Bahnik v Budimir

1. [1]

   The late Peter Kastropil (the deceased or Peter) died intestate on 2 November 2017 at 85 years of age. This Court granted letters of administration of his estate to the defendant, Smiljana Budimir, a cousin of Peter, on 14 August 2023. The plaintiff, Mr Zeljko Bahnik, who was a friend of Peter, claims an entitlement to the entire estate of Peter under the principle of proprietary estoppel by encouragement, relying on alleged promises made by Peter during his lifetime. Without intending any disrespect, I shall refer to the deceased and his wife by their first names.

2. [2]

   Peter left an estate worth approximately $7.8 million. It was comprised of his home at Tulloch Avenue, Concord West (Tulloch Avenue property) which was valued at about $1.92 million, cash in various bank accounts of $2.68 million, a life insurance policy of about $66,000, and shares in various companies worth about 3.1 million. These estate assets were liquidated upon the grant of letters of administration and are now invested in a controlled monies trust account of the defendant’s solicitor.

Pleaded claim

1. [3]

   By his amended statement of claim filed on 31 March 2025 (ASOC), the plaintiff relies for his estoppel claim on the following promises made to him by Peter:

   1. (1)

      A promise said to have been made no later than about June 2010 by Peter to the plaintiff that if the plaintiff was to continue to support and care for Peter and his wife Lily (who died on 2 February 2012) and their affairs, until death then upon the death of Peter and Lily, the plaintiff would inherit the entire estate of Peter (First Promise): ASOC [7].

   2. (2)

      A conversation in the winter of 2011 in which Peter affirmed the First Promise by representing to Karlo Barukic, in the presence of the plaintiff, that he would leave his entire estate to the plaintiff (Second Promise): ASOC [10].

   3. (3)

      A conversation said to have been in February or March 2012 in which Peter represented to Miko Teklic, in the presence of the plaintiff, that he would leave his entire estate to the plaintiff (Third Promise): ASOC [11].

   4. (4)

      A further representation by Peter to the plaintiff after Lily’s death said to have been made on 11 July 2013 in the context of Peter giving to the plaintiff a box containing documents relating to Peter’s bank accounts, share portfolio and title deeds to Peter’s real property, that restated Peter’s promise that if Peter died, all his estate would pass to the plaintiff (Fourth Promise): ASOC [12].

2. [4]

   The plaintiff pleads that he reasonably believed and expected that if he cared for and looked after Peter and Lily’s needs in their advancing years to their satisfaction, upon death of Peter and Lily he would inherit the entire estate of Peter: ASOC [14].

3. [5]

   The plaintiff pleads that he acted to his detriment on the faith of those promises by devoting substantial time, resources and effort to supporting, caring for, assisting and advancing the interests of Peter and Lily (until her death in 2012) such that it is now unconscionable for the defendant (in her capacity as administrator of Peter’s estate) to resile from those representations: ASOC [15], [22].

4. [6]

   The acts pleaded as the detrimental reliance on the promises are:

5. [7]

   The defendant has filed a cross-claim to the effect that in the event that the plaintiff is not wholly successful, she would be justified in distributing the estate to those relatives said to be entitled on intestacy. That cross-claim is not pressed and does not need to be determined in these proceedings.

Factual background

1. [8]

   Peter was born on 30 August 1932, in Blato, Croatia. His wife, Lily Kastropil (née Loje) (Lily) was born in about 1937 in Macedonia. They were married in Croatia in or around 1956 and shortly afterwards they emigrated to Australia.

2. [9]

   Lily and Peter had one child, Robert Kastropil, who tragically died in September 1988 at the age of 31 by drowning. The evidence of the plaintiff corroborated by Ms Dennett is that Peter believed that his son had committed suicide and was deeply distressed about this for the rest of his life. Neither Lily nor Peter had any other children.

3. [10]

   Lily suffered from schizophrenia, did not work and was cared for primarily by Peter, in later life assisted by the plaintiff. Lily died intestate on 12 February 2012 in Concord General and Repatriation Hospital (Concord Hospital). Letters of Administration were granted to Peter in or around 2012.

4. [11]

   Peter died on 2 November 2017 at the Cardinal Stepinac Nursing Home, St John’s Park, NSW, aged 85 years. At the time of his death he did not have any other spouse or de facto partner or former spouse or de facto partner, and his closest surviving relative is the defendant, a paternal cousin.

5. [12]

   Following Peter’s death the plaintiff had made an application for administration of Peter’s estate (in proceedings 2017/00364643) with the intention of prosecuting a claim for provision. Following receipt of a requisition from the Probate Registry, that claim was not pursued and by letter of 23 April 2018 the defendant was notified of her potential interests in the estate (and of Peter’s expressions of intention to provide for the plaintiff).

6. [13]

   The plaintiff (also of Croatian extraction and about 17 years younger than Peter) first met Peter in 1987 at Concord Hospital, where they both worked. Peter was employed in the intensive care department of the hospital as a nurse overseeing stores, sterilisation and equipment safety from around 1990 until his retirement in around 2000 aged 68. The plaintiff was employed at the same hospital as a technical officer in the biomedical engineering department, servicing equipment in the intensive care department until his retirement in September 2011 at the age of 62.

7. [14]

   They became closer from about 1998 onwards, when Peter invited the plaintiff to his home in Tulloch Avenue, Concord West for a coffee. At this time, the plaintiff was living with his wife and two young children in Nirranda Street, Concord West which was a short drive from Peter’s home. At this meeting, Peter told the plaintiff about the death of his son and his wife’s schizophrenia and that, following her diagnosis, ‘so-called friends that we knew abandoned us and did not want to know us anymore’. They exchanged phone numbers and from then on kept in regular contact with each other. In the early years of their friendship they spoke by telephone or met in person on a weekly basis or sometimes more frequently. The contact became much more frequent in Peter’s later life.

