Anwaryar v Amanudin

This is a claim by the plaintiff in two parts. The first part involves the contention that the registration of the severance of a joint tenancy of land should in some way be set aside or defeated. The second part, which is in the alternative, is a claim for a family provision order from the estate of the plaintiff’s late husband, Mohammed Omar Anwaryar (the testator).

The first claim depends upon the principles of equitable estoppel and will succeed or fail depending on whether I am satisfied about the assurances and representations that are said to have been made to the plaintiff. Issues of reliance and detriment also need to be taken into account.

The second claim raises issues under the Succession Act 2006 (NSW) in circumstances where the testator had, for all intents and purposes, established a second relationship and started a new family without ever having gone through a process of divorce in this country.

The plaintiff and the testator met in Afghanistan in 1973. They were married in Kabul and moved to Australia in 1978. The plaintiff is now about 62 years of age. In 2006 the defendant and the testator went through a Nikah marriage ceremony pursuant to Sharia law in Islamabad, Pakistan. At the date of that ceremony the testator was 56 years of age and the defendant was 32. She is now 41 years of age, a widow and has two young children aged five and three years. The plaintiff has two adult daughters who live with her, together with their husbands, in a property at Bella Vista in Sydney.

The Bella Vista property consists of a large two storey residence with four bedrooms, a study, a swimming pool, a double garage, a garden and the usual living and dining arrangements. The plaintiff and the testator became the registered proprietors of the Bella Vista property in 2003 as joint tenants. They purchased the land and constructed the house. They had conducted a business together through a company of which the testator was an 80% shareholder and the plaintiff was a 20% shareholder. There was no evidence as to the profitability of the business.

In 2005 the plaintiff and the testator paid out the mortgage over the Bella Vista property using, at least in part, proceeds from the sale of the business. From 2005 the testator left his family in Sydney and moved overseas. The explanation for his departure is poignantly described by him in a statement which he made in support of a visa application for the defendant:

From August 2006 to January 2010 the testator and the defendant lived as husband and wife, for most of that time in Sharja in the United Arab Emirates. In January 2010 the testator and the defendant moved to Australia and established a home on the Gold Coast in Queensland. They continued to live as husband and wife on the Gold Coast until the testator’s death in 2013. Their first child was born in February 2010 at Southport in Queensland and their second child was born in January 2012, also at Southport.

They purchased an apartment on the Gold Coast which was funded using some savings of the defendant and funds provided to her by her father. In November 2011 they purchased another apartment which was then needed to provide room for the second child who was soon to be born. The defendant still lives in this apartment with her two young children. The evidence indicated that its current value is approximately $350,000. It is clearly small and the two children share a bedroom.

The purchase of this apartment was funded with a loan from Westpac Banking Corporation which was secured over the first apartment as well as the second apartment. At the time of the testator's death the amount owed to Westpac was $328,527. The first apartment was sold after the testator's death for $265,000 and most of the proceeds of sale were used to pay off the Westpac loan. At the date of hearing an amount of approximately $78,000 is still owing to Westpac secured by a mortgage over the second apartment.

From October 2012 the testator commenced to suffer poor health. He had a serious heart attack on 5 October and died in June 2013. It is clear from the evidence that from at least November 2012 he commenced to give careful consideration to the disposition of his property upon his anticipated death. The apartment in which he lived with the defendant and their two young children was registered in his name. The Bella Vista property was, as I have said, registered in the name of the plaintiff and himself as joint tenants.

As is often the case, the oral evidence was less reliable than the contemporaneous documentary evidence. The relevant file notes of the solicitor to whom the testator gave instructions at least provided me with a firm evidentiary foundation. They disclose that on 13 November 2012 the testator, having thought about his affairs, contemplated an outcome that involved the Gold Coast apartment being left to the defendant, while the plaintiff would have her 50% share of the Bella Vista property. At that stage, he proposed that the remaining 50% of the Bella Vista property, which he called ‘his share’, be distributed as to 10% to his daughter, Samira, 10% to his daughter Yalda, 20% to his young son Abdullah and 10% to his youngest daughter Marwa. He contemplated that the 20% share of his son Abdullah and the 10% share of his daughter Marwa should be effectively given to the defendant pending their majority.

