Saitannis v Katsolos

1. [1]

   The first plaintiff, Helen Saitannis, is one of three daughters of the defendant, Irene Katsolos. The second plaintiff, Louis Saitannis, is the husband of the first plaintiff.

2. [2]

   As the parties did at the hearing, I will, without meaning any disrespect, refer to the parties by their first names.

3. [3]

   As well as Helen and Louis, the following witnesses gave evidence in the plaintiffs' case. Peter Saitannis is the brother of Louis. Christine Saitannis is Louis' sister. Spiridoula Saitannis is Louis' mother. Theodoros Totsis is the husband of Christine and Louis' brother-in-law.

4. [4]

   The only witnesses in the defendant's case were Irene herself and one of her daughters, Anastasia Katsolos. Irene’s other daughter is Georgina, who did not give evidence.

5. [5]

   The parties served expert valuation reports in respect of the two properties that are relevant to these proceedings, but it was not necessary for those reports to be tendered or the experts called to give evidence as the parties agreed to the valuations that the Court should adopt for the purpose of these proceedings.

6. [6]

   The subject matter of the proceedings is a residential property at Georges Hall in this State that I will call the Georges Hall property. Irene is the sole registered proprietor of the Georges Hall property.

7. [7]

   By their statement of claim filed on 3 July 2020, the plaintiffs’ primary claim was for a declaration in the following terms:

8. [8]

   The plaintiffs originally claimed an additional order that Helen execute a transfer in registrable form of her right, title and interest in the Georges Hall property in favour of the plaintiffs within seven days of the making of the declaration. However, the plaintiffs did not press for that relief at the hearing.

9. [9]

   The plaintiffs sought in the alternative an order that Irene pay them equitable compensation and, in the further alternative, reasonable compensation for the benefit of services which the plaintiffs claimed they had performed and which Irene requested and freely accepted.

10. [10]

    The plaintiffs' claim was based upon an equitable proprietary estoppel by encouragement whereby they alleged that, in about mid-2009, Irene represented to the plaintiffs that, upon the plaintiffs paying to Anastasia the sum of $100,000, they would become the sole owners of the Georges Hall property, and Irene would relinquish any rights she held in respect of that property. The representation was said to be express and oral and made during a conversation between the plaintiffs and Irene that occurred at the Georges Hall property.

11. [11]

    The plaintiffs supported this claim by an allegation that, shortly after the representation was made, they advised Irene that they agreed to transfer $100,000 to Anastasia in exchange for the Georges Hall property, and that Irene further represented to them that in order to avoid incurring stamp duty, Irene would remain on the title and would give her legal interest in the property to the plaintiffs in her will, and that, although Irene's name would be on the title, the plaintiffs would be the true owners and would be beneficially entitled to the property. The plaintiffs claimed that the further representation was express and oral and was made during a conversation between the plaintiffs and Irene that occurred at a property in Macquarie Fields that was then owned by and was the home of the plaintiffs.

12. [12]

    The plaintiffs pleaded, as an alternative basis for the proprietary interest that they claimed in the Georges Hill property, that it was the result of a common intention constructive trust, although the plaintiffs relied upon the same factual circumstances to support that claim as formed the basis of their equitable proprietary estoppel claim.

13. [13]

    The plaintiffs claimed that, in reliance upon the representations, on about 14 October 2010, they completed the sale of their Macquarie Fields property, and on the same date they moved into the Georges Hall property and began residing there with their children. On about 20 October 2010, Helen transferred the sum of $100,000 to Anastasia.

14. [14]

    The plaintiffs claimed that, since about early 2010, they have paid all outgoings, bills and expenses associated with the Georges Hall property, and that during the period from mid-2009 to July 2020 the plaintiffs carried out, and caused to be carried out, renovations, works and repairs on the Georges Hall property. The plaintiffs claimed that Irene attended the property on various occasions during the period in which the renovations were being carried out and observed Louis carrying out the renovations, represented to the plaintiffs that they were the owners of the property, and encouraged the plaintiffs to continue the renovations.

15. [15]

    The plaintiffs alleged that on 18 January 2020, Irene resiled from the promises inherent in the representations, asserted that the plaintiffs had no interest or entitlement to the Georges Hall property, advised of her intention to move back into the property and begin residing there, and demanded that the plaintiffs vacate the property by 1 May 2020.

16. [16]

    This conduct, the plaintiffs alleged, involved unconscionable conduct on Irene's part, so that they are entitled to a declaration that Irene's interest in the property is held on constructive trust for the plaintiffs’ sole benefit. Alternatively, Irene is estopped from repudiating what the plaintiffs called the common intention and denying that the plaintiffs are the sole beneficial owners of the property.

17. [17]

    The plaintiffs pleaded, in the alternative to the primary declaration, that they sought equitable compensation for the loss they will suffer if they do not receive the beneficial ownership of the Georges Hall property and are ejected from possession of that property. In final submissions the plaintiffs valued the reasonable equitable compensation that they claimed at $800,000.

18. [18]

    In the further alternative, the plaintiffs pleaded a quantum meruit claim in respect of the renovations that they made to the property.

19. [19]

    Irene filed a further amended defence on 29 April 2021. Irene made some admissions and put the plaintiffs to proof of other matters, including the full extent of the renovations that the plaintiffs alleged that they carried out to the Georges Hall property.

20. [20]

    In par 8 of the further amended defence, Irene pleaded that she did not agree to the plaintiffs' allegation of reliance and added: "as agreeing to such transaction would create a great injustice to the defendant's 2 daughters Georgina and Anastasia, and finds it an insult and completely unjust to give a property away to one daughter and her husband that has never been on good terms with her, and that is valued over $1,000,000 for just $100,000. The said property is a property she and her late husband have worked for all their lives."

21. [21]

    Irene also pleaded a limitation defence that was not mentioned by her at the hearing, or relied upon in her final submissions.

22. [22]

    Irene's case at the hearing was that she did agree to allow the plaintiffs to live in the Georges Hall property for an indefinite period while they brought their young children up and so that they could save money to buy themselves a permanent home, because of not having to pay rent or the mortgage repayments for their Macquarie Fields home. Irene denied that she agreed that the plaintiffs would become the beneficial owners of the Georges Hall property upon payment of only $100,000. Irene accepted that the plaintiffs had paid Anastasia the sum of $100,000 out of the proceeds of sale of the Macquarie Fields property. However, it was Irene's case that the payment of the $100,000 was a long-term loan that Helen volunteered to make to Anastasia.

23. [23]

    It was accepted by the parties that, by hand-written letter dated 18 January 2020, Irene gave the plaintiffs notice to vacate the Georges Hall property by 1 May 2020.

24. [24]

    Irene filed a cross claim on 5 November 2020. The principal relief claimed by Irene was an order that she be granted possession of the Georges Hall property as well as ancillary relief necessary to implement the order for possession of the property.