8. [15]

   It is not in dispute that a strong friendship developed between the plaintiff and Peter from this time. It seems likely, based on the evidence of both the plaintiff and Ms Dennett who knew them both from around 1990, that the plaintiff and Peter were drawn together by their common identity as they spoke the same language and were immigrants from Croatia. It is also not in dispute that Peter was a genuine friend of Peter and provided care and support for Peter as he became older and frailer in later life.

9. [16]

   In 2005, the plaintiff and his wife divorced and he moved to another property in Jellicoe Street, Lidcombe, which was further away from Peter’s home but still only a relatively short drive. The plaintiff’s then eleven-year-old son lived with the plaintiff from this time, but his daughter, then aged six, lived with his former wife but stayed with the plaintiff every second week. The plaintiff found the breakup with his wife very difficult personally and emotionally. He was depressed and had financial problems, particularly as the house he moved into (which had been an investment property owned by him and his wife prior to their divorce) was entirely unfurnished and he could not afford to furnish it or to make repairs.

10. [17]

    Around this time Peter and Lily provided substantial emotional and financial support to the plaintiff for which he said in his affidavit evidence he was ‘forever grateful’. During the period from 2005 to 2009 Peter helped the plaintiff financially by making a number of gifts to enable him to furnish the property, purchase computers for his children and make repairs and improvements to the property totalling around $64,700. In 2012, Peter also made a gift of $10,000 to the plaintiff after he had managed the sale of an investment property owned by Peter.

11. [18]

    From around 2005, the plaintiff started helping Peter and Lily. Due to her schizophrenia, Lily did not like to leave her home and usually went no further than their nearby local corner shop. On occasions, the plaintiff would drive one or both of them to the shops or to other places they needed to go such as a polling station so that they could cast a vote at elections. He looked after Lily when Peter went overseas for around four weeks in September each year, running errands for her and assisting her with shopping and work around the home. He also did other odd jobs for both of them in the period from 2005 to 2010 including gardening, repair and maintenance tasks around their home or their investment properties, and arranging trade persons, such as plumbers, to attend when necessary. The reliance of Peter and Lily on the plaintiff increased over the period from 2005 to 2010 due to their increasing ages and health issues.

12. [19]

    On 27 June 2010, Peter (then aged 78) suffered a stroke which impaired his vision. He stayed in hospital for a week and was visited daily by the plaintiff. Peter could no longer drive his car due to his impaired eyesight and was distressed and worried about the impact this would have on his ability to care for Lily.

13. [20]

    In late July 2010, the plaintiff and Peter had a conversation at Top Ryde Shopping Centre on this topic which is the basis of the First Promise dealt with in the consideration of the plaintiff’s evidence below.

14. [21]

    During 2010 Peter gave the plaintiff a list of the people he would like the plaintiff to contact should something happen to him, including their telephone numbers. That list is in evidence. It contains 8 names with associated telephone numbers, four being relatives of Lily living in Croatia and the remainder being friends of Peter living in Australia, two of whom were a mother and her daughter who came from the village in Croatia where he grew up and on occasion visited him at the nursing home where he lived after his second stroke in 2013. It is not in dispute that none of the people on the list were relatives of Peter.

15. [22]

    The plaintiff deposed that from about June 2010 until mid-2013 (which is when Peter had a further stroke) he was involved in all aspects of the lives of Peter and Lily, from everyday domestic chores to financial management and health matters. Their day-to-day needs he assisted with included: (a) weekly shopping; (b) driving them to their appointments with their doctors, dentist, and other health professionals and the chemist when needed; (c) driving them to their bank and assisting with their banking; (d) assisting them with understanding and interpreting instructions given by their doctors and other healthcare professionals; (e) completing forms and paperwork, for example tax returns and hospital admission forms; (f) identifying and organising a place for Lily in a nursing home in Strathfield in late 2011; (g) arranging Lily’s funeral in February 2012 and organising a solicitor to handle Lily’s estate; (h) arranging the sale of their investment property in Fremont Street, Concord West; (i) completing the application form for Peter’s passport. This evidence was not contested by the defendant.

16. [23]

    The plaintiff also deposed that in addition to helping Peter and Lily with their day-to-day needs, from around the time of his conversation with Peter in July 2010 he did repairs and maintenance on the Tulloch Avenue property and on their investment properties in Fremont Street and Hospital Road, Concord West. The plaintiff deposed that the work he undertook in relation to the Tulloch Avenue property involved such things as: (a) renovating the laundry, which included removal and replacement of the floor and wall tiles and replacing the window sash cords; (b) removing and installing venetian blinds in the dining, living area and laundry; (c) buying and installing back security door; (d) organising a tradesperson to make metal handrails at the entrance of the house which he then installed; (e) renovating the bedroom at the back of the house so that he could stay there on occasions when Peter needed assistance; (f) installing power points and replacing light switches; (g) buying and installing a range hood and gas stove in the kitchen, as well as a new refrigerator and disposing of the old ones; (h) painting the kitchen, dining room and hallway, ceilings and doors; (i) buying an installing a new television and new furniture and removing the items replaced; (j) arranging for service technicians such as a plumber to undertake repairs; and (k) gardening, including mowing lawns weeding and pruning until early 2013 when the plaintiff’s son, Martin, took over the gardening until Peter died. He also deposed that in the period from 2010 to Peter’s second stroke in July 2013 he visited Peter at the Tulloch Avenue property almost every day.

17. [24]

    I accept the plaintiff’s evidence summarised in the last two paragraphs noting that it was not contested by the defendant and is corroborated by the evidence of Dr Balakrishnan, Tracey Dennett and a letter dated 18 August 2013 provided to the Guardianship Tribunal in connection with the plaintiff’s application to be appointed Peter’s guardian and financial manager (CB379).