In December 2012 he wrote another document in which he stated that the half share of the Bella Vista property which he owned should be given to his children in much the same way as he had intended in November. The relevant point is that he intended and stated that the plaintiff should receive no more than her 50% interest in the Bella Vista property and that the defendant should have the Gold Coast apartment and most of the balance of his 50% share in Bella Vista.

On 10 December 2012 he made a will which appointed the defendant as his executor and trustee. The will provided for the whole of the estate to go to the defendant and for her to cause the Bella Vista property to be sold with a view to 50% of the sale proceeds being paid as to 10% each to Samira and Yalda and 30% being paid to Abdullah and Marwa as to 20% and 10% respectively. The defendant was to receive the balance and the residue of the estate.

On 10 January 2013 the testator made another will which relevantly reflected the same broad intentions. In particular that the plaintiff should have her 50% share of the Bella Vista property but that the testator should be free to dispose of his 50% share in the manner which he indicated. It is apparent that on 10 January 2013 the testator received advice from Mr O'Reilly, his solicitor, about the desirability of severing the joint tenancy to enable him to give effect to his testamentary intentions.

On 10 January 2013 the testator executed a transfer to himself pursuant to s 97 of the Real Property Act 1900 (NSW). In due course this resulted in a letter dated 28 February 2013 being issued by the Land and Property Information division. The letter was addressed to the plaintiff as the other joint tenant and informed her that the transfer had been lodged, that its effect would be to sever the joint tenancy and that it was the Registrar-General's intention to register the transfer within 30 days from the date of the letter. The letter also provided an explanation as to the difference between the ownership of land as joint tenants and its ownership as tenants in common.

It would appear that in early March there was some discussion and disagreement between the testator and the plaintiff or between the testator and his daughters. On 5 March Samira made a telephone call to Mr O'Reilly. He noted that ‘She got a letter from LPI advising them of the change in tenancies’. He also noted that she seemed emotional. I should interpolate to say that I found Samira's evidence, when asked about this conversation, defensive. She said initially that she had no recollection of calling the solicitor but when the file note was shown to her was prepared to concede that she probably did have such a conversation. I doubt whether she would have forgotten. I should also interpolate to say that another file note reveals that on 6 March the solicitor had a telephone conversation with the defendant and the testator who told him to ‘Ignore Samira, do not pass on their contact details. Pass on their regards to John’.

On 11 March 2013 the testator wrote to Mr O'Reilly. He was clearly unhappy. He said that for approximately 13 to 14 years he had not had any kind of relation with the plaintiff and was separated. He said that according to his will, she was to receive her 50% share of Bella Vista and that he had also given a percentage from his share to their daughters, Samira and Yalda, namely 10% each. He then said to Mr O'Reilly, ‘Unfortunately still they are not satisfied. If they have any concern and taking any legal step like claiming for divorce or asking to 50/50 by every assets with her. I do [not] agree with her decision as per the following points’. He then set out reasons why he considered that on one view of the matter he should receive 75% of his assets and the plaintiff 25%, but that he proposed to deal with the property as to 50% for the plaintiff and 50% to himself, adding that his 50% should be given to the defendant after his death and after her, to his two little children. The difference at this point of the sequence of events is that he had decided that he no longer had any responsibility for Samira and Yalda and did not propose to give them any part of his 50% share. His letter suggests that he was annoyed because ‘they are not satisfied’.

The testator wrote another letter on 11 March, also apparently to Mr O'Reilly, explaining that ‘Unfortunately, because of our religious practice and our two daughters, I did not want to shock them by giving the formal paperwork of divorce to Maliha. To me that long period of separation and having no understanding, no relationship between us, that is also divorce’. He repeated in this letter, ‘I would like to give my 50% share of Bella Vista property and the rest and residue of my estate after my death to my wife Diana and after her to my two kids, Abdullah and Marwa’.