25. [25]

    Irene also sought an order that the plaintiffs pay her a reasonable occupation fee in respect of the Georges Hall property from 2 May 2020 by way of mesne profits. Irene sought an order that the plaintiffs account to her for any rent collected by them in connection with the subletting of the granny flat attached to the property, but there was no evidence at the hearing that the granny flat had been sublet.

26. [26]

    As a separate claim, Irene claimed judgment for the sum of $24,500 plus interest in respect of a loan of $25,000 that she claimed she had made to the plaintiffs, of which only $500 had been repaid. As to this loan, the plaintiffs admitted that they received the loan but alleged that they had repaid a further amount of $1,500, in addition to the $500 accepted by Irene, as well as further unspecified repayments out of Helen’s account that were “facilitated” by Anastasia.

27. [27]

    At the hearing, the parties provided to the Court an agreed statement of issues in dispute that is consistent with the outline of the issues that I have set out above. The parties also provided to the Court an agreed chronology of significant events. It will assist in the explanation of these reasons if I set out the agreed chronology, as follows:

28. [28]

    The parties agreed that the value of the Macquarie Fields property as of 1 November 2021 was $825,000. The plaintiffs’ evidence was that the initial asking price for the Macquarie Fields property was about $400,000, but because of the difficulty that they had finding a buyer the property was ultimately sold for $350,000 in September 2010.

29. [29]

    The parties also agreed that the value of the Georges Hall property as of 1 June 2009 was $500,000. By around November or December 2021 the value of that property was $1,600,000. If the property had not been renovated by the plaintiffs, it would have had a value at that time of $1,500,000. Consequently, the effect of the renovations carried out by the plaintiffs has increased the value of the property by $100,000.

30. [30]

    A rental report was tendered by agreement between the parties so that, if the Court finds that Irene is entitled to an order that the plaintiffs pay her mesne profits from 2 May 2021, the appropriate rent to be used for the calculation of the amount payable will be agreed.

Overview of the dispute

1. [31]

   The key to the proper determination of this dispute is the realisation that both sides of the record have propounded a version of the arrangement that they entered into that is at the extreme of the range of available interpretations of events and is most suitable to their interests. In taking that course, they have ignored significant aspects of the evidence and the logical probabilities that flow from that evidence.

2. [32]

   As I have recorded above, the plaintiffs' version of the arrangement was that Irene represented to them that they would become immediate absolute beneficial owners of the Georges Hall property upon payment to Anastasia of $100,000, and that the reason they had to wait to obtain legal title to the property by way of a gift under Irene's will was that Irene suggested that this arrangement would save stamp duty that would otherwise be payable on an immediate transfer.

3. [33]

   Irene, on the other hand, claimed that the arrangement was limited to possession being given to the plaintiffs for an indefinite period to enable them to live and raise their children in more comfort and closer to their relatives than they could enjoy living in their Macquarie Fields home, and so that, as a result of not being required to pay a mortgage or rent, they could save money to buy their own home. The period during which the plaintiffs could enjoy possession of the Georges Hall property was entirely indefinite, but appeared to be linked to the plaintiffs' young children being cared for and growing older and the plaintiffs' finances improving to the stage where they could afford to buy a suitable new home in reasonable financial comfort.

4. [34]

   I make the preliminary observation that the plaintiffs pleaded, and their evidentiary case was, that the arrangement with Irene was made during two separate conversations, much as might have happened had the arrangement been an arm's-length agreement between strangers. I find that to be an improbable scenario, given Helen's acceptance of Irene's evidence that Helen and Irene had a close relationship as mother and daughter. Irene gave credible evidence that, after the death of Nicholas, she travelled to Helen's home frequently to help her care for her children, particularly during Helen's pregnancies. It is much more likely that whatever the terms of the arrangement were, they were discussed between Helen and Irene on numerous occasions. Irene's evidence of conversations with Helen on the subject of whether Helen and Louis should sell the Macquarie Fields home was (T 186.28-186.39):

5. [35]

   Realistically, it is probable that the arrangement was discussed many times and evolved over time. As I said in a similar case, Spink v Flourentzou [2019] NSWSC 256 (affirmed on appeal in Flourentzou v Spink [2019] NSWCA 315):

6. [36]

   In these circumstances, the following considerations, as stated by Hallen J in Evans v Braddock [2015] NSWSC 249, and accepted by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [76], and by me in Meshumar v Otmy (2018) 97 NSWLR 615 at 623-5; [2018] NSWSC 125 at [41] and Perry v Perry [2021] NSWSC 1669 at [154] apply:

7. [37]

   In cases such as the present, the Court is much more likely to be assisted by an analysis of the objective evidence of what was done in carrying out a family arrangement and what the probabilities suggest the true arrangement between the parties was, than it is to try to decide who is the winner on the balance of probabilities in a contest to convince the Court that relevant conversations had one specific content rather than the content propounded by the opposing party.

Irene’s case

1. [38]

   It will be convenient to consider first the probability that the arrangement between Irene and the plaintiffs was in the terms propounded by Irene. I consider it to be most improbable that the arrangement was limited to the narrow terms claimed by Irene.

2. [39]

   I should first state my findings concerning the credibility of the evidence given by Irene. At the time she gave evidence, Irene was 78 years of age and described herself as an old, tired woman. Irene is a native Greek speaker and gave her evidence through an interpreter who was, I should record, an extraordinarily competent one. Irene has been living in Australia, however, for many years, and has a limited capacity to speak and understand English. Consequently, Irene could understand parts of the questions that were asked of her in cross-examination, and she frequently could not resist giving answers in English in competition with the interpreter. It appeared to me that in taking this course, Irene frequently did not understand the nuances of the questions that she was being asked, and her precipitate responses in English denied her the benefit of careful translation by the interpreter.

3. [40]

   Irene was understandably highly emotional during her cross-examination, and she was clearly under nervous strain. I am satisfied that Irene was a generally honest witness, at least in the sense of giving her evidence in accordance with her real perceptions and recollections. However, it became clear that those perceptions and recollections were not always reliable. Furthermore, Irene was not, with respect, intellectually sophisticated and on a number of occasions she gave explanations or responses that were quite illogical. In the circumstances, I have not thought it necessary to reject Irene's evidence generally, but it has been necessary to treat it with considerable caution.

4. [41]

   Many aspects of Irene's evidence rang true, particularly when she was recounting the more prosaic aspects of her dealings with the plaintiffs. I have set out above part of the defence pleaded by Irene to par 8 of the plaintiffs' statement of claim. I repeat that Irene pleaded that she "finds it an insult and completely unjust to give a property away to one daughter and her husband" which would create "a great injustice" to Anastasia and Georgina. It is highly likely that Irene has responded in her own mind to the claims now made by the plaintiffs in a way that has coloured her recollection of events in a way that is supportive of her present case.