18. [25]

    In the winter of 2011, the plaintiff arranged for Mr Karlo Barukic, a painter, to paint the exterior of the Tulloch Avenue property, which took about three weeks. Following this Mr Barukic also did some painting work at Peter’s investment property at Fremont Street, Concord West. The plaintiff visited both properties regularly while Mr Barukic was there, and he, Peter and Mr Barukic would often have coffee together and talk. The plaintiff deposed that on one occasion during the three weeks when Mr Barukic was painting the Tulloch Avenue property Peter told Mr Barukic in the plaintiff’s presence that ‘he (Peter) did not have any close relatives and that all of his estate was to be left to me’. Mr Barukic gave evidence about this conversation which I deal with when discussing his evidence later in these reasons.

19. [26]

    In around April/May 2012 the plaintiff introduced Peter to Mr Teklic, a builder who was a friend of the plaintiff, who assisted with the renovation of the bedroom at the back of the Tulloch Avenue property to enable it to be used by the plaintiff when he stayed over at the property to assist Peter. Mr Teklic gives evidence of a conversation during the time that he was at the Tulloch Avenue property doing this work, after he saw Peter hand a set of keys to the plaintiff, in which Peter said ‘this will all be yours anyway’ and that he was leaving ‘everything I own’ to the plaintiff. I deal with Mr Teklic’s evidence of these conversations later in these reasons.

20. [27]

    The plaintiff deposed that he took Peter to his doctor, Dr Sulojini Balakrishnan, for a blood test. The test in May 2013 revealed cancerous cells in Peter’s bladder and the plaintiff took Peter to hospital for him to undergo a cystoscopy procedure on 4 June 2013 and then a second one on 11 July 2013.

21. [28]

    On 14 July 2013 the plaintiff took Peter back to the Tulloch Avenue property on his discharge from hospital and deposed that when they arrived Peter gave him a box containing some documents and said to him words to the effect: ‘If anything happens to me this is all yours’. When he later examined the contents of the box he found it to contain details of Peter’s bank accounts, share portfolio and the title deed to the Tulloch Avenue property.

22. [29]

    The plaintiff deposed that he prepared dinner for Peter that evening and then, on being told by Peter that he did not need to stay overnight, went home. He telephoned Peter the next day (15 July 2013) and when there was no response drove over to the Tulloch Avenue property where he found Peter lying on the floor of his bedroom in a delirious date. The plaintiff called an ambulance and Peter was taken to hospital where it was established that he had suffered another stroke. He stayed in hospital for about six weeks, and while he recovered physically, he still had receptive and expressive difficulties and was assessed as needing a high level of residential care. As the plaintiff was not able to provide Peter with that level of care he arranged for Peter to be moved to the Cardinal Stepinac Nursing Village at St John’s Park which was about 25 kilometres from the plaintiff’s home.

23. [30]

    The plaintiff made a successful application to be appointed Peter’s guardian and financial manager on 16 August 2013 and was appointed on 4 October 2013. The reasons given by the Guardianship Tribunal for making the orders include the following:

24. [31]

    Once accepted at Cardinal Stepinac Nursing Village, the plaintiff provided clothes and other items to Peter including an electric shaver, toothbrush and television, showered and dressed Peter when staff were unavailable, always shaved and cleaned Peter’s teeth, did his laundry, and accompanied Peter on walks, drives and outings. Further, he took Peter to different appointments such as eye-specialists and ultrasound scans as that could not be done at the nursing village.

25. [32]

    Visitor records of the Cardinal Stepinac Nursing Village in evidence confirm the regular and frequent visits by the plaintiff to Peter over the period of almost four years that Peter lived there and that he was the only regular visitor. There were occasional visits by a small number of friends including Mr Teklic. There is no record of the defendant visiting Peter while he resided there.

26. [33]

    In the present case the estoppel relied on is estoppel by encouragement by reason of four promises by Peter. Estoppel by encouragement is recognised as affording relief in equity found in an assumption as to the future acquisition of ownership of property induced by representations upon which there has been detrimental reliance by the plaintiff: Kramer v Stone (2024) 421 ALR 106; [2024] HCA 48 at [32]. It arises where an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment: Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2020] NSWCA 84 at [21] per Handley JA (Allsop P and Giles JA agreeing). If these matters are established equity may compel the owner to give effect to that expectation in whole or in part.

27. [34]

    The encouragement can be a promise made by the owner of property. In Kramer at [36]-[41], Gageler CJ, Gordon, Edelman and Beach-Jones JJ stated the four requirements which need to be established for an estoppel by reason of encouragement from a promise as follows:

    1. (1)

       A clear and unequivocal promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee), which will generally concern some representation about future conduct;

    2. (2)

       A reasonable person in the promisor’s position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct;

    3. (3)

       The promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected; and

    4. (4)

       The consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, and if the promise had not been made.

28. [35]

    In relation to (1), there is some uncertainty as to whether the promise needs to be ‘clear and unequivocal’: see Kronenberg v Macaulay [2025] NSWCA 195 at [158]-[159]. That issue does not arise in the present case as the defendant accepted that it was appropriate to proceed on the basis that the promise, which will generally be a representation about future conduct, will be sufficiently clear ‘if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely’: Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 (Kramer (CA)) at [86] per Ward P, adopting Galaxidis v Galaxidis [2004] NSWCA 111 at [93] (Tobias JA)). Whether the promise is sufficiently clear will be dependent on the context in which it was made: Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 at [56], [80].

29. [36]

    Whether any, and if so what, representation has been made is to be judged objectively according to the impact that whatever is said or done may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee: Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220 at [15] per Meagher JA (Leeming and Payne JJA agreeing).