On 13 March the testator and the defendant met with the solicitor to discuss the testator's will. The file note records the following ‘He said that Maliha would leave her share to her two adult children and therefore he did not want to leave any of his share to the adult children, but rather ensure that Diana and his two minor children were the sole beneficiaries of his estate... He confirmed that he had not had anything to do with her for more than 13 years and that he had been [with] Diana for seven years’. The solicitor also recorded the following proposition, ‘I did point out, however, that she had lived in the Bella Vista property without a mortgage for more than 13 years of separation and Mohammed had not had that advantage and having regard to the fact that the children were now adults, it was unlikely that she could improve her position by going to court’.

A few days later on 19 March, the testator and the defendant received what was effectively a deputation from the plaintiff and her extended family. The deputation included not just the two daughters Samira and Yalda but Samira's husband Hassib. The conversations which are said to have occurred on that day at the Gold Coast apartment are the principal foundation for the plaintiff's case. Although the plaintiff’s case was that a representation was made that amounted to an assurance that the plaintiff would in some way be entitled to remain in the Bella Vista property, or that she would receive the entirety of it, or that in some other way she would be secure in the continuation of her current living arrangements, the evidence did not support that proposition.

There were two principal communications with the testator on that day. The first was when Hassib spoke to the testator. He did not give evidence and I have not seen him, but he is, I infer, a competent business person. His wife Samira is 37 years of age. She and Hassib own two Pizza Hut franchises. They also own real estate together. Judging from Samira's evidence, to which I will return, they are successful. As the oldest surviving daughter, she clearly took a leadership role in looking after the affairs of her mother. In the circumstances, it was natural that her husband Hassib would adopt the role of family spokesman, in the first instance. This is what he appears to have done on the morning of 19 March 2013.

According to the defendant's evidence, which I found generally reliable and plausible, Hassib first spoke to the testator. He said ‘We are all here to know why you changed the joint tenancy and to whom you provided your share. This is the purpose that we have come for’. The testator responded:

Later in the day, the plaintiff, Samira, Yalda and Hassib, all came up to the apartment and spoke to the testator. The defendant’s evidence was that the plaintiff said to the testator, ‘I do not want anything, I just came to see you’. She said they stayed for between five and ten minutes and then left. She emphasised that on that occasion when the plaintiff, Hassib, Samira and Yalda came to the apartment in the afternoon, ‘Nobody raised this matter. Nobody, even Hassib did not ask again’. She said that during this visit, Hassib was inside the room.

One of the unsatisfactory features of the evidence is that, as so often happens in cases of this nature, many indirect relatives and others who had no useful direct evidence to give about the events in question, swore affidavits. However the absence of any evidence from Hassib was marked.

When the plaintiff was asked about this meeting in the apartment at which so many members of the family were present, she gave this evidence:

In contrast to the plaintiff’s evidence, Samira and Yalda were adamant that the recollection set out in their affidavits was clear. Each deposed to the fact that the testator told the plaintiff in the apartment ‘This is your house and I will not do anything to take it away from you’.

Sometimes in cases such as this, the evidence from the plaintiff as to the relevant representation, implausibly increases in frequency, quality and clarity as the cross-examination proceeds. But this is not such a case. In this case the plaintiff's evidence of any relevant representation by the testator never rose high enough to satisfy me that it could support an estoppel. In order to sustain an equitable estoppel, the representation relied upon by the plaintiff must be sufficiently clear or unambiguous as to make it reasonable for the representee to interpret the representation or promise in the manner contended for and to act in reliance on that interpretation: Hammond v J P Morgan Trust Australia Ltd [2012] NSWCA 295 at [52].

Given the statements of intention that the testator expressed to his solicitor and in his wills prior to 19 March 2013, the plaintiff’s case that the testator made a directly contradictory statement to her on 19 March, seems unlikely. I accept that the testator may not have wished to unduly upset the plaintiff when he spoke to her. He certainly spoke firmly to Hassib earlier in the day. But there is nothing in the plaintiff's own evidence which persuades me that he said anything to the plaintiff that could amount to an assurance, let alone one that was clear, unambiguous and reasonable to rely on. He probably wanted to keep the matter as neutral as possible. But the letter from the Land and Property Information Service spoke for itself and the testator, I infer, was well aware of it. He had no intention of stopping the process. He had already made his position clear to Hassib. The testator could have been expected to assume that Hassib would pass on his position to the plaintiff and her daughters.

