2015: T127 – T128.

Although I have identified Dr Grimsdale’s reference to the deceased saying to her that she wished to make provision for the Plaintiff, she had not recorded any such conversation in her notes, because “it was not about her health”: T129.35. Nor did she regard any statements made by the deceased to her regarding leaving the car to her, as promises by the deceased to do so because “she would say one thing on one occasion and a different thing on another occasion to me about the car”: T129.46 – T130.03.

There can be little doubt, when one reads the whole of the documentary evidence, that the Plaintiff played a role in the life of the deceased from about 2011. That role increased, at times, particularly as the deceased’s needs for support increased. This does not mean, however, that he “was managing Yvonne’s affairs” (as asserted in correspondence from his solicitor). There is also little doubt, in my view, that the deceased remained an extremely independent, and at times, strong willed person.

Considering the evidence of a number of different witnesses, I am also of the view that the deceased did reveal to the Plaintiff, at different times, her testamentary intentions. However, it is not possible to conclude, even on the balance of probabilities, what precisely was said to him, as there are different, and at times, competing versions of what she said to him.

In this regard, and by way of example, I refer to what the Plaintiff reported to Ms Blacket in regard to what was said and the way in which the Plaintiff has presented the case – either that the whole estate, or the Undine Street property, would pass to the Plaintiff. That the case was put in this way demonstrates that the Plaintiff himself, is unsure of what he understood was the clearly articulated promise, or assurance, made to him by the deceased.

That there exists this difficulty is also demonstrated by the following submission made on behalf of the Plaintiff:

Even on the Plaintiff’s own evidence, the deceased made no such promise or gave no such assurance, even if she referred, on occasions, to the Undine Street property.

The fact that the suggestion of a promise made, or assurance given, by the deceased did not find its way into any correspondence, or the affidavit of the Plaintiff, before 16 months after the date of the deceased’s death, is also very troubling. Even if the Probate suit was one that was required to be dealt with first, that would not have prevented the Plaintiff disclosing the nature of the promises said to have been made, or the assurances said to have been given, well before the date on which the matter was disclosed.

That there is a reference to “…an estoppel argument based on testamentary promises made to you by Yvonne” in the Plaintiff’s solicitor’s records does not assist the Plaintiff, since there is no other evidence of the Plaintiff’s instructions given that led to the reference being included.

If that is not enough, to my mind, any assumption held by the Plaintiff regarding anything that the deceased is said to have caused, as a result of a promise made, or an assurance given, that the whole of the deceased’s estate, or for that matter, the Undine Street property, would pass to the Plaintiff, was unreasonable and unjustified. The words, relied upon, even if spoken, appear to have been no more than a statement of the deceased’s intention. What was being spoken of was an intention to leave property by a will, an intention that the Plaintiff, must have appreciated was one that was not final, or one and that could change over time.

In May 2012, Mr Sharpe, solicitor, sent the deceased a draft Will which he had prepared on her instructions. That document is said to have appointed the Plaintiff the sole executor and left her entire estate to the Plaintiff. However, the deceased refused to sign that draft Will stating that she did not wish to do so on the evening arranged for Mr Sharpe to attend upon her. The Plaintiff was well aware that the deceased had never signed the Will that Mr Sharpe had made: T46.30 – T46.33.

The Plaintiff’s case also relied very much on what was said to be the statement of the deceased to Mr Mattick in 2014. Leaving aside the difficulty believing that the Plaintiff only heard the part of the deceased’s conversation with Mr Mattick that supported his case, I am satisfied that when Mr Mattick asked the deceased if she needed a Will done straight away, she responded “look I just need to think about it first and I will let you know”.

And importantly, the Plaintiff did not refer to Mr Mattick going on to express to the deceased the importance of trying to have the Will done as soon as possible and the risks she faced if she did not and if something happened to her. Even then, she said that she was not ready to do it that day.

Even putting aside the difficulty of accepting the Plaintiff’s evidence, the statements made to Mr Mattick by the deceased, were effectively confirmed in the email from Mr Mattick, sent to the Plaintiff, on the day of his meeting with the deceased, in which it was clear that the deceased was not ready to make a Will in the terms stated to Mr Mattick. In that email, he repeated, in writing, to the Plaintiff, that “I also note that Yvonne is to come back to me regarding her will”. As the Plaintiff put it, “I didn’t expect it to happen overnight. I didn’t expect it to happen that week. I thought it may happen in the future”:T75.44 – T75.49. The words highlighted demonstrate that any belief that the Plaintiff then held, did not go beyond a mere hope that the deceased would make a Will providing for him.

Like many cases in this area, this is one where what is alleged as having been a promise made, or assurance given, has not been recorded in writing. To the extent that it is said that there is writing, evidenced by what the deceased told one, or other of the solicitors who recorded what she said, it is tolerably plain what the deceased said, was not intended to be final, or binding, as more than once she was not prepared to sign any Will reflecting what she said. Her conduct demonstrated no desire to complete, or accelerate, the will-making process, even when a draft Will was made for her (by Mr Sharpe), or when a solicitor (Mr Mattick) stressed to her the importance of making a Will. These matters demonstrate that she was ambivalent about making a Will in favour of the Plaintiff, something about which he was well aware.

There are no circumstances revealed by the Plaintiff that, in my view, could lead to the conclusion that the words said to have been spoken by the deceased at any time, were tantamount to an irrevocable promise or irrevocable assurance upon which the Plaintiff could reasonably rely. To make that finding would be to ignore the deceased’s refusal, on at least two different occasions, with two different solicitors, to sign such a Will, which refusal, on each occasion, was known to the Plaintiff. In the circumstances, I am unable to find that the Plaintiff’s conduct, if he did rely upon the words said to constitute the promise made, or the assurance given, was reasonable.