30. [37]

    Where the relevant assumption or expectation relates to testamentary intentions or promises, it is necessary for the claimant to show that the promise was more than a mere statement of present (revocable) intention and was in the circumstances given and reasonably understood to be irrevocable (ie binding), and this may be done in circumstances short of an explicit statement that the promise is irrevocable: Kronenberg at [145]-[147]; Kramer (CA) at [135]; Bassett v Cameron [2021] NSWSC 207 at [415]; Barnes v Alderton [2008] NSWSC 107 at [58]. In Basset at [415], Ward CJ in Eq (as her Honour then was) said (emphasis added):

31. [38]

    This passage was quoted with approval by Leeming JA (Mitchelmore and Free JJA agreeing) in Kronenberg at [146] and applied by his Honour at [147].

32. [39]

    In relation to (2), the focus is not on what the promisor actually intended but rather on whether what was conveyed by the promise would reasonably have been understood as intended to be taken seriously as an assurance which could be relied on, which requires an objective assessment of the promisor’s intentions in making the relevant promise: Thorner v Major at [5], [17] and [78], cited with approval in Kramer at [38].

33. [40]

    It is not necessary for the claimant to establish any further encouragement by the promisor after the promise is made for the promisee to rely on the promise to their detriment: Kramer at [53].

34. [41]

    In relation to (3), it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee’s act or omission but that the promisee would not have acted or omitted to act in the absence of the promise: Kramer at [39].

35. [42]

    It is not necessary for the promisee to establish that the promise was the sole or dominant cause of the acts or omissions of the promisee; rather it must be a contributory cause: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [66]-[73] and [90]. In other words, it is necessary for the promisee to establish that he would have acted differently in the absence of the relevant encouragement: Q v E Co at [88]; Kramer at [39]. It is a question of fact on which the promisee bears the onus: Sidhu at [58]-[61].

36. [43]

    Hence, the present case the relevant inquiry is what would the plaintiff have done if, the promise by Peter having been made, he had been told that it would not be kept: Q v E Co at [89]; Sidhu at [93].

37. [44]

    It is not necessary for the party relying on the estoppel to articulate precisely what he or she would (counterfactually) have done: Priestley v Priestley [2017] NSWCA 155 at [147]; Q v E Co at [106]. Indeed, caution is justified in assessing such evidence because it is hypothetical and may be self-serving: Q v E Co at [116].

38. [45]

    Reliance is a factual question on which the claimant bears the onus and which is determined on all of the evidence on the balance of probabilities: Sidhu at [58], [61]; Moore v Aubusson [2020] NSWSC 1466 at [402]. As a mere factual matter, there will be cases where it can be fairly said that once it is established that the representation was made, the representation together with all the other facts of the case will enable the claimant to say that, unless the defendant can elicit some further evidence to the contrary, the claimant has discharged its onus: Q v E Co at [119].

39. [46]

    The weight of authority favours the conclusion that it is not necessary for the claimant to show that the promisor (who in this case is deceased) had actual knowledge of detrimental reliance where the representing party’s own express encouragement has brought about the representee’s assumption: Kramer (CA) at [291]-[295] per Leeming JA (Kirk JA agreeing at [296]; Ward P at [199]-[200]).

40. [47]

    In relation to (4), detriment refers to the prejudice or disadvantage that the claimant would suffer by reason of his or her change of position in reliance on the encouraged expectation, if it were to be departed from: Q v E Co at [123]. It is not to be understood narrowly or technically and must be approached as part of a broader inquiry as to whether departure from a promise or representation would be unconscionable in all the circumstances: Q v E Co at [124].

41. [48]

    Where detrimental reliance has been established, the usual remedy will be to require the party estopped to make good the encouraged expectation: Kramer at [41]. In order for the party relying on the estoppel to obtain relief, there must be detriment that is sufficiently substantial to bind the conscience of the party said to be estopped, and there may be cases where estoppel is established, but the disproportion between detriment and expectation is so great that conscience does not require that the party estopped should make good the expectation: Q v E Co at [127].

Approach to the evidence

1. [49]

   This case turns essentially on the recollection of the plaintiff and other witnesses of oral conversations and dealings with Peter many years ago, who obviously is not available to give his version of those events. I have borne in mind the well-known observations of McLelland CJ in Eq regarding the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 318:

2. [50]

   Black J referred to the need to bear in mind a witness’ motives and the overall probabilities in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] as follows:

3. [51]

   The following observations of Hammerschlag J (as his Honour then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[95] are of particular relevance to the plaintiff’s estoppel claim:

4. [52]

   I have also borne in mind that:

   1. (1)

      Reliable contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15]-[16]; Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (and cases there cited);

   2. (2)

      In a claim against a deceased estate based on the oral statements of Peter the court will treat uncorroborated evidence of such statements with considerable caution, and ordinarily looks for some corroboration: see Eggins v Robinson [2000] NSWCA 61 at [26]; Ashton v Pratt (No 2) [2012] NSWSC 3 at [18];

   3. (3)

      When the law requires the proof of any fact the court must feel an actual persuasion of its occurrence or existence before it can be found, and ‘it cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality’: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 per Dixon J.

Evidence of the witnesses

1. [53]

   The plaintiff relied on five affidavits, two dated 16 March 2018 filed in the earlier proceedings and three filed in these proceedings dated 1 March 2024, 5 July 2024, and 21 March 2025, and was cross-examined.

2. [54]

   The uncontroversial aspects of the plaintiff’s evidence have been set out earlier under the heading ‘Background’. In this section I will deal with the following areas: (a) his conversation with Peter in June and July 2010 which are relied on for the First Promise; (b) his later conversations with Peter about his testamentary intention; (c) his discussions with Peter about making a will and (c) his evidence regarding the claimed detriment.