There are additional reasons why I am reluctant to accept the evidence of the plaintiff, such as it was, or that of Samira and Yalda, about what the testator said. They of course had a direct interest in the outcome. In addition, the testator is no longer alive and not in a position to contradict what has been attributed to him. I set out the reasons why one should react with caution and sometimes scepticism to the attribution of important representations to a deceased person in Wilcox v Wilcox (2012) NSWSC 1138 at [9] – [10]:

I have made allowance as much as possible for the fact that the plaintiff was anxious, confused and distraught in the witness box. But it was clear to me that her desire to retain the house at Bella Vista for the benefit of her extended family was her dominant motivation and the controlling influence on her evidence. I am afraid that she was a highly unsatisfactory witness – at times theatrical, emotional and pleading. I was not confident in her evidence. Her self-interest was paramount. She did not attempt to give direct, complete and wholly truthful evidence unless occasionally she perceived it to be in her interest to do so.

The mantra that underpinned the plaintiff’s case was an assertion that the testator had given her certain assurances, the effect of which was said to be to enable her to remain in the property and, it would seem, have the beneficial interest in the entirety of it. But as I have said, when her evidence is closely examined it did not support that contention. My level of dissatisfaction with her evidence only increased when she occasionally repeated the thrust of this mantra when it was not called for and even after her evidence had concluded. I was sympathetic, but unimpressed; understanding but not persuaded. I do not of course rest only on my impression of her in the witness box. Taken in isolation, demeanour and impression are not always a reliable yardstick of where the truth lies: Mealey v Power [2015] NSWSC 1678 at [3]. The content of her evidence and the contemporaneous objective facts to which I have already referred are more persuasive. The probabilities do not support the plaintiff’s case.

I should say something about the evidence of Samira. I was not comfortable with her evidence. She was, in my opinion, economical with the truth. She was intelligent, articulate and accomplished and clearly understood the legal significance of the underlying factual issues. But she was reluctant to provide any information that she thought might not necessarily assist her mother's case. And of course, she had a vital interest in the retention by her mother of the Bella Vista house, where she has enjoyed for many years the opportunity to live in the home with her husband, her sister and her sister’s husband.

Much of Samira’s evidence was incomplete. She seemed unwilling to give a full or helpful picture unless and until more was prised from her. She did not give me the impression of coming to assist the Court with an honest and frank recollection of events. Rather she gave me the impression that she thought that she was there to engage in a sort of contest to advance her mother's case. She was not forthcoming on any issue that she perceived to be against her mother's interests and was at times guarded when a disinterested and honest person would not have been so.

Some of the more unsatisfactory features of her evidence related to the reasons why she did not produce, or was not asked to produce, documents pursuant to a notice to produce for inspection issued by the defendant's solicitors. She contended implausibly, and defensively, that she was not aware of the notice, notwithstanding that she assisted her mother closely in the litigation, and may well have been its instigator. And her answers to questions about the financial affairs of herself and her husband were grudging. The notice to produce is important because it was clearly relevant to a fair assessment of the plaintiff's financial circumstances and that of those with whom she cohabitated in the home, namely her two daughters and their husbands. It sought, not unreasonably, income tax returns, bank statements, credit card statements and documents relating to property transactions from each of the plaintiff, Samira, Hassib, Yalda and her husband Khalid. The notice called for production by 15 December and was called on in court in early 2015.

There has never been a response to the notice to produce and I was not assisted at the hearing by any seriously useful financial information that might have enabled me to form a view about the true extent of the plaintiff’s overall direct and indirect financial circumstances. The meagre evidence left me with the impression that the plaintiff’s daughters and their husbands are financially comfortable and that their position is improving all the time. Samira and Yalda own two Pizza Hut franchises. Their husbands have good jobs. None of them pay rent. They are saving and all of them are obviously very supportive of their mother. I will come to deal with those issues in a little more detail when dealing with the family provision claim.