Furthermore, the documents to which I have referred reveal that the Plaintiff’s actions, thereafter, were not any different because he had that knowledge. Even though the Plaintiff does not have to establish that he would have acted differently if the deceased had not encouraged his assumption and belief, he has not, to my mind, established that he was influenced, in a significant or material way, such that it was a contributing cause to his conduct, or that it made a difference to his conduct, thereafter, so that it would be unconscionable to permit the deceased to resile from any such promise made, or assurance given.

His actions were no different when he came to know that the deceased had not made any Will with Mr Sharpe in the terms asserted, or when he came to know that she was not going to make a Will with Mr Mattick, after he received the email from Mr Mattick. At no time did the Plaintiff refuse to provide assistance to the deceased.

Even if I am wrong, and if the deceased did make a promise, or did give an assurance, that the whole of the estate would pass to the Plaintiff, or that the Undine Street property would be devised to him, upon which he could reasonably rely, a question would still arise whether the Plaintiff needed to establish that he assumed that the deceased was not free to withdraw that promise made or assurance given: EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172, at [231] - [267] (White J). It is highly unlikely that the Plaintiff did not know of the freedom of testation and that a promise to leave property by Will is always subject to someone changing the Will.

Even if he did not, the deceased’s conduct in not being prepared to sign any Will, to the knowledge of the Plaintiff, was not an uncommunicated change of position by her. Nor can it be concluded that any promise was made, or an assurance was given, on the basis that it was to be implied that it was irrevocable.

I also find that the Plaintiff encouraged the deceased to make a Will, which would, at least, reflect her testamentary intentions until revoked or altered, and he knew that, despite that encouragement, she was not prepared to do, and had not done, so. The Plaintiff did not give any evidence that he had assumed that had she done so, or that she was not free to withdraw any promise made, or assurance given to him. To the contrary, the evidence, overall, reveals that the Plaintiff must have known that she could do so.

If all of those matters were not enough, looked at objectively, what the Plaintiff did for the deceased, was equally consistent with the possibility that he acted out of genuine affection and a real concern for her welfare. Certainly, that is what he told Mrs Blacket. It may even have been to improve the prospects that she would sign a Will and that any Will she did sign would provide for him. That he would not have engaged, from the outset, and over the following years, in the acts of detrimental reliance to which he referred, if he had known that the deceased would not act in accordance with what she had said to him, is contrary to the evidence.

Then, turning to detriment, the statement made by Gageler J in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [150], that the detriment or harm required to ground an estoppel can be any material disadvantage but such material disadvantage must be substantial, although it need not be quantifiable in the same way as an order of damages, which was repeated in Ashton v Pratt at [147] (Bathurst CJ) is to be remembered.

All things being considered in the present case, any expenditure by the Plaintiff that was not reimbursed by her was not substantial and does not establish the detriment required to ground a proprietary estoppel. Even if it were, it would not give rise to the Plaintiff receiving the whole of the deceased’s estate, or the Undine Street property, the value of each of which exceeds $2 million.

In my view, even if the Plaintiff had established all of the other matters, he has failed to establish that he suffered any substantial detriment as a result of the deceased resiling from any promise said to have been made, or assurance said to have been given, such as to give rise to the relief claimed. This is a case, in which to grant the relief sought by the Plaintiff would be disproportionately greater than any detriment that he sustained. Good conscience could not reasonably be seen to preclude a departure from what he asserts is the assumed state of affairs. The onus lay with the Plaintiff to prove the detriment that he alleges that he suffered. In my view, he has not done so.

In summary then, I am not satisfied, on the balance of probabilities, that the Plaintiff has established that:

Accordingly, I do not consider the elements of equitable estoppel are established. This aspect of the Plaintiff’s claim fails.

In the alternative to a proprietary interest in the whole of the deceased’s estate, or in the Undine Street property, the Plaintiff claimed equitable compensation.

Equitable compensation would be an alternative remedy to the transfer of the property said to have been the subject of the promise made, or the assurance given.

In all the circumstances, and for essentially the same reasons, I am not satisfied that the Plaintiff is entitled to any equitable compensation.

Whilst I am of the view that the claim brought by the Plaintiff in these proceedings, should have been identified to the Defendants and their legal representatives much earlier than it was, taking into account all the circumstances of the case, I am unable to conclude that it was unreasonable for the Plaintiff not to have brought proceedings, by way of Cross-Claim in the Probate proceedings for the following reasons.

Firstly, there were no legal representatives of the deceased’s estate, the Probate proceedings being proceedings to determine the validity of the 2003 Will.

In my opinion, the Plaintiff was entitled to wait until the Court determined the validity of the 2003 Will in order to decide whether, and in what manner, he would seek to make the claim based upon the promises said to have been made, or assurances said to have been given.

Only some of the facts that have been adverted to in these proceedings would have been relevant in the Probate proceedings. Those facts would have included the testamentary intentions of the deceased.

Secondly, Mr Basha has provided the reason why the Plaintiff did not raise the claim by way of Cross-Claim, a matter upon which he was not cross-examined. The Plaintiff was entitled to rely upon the legal advice given to him.

Thirdly, there can be no question that these proceedings would give rise to a judgment that conflicts with the orders made, albeit, in effect, consensually, in the Probate proceedings. The Probate proceedings determined the last valid Will of the deceased, not how the property, or some of it, which formed her estate was to be held and distributed based upon a proprietary estoppel.

In any event, for reasons stated, the Plaintiff has not succeeded on establishing a proprietary estoppel. In the circumstances, it is unnecessary to deal further with the defences.

I order that the Plaintiff’s Statement of Claim be dismissed, with costs; and that the caveat lodged by the Plaintiff on the Undine Street property be removed within 7 days.