3. [55]

   In his affidavit dated 1 March 2024, the plaintiff deposed that Peter hinted on a number of occasions before July 2010 that he wanted to leave his estate to the plaintiff. He gives evidence in this affidavit of one such conversation with Peter in June 2010, during the course of taking Peter and Lily grocery shopping. They had first gone to Woolworths at North Strathfield and then the plaintiff took them to Coles in Concord as Peter wanted to get some items from there that he thought were cheaper than at Woolworths. He deposed that he had the following conversation with Peter about this:

4. [56]

   The evidence regarding the First Promise is contained in his affidavit dated 16 March 2018 where he deposed to a conversation with Peter in about July 2010 at Top Ryde Shopping Centre about a month after Peter’s first stroke as follows (emphasis added):

5. [57]

   The plaintiff deposed that he and Peter then shook hands.

6. [58]

   In cross-examination it was put to the plaintiff that this evidence of the conversation was inconsistent with other evidence he gave in his affidavit dated 5 July 2024 that he always understood that Peter intended to leave his estate to Lily if he died first. That evidence was:

7. [59]

   The relevant part of the cross examination on this topic is as follows (emphasis added):

8. [60]

   My assessment of this evidence, in light of the plaintiff’s evidence as a whole, is that he was confused by the suggestion by Mr Chapple SC that there was an inconsistency between his evidence of the conversation set out at [56] above and his later evidence set out at [58] above. I do not see any necessary inconsistency of the kind suggested. The two pieces of evidence can sit together if the statement by Peter that ‘if you continue to support and care for Lily and me until my death I will leave you all my possessions’ is read subject to the qualification that it would only apply if Peter survived Lily.

9. [61]

   Promises made in a family or social context ‘are often subject to unspoken and ill-defined qualifications’: see Thorner v Major at [57] per Lord Walker, quoting with approval the observation of Hoffmann LJ, as his Lordship then was, in Walton v Walton (Court of Appeal of England and Wales, 14 April 1994 unreported). In view of their longstanding and close friendship with elements of dependency on both sides, the plaintiff and Peter were in a close personal relationship of a quasi-family nature at this time and this observation is applicable here.

10. [62]

    The qualification that the gift would only apply if Peter survived Lily is implicit in the statement attributed to Peter at [56] above, given that it is expressed as a testamentary promise by Peter in respect of his possessions and not also those of Lily. As I interpret the plaintiff’s evidence, that is what he meant when he said that the reference to ‘until my death’ meant ‘until our deaths’; he understood Peter to be saying that it was only if Peter survived Lily that he would give all his possessions to the plaintiff (as he states in the words in emphasis in the opening part of the cross examination). Understood in this way, the plaintiff was not changing his evidence when he said that ‘until my death’ should be read as ‘until our deaths’ - the substance of the promise is the same with either version.

11. [63]

    In circumstances where the witness was confused by the line of questioning, as I think he was, I do not accept that he should be criticised for seeking to clarify what he understood Peter to have said, particularly when the cross-examination occurred some 7 years after he made his affidavit and some 15 years after the conversation at issue. Also, I am satisfied that notwithstanding that the plaintiff fairly acknowledged that he could not recall when cross-examined the ‘exact words’ said by Peter some 15 years previously, he was giving truthful evidence both in his affidavit and in cross-examination to the best of his ability which reflected the gist of what was said in the conversation.

12. [64]

    Further, what the plaintiff is recalling is ultimately quite straightforward: the plaintiff having promised to look after Lily if Peter predeceased her, Peter then made a promise to the plaintiff that if the plaintiff continued to support and care for both him and Lily until Peter’s death, Peter would leave him ‘all his possessions’. However, this was subject to the unstated but clear qualification that the gift would only be made if Peter survived Lily.

13. [65]

    The cross-examination then proceeded to test why the plaintiff did not seek to have the ‘deal’ documented and his response was that ‘there was no need for it’ (Tcpt, 31 March 2024, p 33(35)). He was also asked why he did not care at the time what Peter’s assets were:

14. [66]

    The plaintiff gave evidence in his affidavit dated 16 March 2018 that Peter made the following statements after the July 2010 conversation which are relied on for the Second, Third and Fourth Promises:

    1. (1)

       that he said to Mr Barukcic (in the plaintiff’s presence) in the winter of 2011 that ‘he (the deceased) did not have any close relatives and that all of his estate was to be left to me’;

    2. (2)

       that at the time Mr Teklic was helping with the renovation of the Tulloch Avenue property (which was in around April/May 2012) Peter said to Mr Teklic (in the plaintiff’s presence) that: ‘After I die everything I own will be Zeljko’s. I do not have any other close family’;

    3. (3)

       that on 14 July 2013 (just prior to his second stroke) Peter handed to the plaintiff the box of documents referred to earlier and said ‘if anything happens to me this is all yours’.

15. [67]

    The plaintiff’s evidence regarding these statements was not directly challenged, although the evidence of Mr Barukcic and Mr Teklic regarding (1) and (2) was challenged in their cross examination. I accept the plaintiff’s evidence that statements to this effect were made by Peter which confirmed the promise he had made in the July 2010 conversation.

16. [68]

    The plaintiff also deposed to other statements by Peter to him consistent with the above. In his affidavit dated 16 March 2018 he deposed that Peter once said (although he does not give the date): ‘I do not care what you’re going to do with my estate after my death but remember your children’.

17. [69]

    The plaintiff deposed in his affidavit dated 16 March 2018 that he often spoke to Peter about him writing a will to make the plaintiff sole beneficiary of his estate should his wife die before him. Given the way this is expressed, those particular discussions must have occurred before February 2012. He said in cross-examination that he could not recall how many such conversations he had with Peter on that topic, and he did not have any conversations with Lily about what would be in her will.