The consequence of my findings in relation to the absence of reasonably clear representations or assurances made by the testator to the plaintiff on 19 March are that the attempt, by an equitable estoppel, to defeat the registration of the severance of the joint tenancy must fail. In certain circumstances such a claim might possibly be successful, although no case was put to me where such a claim has ever succeeded after registration of a transfer effecting severance. In Goyal v Chandra (2006) 68 NSWLR 313; [2006] NSWSC 239 Brereton J dealt with such a claim but on different facts and in much stronger circumstances. He was prepared to restrain steps being taken to register the severance of the joint tenancy. He was not faced with the situation where the severance had already occurred and been registered. In any event there was no comparable issue in that case as to the poor quality of the evidence of the representations and assurances.

In addition to the evidence of the plaintiff and Samira, I should observe that Yalda's evidence was more acceptable. She seemed to be more willing to give frank assistance to the Court. But on the crucial issue as to what was said by the testator on 19 March in the apartment, I cannot accept the probability of what she asserts. It is well known that:

To similar effect is the following statement by Cronin J in Smyth v Pappas [2011] Fam CA 434 at [14]:

I should conclude on this issue by saying that, in not accepting the evidence of Samira and Yalda in relation to what was said by the testator on 19 March, I do not necessarily suggest that each of them deliberately intended to give evidence that did not reflect the truth. It is possible that they have convinced themselves of the correctness of what they now assert. It is not necessary for me to decide.

I have already said that the evidence of the defendant was generally reliable and plausible. She gave evidence that I felt comfortable in accepting. She appeared at all times to be frank, clear, direct and cogent. She was not adversarial. She was firm where she needed to be, despite some provocative cross-examination, and did not give me the impression that she was saying anything other than what she believed to be the honest truth. Her recollections struck me as being far more reliable than those of the plaintiff and her daughters. They also happen to be more consistent with the contemporaneous objective facts. I accept, of course, that she was just as interested in the outcome as the plaintiff and her daughters. All had a motivation for giving evidence which assisted their respective cases. But in the case of the defendant, I regard her as a witness on whom I could place reliance.

Finally, on the question of witnesses, I was not impressed by the absence of any evidence from Hassib. It was clear to me that Samira wanted to leave out of any consideration by the Court her financial position and that of her husband. It was also clear to me that Hassib could have given evidence, but chose not to do so, especially in relation to his conversation with the testator earlier on 19 March 2013. I infer that he could not have given any evidence that would have advanced or assisted the plaintiff's case.

I should not leave the plaintiff’s first cause of action without dealing with the questions of detriment or reliance. The only reliance which the plaintiff appears to identify is the fact that after the meeting on 19 March she did not seek any legal advice about restraining the registration of the transfer or about seeking a property settlement from the deceased. I am not convinced that any of this amounted to adequate evidence of detrimental reliance.

The plaintiff did not say what she would have done if she had not received the assurance that she contended that she had received. At least she did not say so with any real clarity. I doubt whether she would have proceeded to instruct solicitors to seek an injunction to restrain the registration of the transfer which effected the severance of the joint tenancy. And I somehow doubt that she would have commenced divorce proceedings or gone to the Family Court of Australia to seek a property settlement. I think it is more likely that she reluctantly accepted what the testator said to Hassib and recognised that he had decided to benefit his new wife and her young children more than he had chosen to benefit her.

What the testator chose to do was reasonable and natural in the circumstances. His marriage to the plaintiff had been over for many years. He had started a new life and had two new children. The collapse of his marriage to the plaintiff was not his fault. In fact, I do not attribute fault to anyone for what happened. These things just happen. The plaintiff’s reaction to the death of their eldest child and the testator’s need for affection are understandable. I also accept that the testator did not want to cause any further hurt or pain to the plaintiff or to his daughters by commencing divorce proceedings. As he saw it, the fact that they had led separate lives for many years and that the plaintiff already held a 50% interest in a substantial and valuable property, was enough in his mind to satisfy his moral obligation to her.

The fact that the plaintiff appears to have accepted what the testator said to Hassib and did not take any steps to attempt to prevent the registration of the transfer, suggests that she may have recognised that the testator’s choice was reasonable. In these cases, the claimant’s relatives are sometimes the ones who are more upset by what the testator has done, and who encourage the claimant to take action.