5. [42]

   Anastasia appeared to give her evidence in a satisfactory way, although the circumstance that her evidence was given by audio-visual means limited the Court's capacity to assess the credibility of her evidence by reference to her demeanour. The plaintiffs made complex submissions as to why the Court should not accept Anastasia as a witness of truth, by reason of various objective matters that were said to be inconsistent with the evidence that she gave. I do not think it is necessary to attempt to rule on all the plaintiffs' submissions, as the evidence was not sufficiently distinct to make it safe for the Court to determine Anastasia's credibility as a witness on that basis. It is sufficient, however, for me to say that, as will be seen, I have not accepted the principal aspect of Anastasia's evidence, being that $100,000 paid to her by Helen was paid as a loan that Helen insisted upon making and Anastasia resisted.

6. [43]

   There are four principal reasons why I am unable to accept that the arrangement between the parties was on the terms propounded by Irene. The first is the objective fact that, having made a will on 4 December 2006 in which she left her estate to her three daughters in equal shares, on 23 January 2012 Irene made a will leaving the whole of her interest in the Georges Hall property to Helen. Given that the evidence clearly justifies a finding that Irene loved and cared for her three daughters equally, there must have been a special reason why Irene decided to leave the Georges Hall property solely to Helen. The only reason for such an extreme step that is available on the evidence is that the arrangement between the parties at least required that Irene take that step.

7. [44]

   Irene offered an improbable explanation for why she decided to leave the Georges Hall property solely to Helen: see par 206 of her primary affidavit and (T 129.24-131.9). That explanation was that her other two daughters' marriages had failed and they were divorced, which was a matter of considerable shame to Irene in the Greek community in which she lived. Irene believed from her interactions with the plaintiffs that there was a real risk that Louis would separate from and divorce Helen, which would have exacerbated Irene's shame. Irene said that she decided to leave the Georges Hall property to Helen as the belief on Louis's part that Helen would inherit a valuable property would reduce the risk that Irene would suffer the ignominy of having three divorced daughters. However, Irene insisted in cross-examination that she did not tell either Helen or Louis about the terms of her will, and she went so far as to say that it was normal for beneficiaries to learn of the terms of a will only when it was read after the death of the testator. Clearly, this explanation is completely illogical for the obvious reason that the terms of the will could not have reduced the risk that Louis would separate from Helen if neither Helen nor Louis knew of those terms.

8. [45]

   The second reason is the explanation given by Irene and Anastasia between them of the basis upon which Helen paid $100,000 into Anastasia's home loan account on 20 October 2010. Irene's evidence was that there was no discussion at all between her and the plaintiffs about the payment of $100,000 during the conversations that led to the arrangement between Irene and the plaintiffs. In her affidavit at pars 26-36, Anastasia claimed that Helen volunteered to lend the money to Anastasia, as Helen and Louis were moving into the Georges Hall property rent free. Anastasia claimed that she told Helen: "I am okay for money and I am managing my mortgage on my own." Helen responded: "I insist you take the money. It is not a gift; it is a loan and it's my money I saved for the deposit on the Macquarie Fields house." Anastasia claimed that she told Helen that when Helen was ready to buy her own home, Anastasia would reciprocate and give the $100,000 back.

9. [46]

   While this point is not as clear a reason for rejecting Irene's version of the arrangement as the previous one was, I consider that it is improbable that the $100,000 was paid for the reason claimed by Anastasia. It is also improbable that Helen did not discuss the payment of the $100,000 with Irene. The sale of the Macquarie Fields property took place on 14 October 2010 and the sale proceeds deposited into Helen's bank account were $108,213.85. The $100,000 was paid into Anastasia's home loan account six days later. It is likely that the transactions were related, as Helen and Louis moved into the Georges Hall property on 14 October 2010. It is also, in my view, highly improbable that Helen insisted that Anastasia accept a loan of $100,000, leaving Helen with $8,213.85, if the circumstances were that Anastasia said she did not need the money and it is likely that Helen and Louis would have benefited from retaining a contingency fund of over $100,000.

10. [47]

    The third reason why I am not prepared to accept Irene's version of the arrangement is that, according to her, a primary purpose of the arrangement was to enable Helen and Louis to save enough money to be able to buy their own home. However, Helen and Louis already had their own home at Macquarie Fields, which had, as it turned out, a market value of $350,000 and an equity of $108,213.85. Helen's evidence was that she was ahead in her mortgage repayments, and that because of renovations undertaken by Helen and Louis, the Macquarie Fields home was suitable for their purposes. This was an issue contested by Irene, who claimed that Helen had frequently complained about the inadequacy of the Macquarie Fields home for her expanding family, and that it was not in a salubrious location, given in particular that she was left at home at night because Louis worked night shifts.

11. [48]

    The objective evidence is not sufficient to enable the Court to decide with confidence what the true position was concerning the suitability of the Macquarie Fields home. The detail of the evidence is also not sufficient to persuade me that Helen and Louis would have considered the better course was for them to give up the existing home that they owned, pay almost all of the equity they had to Anastasia, and then move into the Georges Hall property with their children on the basis that that only gave them an indefinite right of possession.

12. [49]

    The fourth reason why I am not prepared to accept Irene's version of the arrangement arises out of the evidence given by Helen and Louis of the nature and extent of the renovations that they undertook on the Georges Hall property. Although the expert valuation evidence was that the renovations only added $100,000 to the value of the property as at the date of the hearing, it may be that the renovations cost more than that amount and that the cost does not include a considerable amount of labour undertaken by Louis. It is probably not possible on the evidence to determine an accurate cost of the renovation works, but I am satisfied that they are of a nature that is consistent with the expectation of the plaintiffs that they would at least be entitled to enjoy possession of the property with their family for a substantial, if not indefinite period. The renovations are consistent with the plaintiffs doing their best to make the Georges Hall property their family home.

13. [50]

    In her evidence, Irene consistently attempted to downgrade the significance and extent of the renovations, to claim that the renovations were unnecessary and carried out without her approval, and to assert that the major part of the renovations was undertaken behind her back and without her knowledge. I am satisfied from the evidence given by Helen and Louis, and the other members of their family who gave evidence, that Irene was aware of and approved at least a major part of the renovations. I do not think it is necessary to set this evidence out in detail. The evidence was episodic, which is understandable, because members of the family would only be present in the one place for special occasions. I am satisfied that Irene understood the significance of the renovations having been carried out to the plaintiffs' case, and this has caused her to understate her knowledge and approval of those renovations.