18. [70]

    The plaintiff deposed in that affidavit that Peter left it to him to organise the making of his will but because of all the things that were happening in the period leading up to Peter’s second stroke in July 2013, he ‘never got around to it’ having thought Peter would be around much longer so that there was no urgency to put his affairs in order including making a will. Following Peter’s second stroke in July 2013, and the deterioration in his health, Peter’s capability to make a will ‘seem to diminish’ (a matter confirmed by the medical records in evidence).

19. [71]

    He gave further evidence on this topic in his affidavit dated 1 March 2024. He deposed that in around February 2012, not long after Lily had died, he discussed with Peter making a will for him and that Peter said he wanted it done through the NSW Public Trustee and left it to the plaintiff to organise this. He deposed that in or around April 2012 he called the Public Trustee at Burwood and was told by a lady at the office that ‘they were booked months ahead to make an appointment’. He deposed that he then suggested to Peter that it would be quicker to make an appointment with a solicitor, but Peter did not want his will done through a solicitor although he did not discuss with Peter why that was.

20. [72]

    His explanation in his affidavit dated 1 March 2024 for why he did not progress the matter further with the Public Trustee is as follows (emphasis added):

21. [73]

    The last sentence indicates the significance of the ‘deal’ to the approach taken to the making of a will for Peter and the belief, at least of the plaintiff, of the absence of any close family who might make a claim on Peter’s estate. The plaintiff’s evidence, which I accept, is that he was not aware that Peter had a cousin living in Adelaide (the defendant) until around September 2013 after Peter’s second stroke. In relation to the ‘family commitments’ that kept him from organising a will, the plaintiff identified this in cross examination as his commitment to looking after his teenage children. By April 2012 his son, Martin, was 18 years old and his daughter, Nada, was 13 and was still going to high school.

22. [74]

    He said in cross-examination that the reason he didn’t make an appointment with the Public Trustee in April 2012 was ‘because at that time Lily got sick, and events prevented me to concentrate on making a will’ (Tcpt, 31 March 2025, p27(1)). However, Lily’s illness is not an explanation as Lily had died in February 2012, although this may be a reference to Peter’s significant grief following her death not long before which he refers to in his affidavit evidence.

23. [75]

    His evidence in cross-examination for why he did not encourage the plaintiff to make a will when Mr Weissel suggested it at the conferences he attended with Peter in March 2012 was as follows (Tcpt, 31 March 2025, p 28):

24. [76]

    After this exchange, the plaintiff gave the following evidence in response to a question from me (Tcpt, 31 March 2025, p 29):

25. [77]

    The reference to there being ‘no other beneficiaries’ is related to earlier evidence he gave in cross-examination to the effect that he did not consider that a will was necessary (Tcpt, 31 March 2025, p 22):

26. [78]

    The only other evidence the plaintiff gave of his understanding that a will was not necessary based on what he ‘learnt from Peter’ is the statement attributed to Peter in the paragraph from his affidavit dated 1 March 2024 set out at [72] above on which he was not challenged in cross examination.

27. [79]

    He then gave the following further evidence in cross-examination regarding the absence of a will to reflect the July 2010 conversation (Tcpt, 31 March 2025, p 23):

28. [80]

    I do not regard the plaintiff’s acknowledgement in this evidence that he could not have stopped Peter from making a will in favour of ‘someone else’ as significant, one way or the other, as it merely recognises what is commonly known that wills are revocable.

29. [81]

    The plaintiff’s evidence on this topic needs to be considered in light of the fact that Peter’s failure to make a will to reflect the ‘deal’ made in the July 2010 conversation is only of significance in the period from that time up to 15 July 2013 when Peter had his second stroke which impaired his ability from that time to make a will.

30. [82]

    I accept the plaintiff’s evidence that Peter wanted the will to be prepared by the Public Trustee and his explanation for why he did not progress the matter with the Public Trustee being that he saw no urgency during this period to do so for the various reasons he gave in his evidence. I do not interpret his evidence in cross examination as detracting from what he said in his affidavit dated 1 March 2024 that the absence of a will did not matter to him in that period because he understood that Peter did not have any close family who would otherwise claim his estate and he understood from his discussions with Peter that ‘I would not have any problems as we had made a deal and had shaken hands on it’.

31. [83]

    The cross-examination of the plaintiff returned to the topic of Peter’s lack of a will at the time of the conversation on 14 July 2013, and the following exchange occurred (Tcpt, 31 March 2025, p 34):

32. [84]

    I do not regard the plaintiff’s acceptance in this evidence that he knew in July 2013 that ‘it was not guaranteed’ as detracting from his earlier evidence. It is explained by the subsequent comment, possibly a little flippant but reflecting human experience, that nothing in life is guaranteed. Also, it is qualified by what comes immediately before, being that ‘I was the only one who deserved morally and legally the estate’.

33. [85]

    The plaintiff’s evidence regarding the care he provided to Peter and Lily has been set out earlier.

34. [86]

    The claimed detriment also includes that his responsibilities to Peter and Lily meant he had less time to devote to his responsibilities to his own children who were then teenagers. Martin was living principally with the plaintiff, before his duties to Peter and Lily became so extensive that in early 2013 Martin said he wanted to move to live with his mother. He deposed that: ‘As I had to help raise my two teenage children and look after my friends (Peter and his wife Lily) for a long period of time. I had very little time for myself…’

35. [87]

    As a result of an earlier marriage, the plaintiff also had children and grandchildren in Queensland. The grandchildren were born in about 2007 and 2011. He deposed to cancelling a trip to Brisbane over the Christmas holidays in 2011 because of Lily’s health issues. He deposed that in 2016 ‘I would have liked to have moved to Brisbane to be close to my grandchildren but I had to stay in Sydney because of the deceased’. The plaintiff moved to Queensland in November 2019, where he still resides.