I do not think that the plaintiff has made out any case of detrimental reliance. In any event, it is hard to see what the detriment is because she always retained her right to approach the Court, as she has now done, to seek a family provision order. If she had approached the court to restrain the registration of the transfer, the evidence presented to me suggests that she would have failed anyway. For that additional reason I am not satisfied that it has been demonstrated that there was detrimental reliance.

I should eventually turn to the family provision claim. The plaintiff is an eligible person. The jurisdiction of the Court to make a family provision order is conferred by Section 59(1) of the Succession Act 2006 (NSW). The question in this case is whether adequate provision has been made for the proper maintenance, education or advancement in life of the plaintiff. The factors that may be considered by the Court include the financial resources including earning capacity and financial needs, both present and future, of the applicant or, ‘if the applicant is cohabitating with another person – the financial circumstances of the other person’. This seems to me to be one of the more important criteria which this case throws up for consideration. But far from the evidence dealing with the financial resources of the applicant and her extended family in a fair and comprehensive way, I formed the distinct impression that there was a deliberate attempt on the plaintiff's side, including by the plaintiff's daughters, to hold back as much information as possible about their financial circumstances and their earning capacity.

The parties agreed that the Bella Vista property is worth $1.9 million. The half share to which the plaintiff is entitled as a tenant in common is therefore worth approximately $950,000. She is 62 years of age, she is the recipient of a disability support pension in an amount of approximately $800 per fortnight. As I have said several times, she lives with Samira and Yalda and their husbands, all of whom have good jobs, own cars and have a bright future.

Samira and Yalda and their families assist the plaintiff with financial support. The plaintiff has had the advantage, of which the testator was well aware, of living and remaining in the Bella Vista property for the whole of the time since he left in 2005, even after he moved back to Australia and started a new family with the defendant.

The failure of the plaintiff to respond to the notice to produce for inspection of her financial records, or any of the financial records of her daughters and their husbands, and the absence of any explanation for doing so does not fill me with confidence. Indeed the plaintiff's evidence and Samira's evidence in relation to this failure made matters worse. Both were evasive on the issue.

The plaintiff's circumstances may be compared with the defendant's circumstances. She is a relatively young widowed mother with the sole and fulltime care of her two children. She is alone with no extended family in Australia to support her. She clearly wants to remain in Australia and to give her children an education in this country. She has the prospect of future employment in Australia but not in the immediate future and not fulltime. She lacks any tertiary qualification, but she is clearly competent and personable and in due course I have no doubt will be able to lead a successful life.

The two apartments on the Gold Coast were both mortgaged. When the first apartment was sold the proceeds of sale were used to pay out part of the loan secured over the second apartment. As I have said, the remaining mortgage on the second Gold Coast property is approximately $78,000. The defendant’s net equity is only approximately $280,000. She subsists on a pension.

It is useful not to lose sight of the fact that freedom of testamentary disposition remains a foundational principle of our system or law. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance, rather, his Honour explained, ‘It preserved freedom of testamentary disposition but subjected that freedom to a new qualification’.

Hallen AsJ (as he then was) expressed the same point when he said in Goodsell v Wellington [2011] NSWSC 1232 at [108] that:

I repeat the following comments that I made in Madden-Smith v Madden [2012] NSWSC 146 at [31] – [33]:

It is not unreasonable to conclude in this case that the testator was in a far better position than I am to appreciate the virtues, failings and needs of the plaintiff and the defendant. There was no suggestion that his will was irrational or vindictive or wholly unreasonable. I accept that he may not have known of the precise detail of the financial position of his daughters and their husbands, but he can be taken to have been aware that they were succeeding in life; were employed in good jobs; were married to husbands with good jobs; were supporting their mother; and could be expected to continue doing so.

As to the defendant’s circumstances, no one other than the testator could have better appreciated the position in which she found herself and her requirements for reasonable financial assistance. For those reasons, which I have abbreviated because of the late hour, I order that the summons be dismissed. The cross-claim, which only arises in the alternative, should also be dismissed.