Helen and Louis’ case

1. [51]

   I now turn to consider the plaintiffs' case as to the terms of their arrangement with Irene. I should first say that I found the plaintiffs to be generally satisfactory witnesses, particularly in relation to their evidence concerning the objective historical facts. The position is not so clear in relation to their evidence of the representations that they say constituted their arrangement with Irene. I have no reason to find that the plaintiffs did not attempt to give honest evidence of their recollections of the conversations. However, I have already said that I am not prepared to accept that there were only two relevant conversations, at least as between Helen and Irene. It may well be that Louis was only present at a limited number of conversations at the end of the process of discussing the arrangement. The essential reason why I am sceptical about the accuracy of the plaintiffs’ summation of the conversations is the one that I have given above about the inherent uncertainty of recollection by interested parties in this context.

2. [52]

   I should add for completeness that there was no apparent reason for the Court not to accept the substance of the limited evidence given by the plaintiffs' other witnesses. That evidence primarily concerned Irene's knowledge and approval of the renovations of the Georges Hall property. I have explained above why I do not think it is necessary to examine that evidence in any detail.

3. [53]

   The plaintiffs' case as to the real terms of their arrangement with Irene also did not survive the hearing. When parties to family arrangements give evidence that the arrangements were made in a small number of precise conversations, it is, as I have observed above, probable that the evidence represents the parties' distillation of numerous conversations within the family concerning an important change to the family's affairs. When the evidence of the conversations is given succinctly with all commas and full stops in the right places, it is probable that the evidence represents the 'best' recollection that the parties can express in evidence – sometimes improved by careful professional assistance.

4. [54]

   As evidence in this form is likely to represent the best case the party giving the evidence can muster, it may be fair to hold the party to that evidence.

5. [55]

   Helen gave the following evidence concerning the making of what she called the representations in her primary affidavit:

6. [56]

   The evidence given by Louis in his primary affidavit was to the same effect, although understandably not in identical terms. I will only set out the most relevant parts of Louis's evidence of the conversations with Irene. The first conversation, set out in par 18 of Louis's affidavit, included:

7. [57]

   In relation to the second conversation, Louis's evidence in par 26 was in the following terms concerning the proposal that Irene would leave the Georges Hall property to the plaintiffs in her will:

8. [58]

   Perhaps the most significant feature of the evidence given by the plaintiffs concerning what Irene said she would do is that Irene did not say words that conveyed the meaning that the ownership of the Georges Hall property would be transferred immediately to the plaintiffs. In his evidence of the first conversation, Louis said that Irene said on three occasions, words to the effect of "then the house will be for the both of you", which is apt to describe an event that will occur in the future. In the second conversation, Louis said that Irene said: "I will make sure the house goes to the both of you." Helen's evidence of the conversation is more equivocal in that she said that Irene said on the first occasion: "and I will give you both the house". However, on the second occasion, according to Helen, Irene said: "Instead of transferring the house I will leave it to both of you in my Will."

9. [59]

   These observations are not conclusive as to the true effect of the plaintiffs' evidence concerning the statements they claim were made by Irene, but on balance they support a conclusion that what Irene was really offering was to leave the Georges Hall property to the plaintiffs in her will. That is not a satisfactory explanation of the whole of the arrangement, because the evidence makes clear that Irene gave the plaintiffs possession of the Georges Hall property from the time that they paid the $100,000 to Anastasia.

10. [60]

    The following observations may be made about the plaintiffs' evidence of these conversations. First, the suggestion is that Irene volunteered to give the plaintiffs the Georges Hall property in return only for a payment of $100,000 to Anastasia. As the agreed valuation evidence is that the property was worth $500,000 at the time, if this promise was made, it involved Irene making a gift of $400,000 to the plaintiffs.

11. [61]

    The plaintiffs’ evidence was that Irene volunteered this gift because she had already made gifts to Anastasia and Georgina, and her purpose was to even up her treatment of her three daughters. There was no evidence that Irene had made gifts to Anastasia and Georgina of an aggregate value anywhere near $400,000. The evidence did not make the position clear, although it appears that Irene permitted Georgina and her son to live in the granny flat at the Georges Hall property from between about 1999 and 2010. It is inherently unlikely that Anastasia and Georgina would have agreed to Irene disinheriting them by bequeathing her only substantial asset solely to the plaintiffs.

12. [62]

    Having received evidence from Irene concerning her personal history, and having had the benefit of observing her during a lengthy cross-examination, I find that it is extremely doubtful that Irene would have suggested that she transfer the Georges Hall property to the plaintiffs by will in order to avoid the payment of stamp duty. I note that while it was Helen's evidence that Irene raised the issue of avoiding stamp duty, Louis's version of the second conversation was that he was the one who suggested that it would make sense to transfer the property by will as it would avoid the payment of stamp duty.

13. [63]

    The effect of the plaintiffs' case – that Irene represented to them that they would be the immediate, sole owners of the Georges Hall property – would, if true, be that a 64-year-old woman, who had lost her husband three years earlier, and who was pensioner, had voluntarily transferred the beneficial ownership of her only substantial asset in a way that made her homeless, and dependent upon the good will of Anastasia and Helen, as Georgina did not have the capacity to look after her mother.

14. [64]

    According to Irene's affidavit evidence, which was not contradicted, she came from a farming family in Greece, and in her youth worked very hard tilling the soil, picking grapes and digging. She left her village at the age of 18 to study English. She came to Australia on a ticket paid for by the Commonwealth government "with only a dress, a pair of shoes and my mum and dad's wise words." She studied hospitality in Greece and learnt enough English to survive before she came to Australia. She arrived in 1963. Irene gave evidence of an onerous migrant working existence in this country. Irene spent much of her working life working in cafés and restaurants.

15. [65]

    Irene and Nicholas purchased a property at East Hills. Irene's evidence was that they had a first mortgage charging 18% interest and a second mortgage at 22% interest. Irene said in par 51 of her affidavit of 28 May 2021:

16. [66]

    Irene and her husband sold the East Hills property in about 1978, which was the year in which the Georges Hall property was acquired for a price of $60,500. Irene gave evidence of the work done by Irene and Nicholas in renovating the property.

17. [67]

    Irene had a hip replacement on 26 November 2009 and was discharged from hospital six days later. She needed someone to assist her to do her day-to-day duties, so Anastasia offered to let Irene move into her home so she could provide Irene with full-time care.

18. [68]

    At the time of the conversations alleged by the plaintiffs, Irene was an ailing sixty-five-year-old widow who was still grieving her husband, who spoke only limited English, was unsophisticated in her commercial dealings, and, by reason of her ailments, she was dependent for care on one of her daughters.

19. [69]

    This case does not directly raise the issue of whether it would have involved unconscionable conduct on the plaintiffs' part if they had made an arrangement with Irene that they would receive immediate, absolute beneficial ownership and possession of the Georges Hall property for a payment of $100,000 to Anastasia and no payment to Irene. However, these considerations would be relevant to the determination of the relief that would be equitable for the Court to give to the plaintiffs against Irene, if the plaintiffs established that the arrangement was in the terms for which they contended.