36. [88]

    The plaintiff also said in cross examination that he retired early in September 2011, at the age of 62, so that he could ‘honour my deal’ (Tcpt, 31 March 2025, p 39).

37. [89]

    I accept the plaintiff’s evidence on these matters.

38. [90]

    No attack was made on the credit of the plaintiff. Rather, the focus of the cross-examination of the plaintiff was on establishing various matters which it was submitted would lead to the conclusion that the plaintiff’s evidence regarding the conversation in July 2010 relied on for the First Promise was a reconstruction of the conversation rather than the plaintiff’s actual recollection of it. I will deal with those matters below.

39. [91]

    In so far as the plaintiff’s evidence is concerned, although he appeared to be a relatively unsophisticated witness he gave his evidence in a direct and believable manner. While I recognise that he has a degree of self-interest, particularly in relation to his evidence of his conversations with Peter, I found his answers to questions to be responsive and frank. He was in my view a reliable and honest witness.

40. [92]

    Mr Barukic made one affidavit dated 1 March 2024 and was cross-examined.

41. [93]

    He deposed that his occupation is that of a painter and he first met the plaintiff at the Tulloch Avenue property in the winter of 2011 after having been recommended to the plaintiff by the plaintiff’s neighbour after doing a painting job for her.

42. [94]

    He deposed that he undertook painting work for Peter at both the Tulloch Avenue property for about three weeks and at the Fremont Street property for about one week, in the winter of 2011.

43. [95]

    He deposed that during the period when he was painting the Tulloch Avenue property in the winter of 2011, he was having coffee and chatting with Peter and the plaintiff when Peter said to the plaintiff words in the Croatian language to the effect: ‘when I pass away, I am giving all that I own to you, Zeljko. And if I go first, Zeljko, I want you to look after Lily’. Mr Barukic also deposed that after this was said he had the following exchange with Peter:

44. [96]

    Mr Barukic also deposed that he had a conversation with Peter when he was working on the Fermont Street property in which he told Peter that he could not do the work because of a problem with stray cats occupying the property, in the course of which Peter said to him: ‘If you cannot do it it’s okay. It’s going to be Zeljko’s house anyway after I’m gone.’ He corrected this evidence in his examination in chief saying that the conversation occurred at the Tulloch Avenue property rather than the investment property, so that the ‘house’ being referred to was Peter’s home and not the investment property.

45. [97]

    Mr Barukic also deposed that from his observations whilst undertaking the work at Peter’s properties that the relationship between Peter and the plaintiff was like father and son or brothers, and that the plaintiff was doing everything for Peter and Lily.

46. [98]

    Also in evidence is a statutory declaration which Mr Barukic made on 11 February 2014 and provided to the plaintiff at that time, which states:

47. [99]

    Mr Barukic was asked in cross-examination how he came to sign the statutory declaration. His evidence was that the plaintiff approached him in around February 2014 when he was doing some painting work at the property of the plaintiff’s ex-wife and requested him to provide a ‘stat dec’ setting out a conversation that he had with Peter. His evidence was that while the plaintiff told him the reason for this request he could not recall what the reason was. His evidence was that the plaintiff wrote a piece of paper what the statutory declaration was to contain and provided that to him, that he then arranged for it to be typed up by a friend (the person who witnessed his signature on the statutory declaration) which he then signed (Tcpt, 1 April 2025, p 58(13)-(46)).

48. [100]

    No attack was made on the credit of Mr Barukcic. However, I accept Mr Chapple’s submission that in view of the way in which Mr Barukcic’s statutory declaration was prepared and the difference between that document and his later affidavit, little weight can be placed on his evidence as to his conversation with Peter in 2011 which is part of the evidence relied on for the Second Promise.

49. [101]

    Mr Teklic made two affidavits, one on 26 February 2018 and the second on 1 March 2024, and was cross-examined.

50. [102]

    He deposed that he emigrated from Croatia to Australia in 1978 and became a friend the plaintiff in around 1980 as they shared the same Croatian background. He is a builder and was asked by the plaintiff to help him do some work to renovate a room at the Tulloch Avenue property for Peter shortly after Lily’s death. In his first affidavit he said this occurred in about March 2012 but in the second affidavit he said it was in April/May 2012. He agreed and the plaintiff introduced him to Peter at the Tulloch Avenue property. This was the first time he met Peter.

51. [103]

    The work took a few weeks to complete and during that time Mr Teklic became friendly with Peter, often chatting with Peter and the plaintiff over coffee. In his first affidavit he deposed to a conversation which is the basis for one of the pleaded promises, in which, after Peter handed a spare set of keys to the Tulloch Avenue property to the plaintiff, Peter said words to the effect:

52. [104]

    In his second affidavit, made six years later, he confirmed the truth of his first affidavit and then gave a different version of this conversation as well as evidence of a number of other conversations not mentioned in the first affidavit.

53. [105]

    Regarding the conversation referred to above he gave more extensive evidence about it in his second affidavit, stating that it occurred about two weeks after he first met Peter. I infer the conversation is likely to have occurred in April 2012. He gave the following evidence about the conversation in his second affidavit:

    1. (1)

       He saw Peter hand some keys to the plaintiff and then heard him say words to the effect: ‘You have been taking care of both of us when no one even cared about us. This will all be yours anyway.’

    2. (2)

       He deposed that shortly afterwards, when the plaintiff had gone into the kitchen to make coffee for everyone, Peter said to Mr Teklic:

    3. (3)

       When the plaintiff returned with the coffees, Peter turned to the plaintiff and said words to the effect: ‘This will all be yours’.

54. [106]

    Mr Teklic deposed to another conversation around the same time regarding the making of a will by Peter as follows:

55. [107]

    Mr Teklic deposed to hearing two other statements by Peter prior to his second stroke in July 2013, regarding his testamentary intentions to the effect: ‘Zeljko has told me that he doesn’t care much for money but I’m still leaving it all to him’ and ‘don’t waste your money on fixing the driveway because you’ll be spending your own money’.