20. [70]

    The proposition that the plaintiffs' version of the arrangement was that Irene had immediately divested herself of her only home and substantial asset for no reward, in circumstances that made her dependent for a roof over her head on the good will of her daughters, was so obviously problematic that counsel for Irene was moved to cross-examine Helen to suggest that those aspects of the alleged arrangement were so extreme as to require a rejection of the plaintiffs' claims. It will be appropriate to set out relevant parts of the cross-examination at length, as they contain a significant revelation for the purposes of the resolution of this dispute.

21. [71]

    First, at (T 21.9-21.20):

22. [72]

    Secondly, at (T 21.32-21.43):

23. [73]

    Thirdly, at (T 30.50-32.9):

24. [74]

    Fourthly, at (T 32.33-32.39):

25. [75]

    Fifthly, at (T 36.28-36.46):

26. [76]

    And finally, at (T 37.12-37.18):

27. [77]

    This evidence was apparently so inconsistent with Irene's case that counsel challenged Helen with the riposte (T 32.11 and 34.16) that there was nothing in Helen's affidavits about agreeing with Irene that she would move back into the Georges Hall property after the granny flat was renovated. Counsel suggested to Helen that her evidence was a reconstruction (T 33.35 and 37.20), and Helen's ultimate response was (T 37.10): "I may have forgotten. I’m human, I may have forgotten."

28. [78]

    The evidence that counsel elicited may not have suited Irene's case, but to my mind it was completely credible, and provides a rational basis for understanding the true arrangement between the plaintiffs and Irene. On the plaintiffs' case, they accepted an offer by Irene to give them the Georges Hall property worth $500,000 for a payment of $100,000 to Anastasia but nothing to Irene, and left Helen's aged and infirm mother homeless save for the good will of her daughters. The arrangement is much more explicable, and in good conscience, if the proposal was that the plaintiffs would renovate the granny flat and care for Irene while she lived in the granny flat for the balance of her life. If that were the arrangement, it would be more explicable why Irene would have considered it fair to her other daughters to leave the Georges Hall property solely to the plaintiffs in her will.

29. [79]

    Based on the whole of the evidence, I could not find that the plaintiffs have made out their case concerning the terms of the arrangement that they made with Irene, without adding the additional component that Helen disclosed for the first time in cross-examination.

30. [80]

    My judicial experience is that it is common for parties and their lawyers to propound relatively extreme versions of the cases that may be available to them, when a careful and sober consideration of the evidence and the probabilities would lead them to understand that the true legal position lies somewhere between the extremes propounded by the parties. In some cases, the adoption of mutual ambit positions may not lead to forensic disadvantage, but in other cases, the effect will be that the parties do not lead the evidence necessary to properly contest the middle ground where the just legal outcome of the case is likely to be found. In the present case, the parties remained in their chosen trenches throughout the hearing, and did not address in any meaningful way the reasons why what I have found to be the real arrangement between the plaintiffs and Irene was never implemented.

31. [81]

    Helen's evidence on the subject was the following snippet (T 34.20-34.36):

32. [82]

    Irene gave evidence in par 102 of her primary affidavit that she had a conversation with Helen in about June 2009 in which she said: “… I will let you move into [the Georges Hall property] temporarily provided that you provide full-time care for me in my house after I have my hip replacement in November 2009 and provided that you save money to buy another house to move into once the children grow up a little, these are my conditions, Helen". Irene claimed at the hearing that the plaintiffs’ occupation of the property was only to be temporary, but she did not prosecute a case that the arrangement was that the plaintiffs would care for her at the property in return for being allowed to occupy it as their home.

33. [83]

    Irene's evidence on the same subject in cross-examination was (T 162.14-162.39):

34. [84]

    This extract from the cross-examination demonstrates the difficulty experienced by the interpreter, the cross-examiner and the Court as a result of Irene answering questions in English that were required to be translated by the interpreter. There is an element of confusion in this cross-examination as to whether it concerns Helen moving into the Georges Hall property or Irene doing so. Irene appears to say, however, that Irene suggested that Helen could move into the Georges Hall property to provide full-time care to Irene, but Helen changed her mind all the time.

35. [85]

    If I am correct in my acceptance of the evidence given by Irene in her affidavit and by Helen unexpectedly in cross-examination that there was an expectation as between the plaintiffs and Irene that she would return to live in the granny flat at the Georges Hall property after it had been renovated, it must also be said that Irene did not give any positive or clear evidence as to why she did not take advantage of that part of the arrangement. There was no evidence that Irene complained that the plaintiffs were not performing their part of the arrangement until Irene delivered the letter on 18 January 2020 requiring the plaintiffs to vacate the Georges Hall property.

36. [86]

    It must be noted that it was Irene's evidence that her discussion with Helen concerning moving back into the Georges Hall property after she had her hip replacement was that it happened in June 2009. The operation was carried out in late 2009. That was the time when the plaintiffs put their Macquarie Fields property on the market for sale, but it took them the best part of a year to find a buyer at a reduced price. The plaintiffs continued to live in the Macquarie Fields property. Irene vacated the Georges Hall property in anticipation of her operation, and arrangements were made while she was in hospital for her to be able to live with Anastasia after her discharge from hospital. It appears that it was necessary for that arrangement to continue because the plaintiffs remained in their smaller home. It is a matter for speculation, but it is possible that Irene became settled in Anastasia's home and remained there through inertia. It would be wrong for the Court to make any positive finding about the reason why Irene did not return to the Georges Hall property to live in the granny flat, as the evidence shows that, when the plaintiffs moved into the property, they had four very young children, and Irene may have thought it would be intrusive and selfish for her to move in and expect to be cared for by the plaintiffs.

37. [87]

    Whatever the real reasons may have been that caused Irene to continue living with Anastasia rather than to move into the granny flat, on the evidence the plaintiffs were allowed by Irene to believe that they were performing the arrangement in a satisfactory way for almost 10 years until the delivery of the letter.

38. [88]

    The result has been that the parties did not in any meaningful way forensically examine the question of why Irene did not move back into the granny flat after it had been renovated, and why she remained indefinitely living with Anastasia, and being cared for by Anastasia. Irene did give evidence that she had a hip replacement in late 2009 (T 121.29), and a knee operation in 2013 that caused her terrible pain and that she acquired sleep apnoea (T 122.45), and that she also went to hospital for treatment for cancer (T 124.30) and she had other health issues. There was some background evidence that Irene did not have good personal relations with Louis, although Helen claimed that they had "a lovely relationship" (T 27.44).

39. [89]

    A result of the forensic choices made by the parties is that, while the Court finds that the arrangement as asserted by the plaintiffs is made whole by the addition of a mutual expectation that the plaintiffs would care for Irene for the balance of her life after she moved back into the granny flat, the Court cannot be confident of the precise nature of that arrangement, and cannot make any positive or comprehensive finding as to why the arrangement was not implemented.

40. [90]

    Whatever the true reason was, Irene did not move back into the granny flat and was not cared for by the plaintiffs. Rather, she continued to live with Anastasia and it was Anastasia that provided the care that she needed. Irene nonetheless implemented her part of the arrangement when she made her will on 23 January 2012. Time passed, and as it did so, the reasonableness of the Georges Hill property being left entirely to Helen, and being denied to Anastasia, and perhaps Georgina, became gradually less and less obvious. Eventually, Irene decided she wanted to move back into her long-time matrimonial home, so on 18 January 2020, Irene delivered to the plaintiffs her letter requiring them to vacate the Georges Hall property by 1 May 2020. Irene made her new will on 11 March 2020. Irene's evidence was (T 118.18) that when she sought to repossess her property she said: "I went there and I said, ‘I am healthy now and I want to go back home – I want to come back home’." Further (T 134.46): "I wanted – I just wanted to go home. I just want to go to my house. After all these years I was feeling better, and I – so, I told Anastasia I want you to take me there, and I gave them three months' notice, and I – in a nice way – in a Christian way." Finally (T 135.10): "And I just want to go home and be able to mourn my husband and mourn my – my – my – my life."

Consideration

1. [91]

   When members of families make arrangements, such as the arrangement the subject of these proceedings, they do not generally intend that they will be legally binding. It is not the force of law, but family loyalty and affection that is intended to bind the parties to the arrangement. They do not always think or talk in precise terms and there is often an inherent indefiniteness in the arrangement and a readiness to allow it to evolve. However, it is often a consequence of the way that the arrangements are implemented that fairness and good conscience require equity to intervene to provide a disappointed party to the arrangement with relief. Proceedings to enforce such arrangements will often involve an exceptional level of forensic risk because of the essential indefiniteness of the arrangement. That is often why the parties to such arrangements will be best served by responding to disagreements by making reasonable compromises.

2. [92]

   The parties to family arrangements do not, of course, think in terms of categories of equitable principle, such as common intention, joint endeavour, encouragement or standing by. In the present case, the plaintiffs have sought to portray the arrangement as being one involving a representation concerning the ownership of a property that has given rise to an equitable proprietary estoppel by reason of the plaintiffs having relied upon the representation in ways that will lead to their substantial detriment if Irene is permitted to resile from the promise implicit in her representation. As I have recorded above, the plaintiffs pleaded that there was a common intention between the parties, but the common intention alleged did not include that the plaintiffs would provide a benefit to Irene for her life by looking after her in the granny flat after it was renovated. I have found that the arrangement between the parties included that element. The boundaries of that element are indistinct because none of the parties embraced it in a positive way and it only emerged as a revelation in the evidence given by Helen, and, although the subject of evidence by Irene, it was not embraced as an important aspect of Irene’s case.

3. [93]

   There may be scope for argument as to how the arrangement between the parties should be analysed in terms of equitable principle. It should not be assumed that all such family arrangements will be capable of being analysed strictly in terms of representations, the creation of common intentions, or the pursuit of joint endeavours. It may be that some arrangements should be analysed in terms that have different features of these equitable conceptions at the one time. If the arrangement between the parties is best analysed in terms of representations, it would not be limited to representations made by Irene, but would include the representation made by the plaintiffs that they would make available the renovated granny flat for Irene's occupation and that they would allow her to live there and they would care for her for the rest of her life.

4. [94]

   The better approach may be, however, to consider the arrangement partly in terms of a joint endeavour that ultimately failed. Through that lens, the representation that constituted the plaintiffs’ part of the arrangement that involved Irene occupying the granny flat and being cared for by the plaintiffs was not implemented in fact. If the arrangement is viewed as a joint endeavour, it failed in the same respect. However, if the arrangement is analysed in terms of either equitable principle, by reason of the forensic approach adopted by the parties that I have explained above, the only finding available to the Court is that Irene did not receive that part of the arrangement that would have provided the primary benefit to her. The Court cannot make a finding as to the true reason for that outcome, and must proceed upon the basis that the arrangement was ultimately not implemented through no proved fault of the parties.

5. [95]

   Before I consider the equitable principles that should be applied to resolve this dispute, it will be appropriate to collect my findings concerning the terms of the arrangement made between the parties and the consequences of the parties implementing that arrangement, or not, as the case may be. I qualify the summary that I will give with the observation that the evidence does not permit precise findings concerning the terms of the arrangement and some aspects of the arrangement are less distinct than others because of the forensic approach taken by the parties to the hearing.

   1. (1)

      Irene gave the plaintiffs possession of the Georges Hall property on the basis that they and their children could make their home indefinitely in that property. Irene led the plaintiffs to believe that their tenure in the property was of sufficient probable duration to justify the plaintiffs in making the effort and incurring the expense necessary to make significant renovations to the property so that it would be appropriate for their use as a family home. It is not clear whether there was any definite arrangement as to the duration of the plaintiffs' occupation of the property. The better view is that Irene at least accepted that the occupation would continue during the younger childhood of the plaintiffs' four children and to a time when the plaintiffs could accumulate sufficient money to enable them to acquire a reasonably equivalent property in their own names. To the extent that this duration was considered, it was entirely indefinite. At the present time, the plaintiffs' oldest child is about 17 and the youngest child is about 13.

   2. (2)

      The evidence given by the plaintiffs as to the terms of the arrangement would support a finding that Irene agreed to leave the Georges Hall property to the plaintiffs in her will, which is something that Irene did on 23 January 2012. Wills are, however, inherently revocable, and it is not completely clear whether Irene's undertaking to leave the property to the plaintiffs was intended to be irrevocable or dependent upon the continuation of the provision by the plaintiffs to Irene of some expected benefit.

   3. (3)

      One aspect of the arrangement was that the plaintiffs would pay $100,000 to Anastasia, and that part of the arrangement was implemented.

   4. (4)

      It is more probable than not that an aspect of the arrangement was that, after the granny flat at the Georges Hall property had been renovated, Irene would return to the property to live there at her pleasure for the rest of her life. If that had happened, then the plaintiffs and their children would have cared for Irene and treated her as part of their family. This aspect of the arrangement was not implemented and the Court is not able to make definite findings as to why not. It may be that Irene did not initially want to suffer the inconvenience of relocating from Anastasia's house to the granny flat. Continuing and new ailments and disabilities may have influenced Irene's decision. It cannot be known whether changes in the family dynamics or the relationship between Irene and Louis influenced Irene's choice.

   5. (5)

      The part of the arrangement whereby Irene would return to live in the granny flat and be cared for indefinitely by the plaintiffs was nonetheless an important part of the arrangement, as without it the arrangement may have been unconscionable on the plaintiffs' part, by reason of the advantage that the plaintiffs would have taken of the vulnerabilities from which Irene was suffering at the time.

   6. (6)

      The plaintiffs' reliance on their arrangement with Irene caused them to suffer some costs and inconveniences and to forgo opportunities.

6. [96]

   Crucially, if Irene is permitted to resile entirely from the arrangement that she made with the plaintiffs and she is given the relief that she seeks in these proceedings, the plaintiffs and their children will be ‘out on the street’ with no recompense for their expenditures. There were other costs and savings that probably cancel out, given that the plaintiffs and their family have had the benefit of living in the Georges Hall property rent free from 2010 to the present day, subject of course to Irene's claim for an occupation fee from 2 May 2020. The plaintiffs have paid the rates and other charges for occupying the property, but these expenses were a condition of their occupation, and they would have been required to pay comparable amounts had they retained their Macquarie Fields property. The plaintiffs have not been required to pay rent or make mortgage repayments, but that was a factor inherent in the arrangement.

7. [97]

   These factors must be balanced against the detriment that Irene will suffer if a declaration is made that she holds the Georges Hall property on trust for the plaintiffs. The payment of the $100,000 to Anastasia must be treated as a benefit to Irene, because it was made at Irene's request. However, the Georges Hall property had a value of $500,000 at the time, so the implementation of the arrangement would involve Irene making a gift of $400,000 plaintiffs. In doing that, she would, at the age of 65, have given away her only substantial asset and the roof over her head. There was some evidence that as of 14 December 2017, Irene had a bank account with credit of $159,431. That evidence was tendered in the context of proving the $25,000 loan from Irene to the plaintiffs. There was no evidence that Irene had other assets of substantial value that she could use to provide a home for herself, or to provide inheritances to her other two daughters that would match the effect of the implementation of the arrangement as alleged by the plaintiffs. The consequence of Irene not returning to live in the granny flat at the Georges Hall property was that the obligation to provide a home to Irene was thrown upon Anastasia. The need for Anastasia to provide indefinite care to Irene followed from the requirement that Anastasia provide a home to Irene. So long as the plaintiffs retain their sole right to possession of the Georges Hall property, Irene will not have the wherewithal to provide a home for herself.

8. [98]

   The submissions made by the plaintiffs concerning the applicable legal principles assumed that the Court would find that Irene made representations to them that, if they paid $100,000 to Anastasia, she would treat the plaintiffs immediately as the real owners of the Georges Hall property and that they would become the legal owners by Irene leaving the property solely to the plaintiffs in her will. It was on that assumption that the plaintiffs submitted that the equity of the case justified the Court in making a declaration that fulfilled the expectation that Irene's representations caused the plaintiffs to have, and upon which relied in taking the steps that I have found above that they did take. The plaintiffs submitted that the detriment that they would suffer if Irene was permitted to resile from the representations was so substantial that the relief granted should realise the plaintiffs' expectations.

9. [99]

   The problem the plaintiffs' case faces is that the Court has found that the representations that the plaintiffs alleged were made by Irene have not entirely been proved. There is sufficient evidence to justify a finding that Irene represented that she would leave the Georges Hall property to the plaintiffs in her will, but the evidence does not justify a finding that she represented that the plaintiffs would be entitled to immediate ownership of the property. That is because there was a counter-representation made by the plaintiffs, or an expectation on Irene's part, which was an integral part of the family arrangement, being that Irene would move back into the Georges Hall property to live in the granny flat for as long as she wished, and that she would be cared for by the plaintiffs. Irene would continue to be the owner of the property until her death. The counter-representation or expectation was not implemented. That was through no proved fault of any party. The consequence is that Irene does not have her own home, and, as long as that is the case, the need to provide a home and care for Irene is thrust upon Anastasia. That outcome would turn a family arrangement that might otherwise have been equitable into an unconscionable one on the plaintiffs' part, at least to the extent that they pursue relief that would have the effect that they have the sole right to occupy the property to the exclusion of Irene. I do not think it matters whether that consequence is considered as a failure by the plaintiffs to implement the expectation that they created in Irene, or whether it is treated as a failure of a joint endeavour without fault of the parties.

10. [100]

    Unlike cases in contract where the Court enforces the promises made by the parties because those promises are enforceable as a matter of legal principle, in cases such as the present the Court moulds a remedy to suit the occasion, where the departure by a party from a representation made by the party would be unconscionable by reason of the detriment that the other party would suffer. The availability and nature of the relief is tied to the degree of unconscionability associated with the detriment that flows from the departure from the representation. There may be cases where, by reason of changes in circumstances with the passage of time, the degree of unconscionability may attenuate or disappear. In the present case, there was a degree of mutuality in the arrangement between the parties that the plaintiffs have ignored and Irene has not embraced. There was an issue at the hearing as to whether, with the passage of time, Anastasia became embittered by the preference shown by Irene to the plaintiffs, and whether she consequently undermined Irene's adherence to the arrangement propounded by the plaintiffs. All that need be said is that it is unsurprising, if Irene decided to prefer the plaintiffs because she would live with and be cared for by them, that Anastasia came to resent the arrangement as it fell to her to provide a home for and care for Irene.

11. [101]

    As equity is not inclined to let the loss lie where it falls, it is necessary to determine the relief that ought to be granted to do equity and justice between the parties. On the basis that their claim is that they have an equitable proprietary estoppel that entitles them to a declaration that Irene holds the Georges Hall property on trust for them, the plaintiffs relied upon the principles espoused by Brereton J (as his Honour then was) in Evans v Evans [2010] NSWSC 170. However, the submission focused only on the meaning of his Honour’s reasons insofar as they apply to the case where the representation upon which the claimant has relied was unqualified. It will be instructive to extract the relevant part of his Honour’s reasons in full, as follows:

12. [102]

    In the present case, I am satisfied that the evidence justifies findings in favour of the plaintiffs that would satisfy the requirements stated by Brereton J at [38]. However, that is not the end of the matter because the evidence requires a finding that the assumption or expectation that Irene encouraged the plaintiffs to adopt was not unqualified. There was a counter-assumption or expectation that, after the plaintiffs had renovated the granny flat, Irene would return to live there and be cared for by the plaintiffs for as long as she wished, putatively for the rest of her life. The difficulty I have faced in this case, which I have tried to explain above, is that the paucity of evidence has prevented the Court from confidently characterising the counter-assumption or expectation. The better view is that it did not have the effect of being a condition to the plaintiffs being entitled to act upon the assumption or expectation that Irene encouraged them to adopt. But there was, as it were, a quid pro quo, in that the plaintiffs were expected to earn the benefit of their assumption or expectation by in turn providing a benefit to Irene. As I have also said above, the evidence does not permit a reliable finding about why the plaintiffs did not provide the benefit to Irene, or why she did not insist upon it. Nonetheless, I am satisfied that when the evidence as to the nature of the arrangement is considered as a whole, the plaintiffs did not have a reasonable basis for expecting that they would definitely be entitled to enjoy the full measure of the assumption or expectation induced by Irene, even if they did not reciprocate by providing any of the benefit that Irene assumed or expected.

13. [103]

    This is a case where it will be necessary for equity to strike a fair and equitable balance, having regard to the extent that the plaintiffs will suffer detriment if Irene resiles from the assumption or expectation that she induced in the plaintiffs, to the fact that the plaintiffs have not been required to provide the benefit that Irene expected to receive, and to the reality that relief that will oblige Irene to implement the assumption or expectation induced in the plaintiffs will disproportionately disadvantage her by leaving her with nothing.

14. [104]

    This is a case where the following extract from the joint judgment of French CJ, Kiefel, Bell and Keane JJ in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 applies (footnotes omitted):

15. [105]

    Here, the circumstances appear to lie somewhere along the spectrum between a small, readily quantifiable monetary outlay and life-changing decisions with irreversible consequences contemplated by their Honours. The relief that is appropriate will require a careful balancing of the particular circumstances of this case.

16. [106]

    The indefiniteness of the evidence that I have described above raises the possibility that the preferable approach to determining the equitable principle that should be applied is not to think in terms of an assumption or expectation induced in the plaintiffs that was conditional or subject to a counter-assumption or expectation induced in Irene. The arrangement entailed Irene retaining ownership of the Georges Hall property, the plaintiffs agreeing to renovate the property including the granny flat, the plaintiffs selling their existing home and paying $100,000 to Anastasia, the plaintiffs living indefinitely in the property with their children, the plaintiffs paying the running costs of the property, Irene returning to live in the granny flat and being cared for indefinitely by the plaintiffs, and Irene leaving the property solely to the plaintiffs in her will. That being the case, it may be proper to view the arrangement as a joint endeavour that failed in part through no fault of the parties.

17. [107]

    In Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 at 618-620, Deane J said (footnotes omitted):

18. [108]

    This approach was approved in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 by Mason CJ, Wilson and Deane JJ at 147-148, as well in substance as by Toohey J at 152 and Gaudron J at 155.

19. [109]

    There may be some need to adjust the application of these principles in the present case to account for the fact that the arrangement may be analysed partly in terms of mutual representations as to future conduct, and partly as a joint endeavour that has partially failed. In my view, the determination of the equitable relief that should be granted in this case should not differ depending upon the approach that the Court prefers as to the equitable principles that should be applied to the resolution of the dispute.

20. [110]

    It is also necessary to bear in mind the following observation by the plurality in Baumgartner v Baumgartner at 150:

21. [111]

    During senior counsel for the plaintiffs’ oral submissions, I raised the possibility that the Court may make the finding – that I have in fact made – that the arrangement between the parties involved mutual representations that constituted a joint endeavour that has failed in part. That finding would lead to the possibility that some relief other than the primary relief sought by the plaintiffs was appropriate. One possibility was that the appropriate remedy was an order that Irene pay the plaintiffs equitable compensation for the detriment the plaintiffs would suffer if Irene departed from her representation that she would leave the Georges Hall property to the plaintiffs in her will. Another possibility is that the Court make an order that had the effect that Irene would be obliged to bequeath the property to the plaintiffs, but that they would have no right to continue in occupation of the Georges Hall property because Irene is not living in the granny flat and being cared for by the plaintiffs. Senior counsel responded by saying that the plaintiffs wished to reserve their right, if that were possible, to elect between remedies after the Court delivered these reasons for judgment.

22. [112]

    As it has happened, the parties have not had the opportunity to make submissions to the Court as to the precise terms of the relief that will be appropriate based on the findings that I have made in these reasons. I have to this point stopped short of formulating positive alternative orders that may be the subject of an election by the plaintiffs. It may well be that an order for payment of equitable compensation is the most appropriate form of relief. As I have said above, a quantum of equitable compensation of $800,000 would be justified in this case. The alternative, whereby the plaintiffs would have an entitlement to receive the Georges Hall property under Irene's will, but have no home or right to compensation until they gain title to the property, does not seem to be a convenient form of relief.

23. [113]

    Having regard to the request made by senior counsel, I propose to publish these reasons and give the parties an opportunity to confer and to deliver further written submissions on the form of the relief that should be granted, based upon the findings that have been made in these reasons. I do not know whether there remains any possibility for the parties to salvage some mutually acceptable resolution of the dispute that does not depend upon the choice made by the Court.

24. [114]

    In the circumstances, it is not necessary for the Court to deal with the plaintiffs' alternative quantum meruit claim. Although the evidence given by the plaintiffs about the nature and cost of the renovations that they undertook was sufficient to sustain their equitable proprietary estoppel claim in part, it may not have been sufficiently precise to establish the reasonable cost of the works.

25. [115]

    As Irene has not succeeded in her cross claim in establishing a right to possession of the Georges Hall property from 2 May 2020, she has not established a right to an order against the plaintiffs for an occupation fee for that period. Irene's rights in relation to possession of the property will be subsumed in the relief that the Court ultimately grants in respect of the principal dispute between the parties.

26. [116]

    In relation to Irene's claim for an order that the plaintiffs repay her a debt of $24,500, I have noted above that, in the plaintiffs' defence to Irene's cross claim they pleaded that they had repaid $2,000 plus additional unspecified repayments. Irene accepted that an amount of $500 had been repaid, but it was Helen's evidence that she had made two payments of $500 (T 30.1). If Helen's evidence is accepted, the amount of the debt outstanding is $24,000. Although the evidence on both sides is mere assertion as to the amount repaid, I prefer the evidence of Helen as she was generally the more reliable witness. Accordingly, the plaintiffs should be ordered to repay Irene the sum of $24,000.

27. [117]

    It will be necessary in due course for the Court to deal with the issue of costs. The parties should make submissions on that issue in conjunction with their submissions concerning the appropriate relief that should be ordered. The parties should bear in mind that, even though the plaintiffs will succeed in obtaining substantial relief, the outcome of the proceedings is likely to be one of approximate equality of result. No party embraced the evidence that was available concerning the mutual representation of the plaintiffs that Irene could return to live in the granny flat and be cared for by the plaintiffs. On the one hand, the Court's acceptance of that evidence prevented the plaintiffs from obtaining the relief that they sought, but also absolved them of the possible consequences of unconscionable conduct in making the arrangement with Irene on the terms contended for by the plaintiffs. On the other hand, the Court's acceptance of the evidence will have been a significant factor in Irene having achieved the degree of success in these proceedings that she will have achieved when the final orders are made.