56. [108]

    Mr Teklic deposed to a conversation he had with Peter and the plaintiff as follows:

57. [109]

    Mr Teklic also deposed that Peter ‘always’ used to say after the death of Lily that he had no one in Australia except Zeljko and ‘always’ used to refer to the plaintiff as ‘my Zeljko’.

58. [110]

    The cross-examination of Mr Teklic focused on the two different versions he put forward of the conversation in April 2012. He was not able to explain how the two versions of the conversation were consistent with each other (the first version gives as the reason for the gift as what the plaintiff will do in the future, whereas the second version gives the reason as what the plaintiff has done in the past), and maintained that they were the same. Mr Teklic ultimately accepted that his understanding of what Peter had said to the plaintiff was ‘limited to a promise that what Peter had would be Zeljko’s’ (Tcpt, 31 March 2025, p 70(21)).

59. [111]

    Bearing in mind the vagaries of memory and that the second version of the conversation in April 2012 was contained in his second affidavit made some 12 years after the conversation, I do not regard Mr Teklic’s evidence of the conversation in that affidavit as reliable. I accept his evidence that the conversation was to the effect stated in his first affidavit set out at [103] above, which corroborates the plaintiff’s evidence that Peter made a promise to the plaintiff that he would leave his estate to the plaintiff on his death.

60. [112]

    No attack was made on the credit of Mr Tecklic. The focus of his cross-examination was on the two different versions of the conversation he had with Peter in April 2012 relied upon to corroborate the Third Promise. He also appeared to be a relatively unsophisticated witness but he gave his evidence in a direct and believable manner and I also regard him as a reliable and honest witness.

61. [113]

    Mr Timothy Weissel is the solicitor for the plaintiff in these proceedings. He made one affidavit about meetings he had with Peter in 2012. He was cross-examined.

62. [114]

    Mr Weissel first met Peter on 13 March 2012, in a meeting arranged by the plaintiff for the purpose of discussing Lily’s estate. The plaintiff was present during the meeting. At this meeting Mr Wiessel explained to Peter that it would be more expensive to administer Lily’s estate because she died intestate having not made a will. He also asked Peter at the meeting if he had a will and when told that he did not, said to Peter: ‘It would be a good idea if you had a will so that letters of administration aren’t needed for your estate you die.’ Mr Wiessel explained to Peter that if he did not have a will his estate would pass to his next of kin. His recollection was that Peter said in response: ‘I’ll think about it.’

63. [115]

    Mr Weissel deposed that he met with Peter again two days later, on 15 March 2012, also accompanied by the plaintiff, and that Peter gave him instructions to prepare a contract for the sale of Peter’s investment property at Concord West.

64. [116]

    Mr Weissel’s evidence in cross-examination was that at this meeting, or at a later meeting on 4 June 2012 following the settlement of the sale of the property, Mr Weissel again suggested to Peter that he should make a will and that Peter’s response was the same as before.

65. [117]

    Mr Weissel deposed that he saw Peter again on two or three further occasions for the purpose of obtaining and the signing of documents in relation to the administration of Lily’s estate and the sale of the investment property, and that each occasion Peter was accompanied by the plaintiff. His last meeting with Peter was on 2 July 2012.

66. [118]

    Mr Weissel also deposed that Peter did not demonstrate any incapacity or behaviour that caused him to doubt Peter’s cognitive ability.

67. [119]

    He said in cross-examination that he could not recall any mention during any of the meetings he had with Peter of any ‘deal’ between Peter and the plaintiff (Tcpt, 31 March 2025, p 43(28)).

68. [120]

    No attack was made on Mr Weissel’s evidence and I accept it.

69. [121]

    Mr Kenneth Wright was the accountant for Peter from around October 2012. He made one affidavit and was cross-examined.

70. [122]

    Mr Wright deposed that he prepared income tax returns for Lily’s estate in October 2012 and prepared income tax returns for Peter for the years ended 30 June 2013 to 30 June 2017. For this purpose Mr Wright met with Peter on around three occasions, each time with the plaintiff present.

71. [123]

    Mr Wright said in cross-examination that he could not recall Peter ever discussing making a will, or that he was planning to leave his estate to the plaintiff or Peter ever saying that he had a deal with the plaintiff that the plaintiff would look after him and in return Peter would leave his estate to the plaintiff.

72. [124]

    No attack was made on Mr Wright’s evidence and I accept it.

73. [125]

    Dr Sulojini Balakrishnan was the general practitioner who treated Peter from around July 2010 until 6 September 2013. She made one affidavit and was not cross examined. She deposed that throughout the period that Peter was her patient he and his wife Lily were being supported and cared for by their friend, the plaintiff; that the plaintiff accompanied Peter to every consultation with her and assisted with interpretation and helped coordinate Peter’s medical care, including transporting him to medical appointments, booking specialist medical appointments and supervising his medication. She said that during the time she spent with them both, it was evident that the plaintiff had offered a significant amount of emotional and social support to Peter.

74. [126]

    Ms Tracy Dennett was employed at Concord Hospital as a clinical nurse specialist and nursing unit manager during the period that Peter and the plaintiff worked there. She made one affidavit and was not cross examined. She deposed that she met Peter and the plaintiff at the Hospital in about 1990, and that they both worked in the department she managed until her retirement. She also saw them from time to time when they visited the Hospital together after their respective retirements and whilst out shopping in Concord. She deposed that ‘from my discussions, interactions and observations, Peter and Zeljko had a long-standing friendship [and]… were drawn together by a common identity as they spoke the same language and were immigrants from Croatia’. She deposed that later in their relationship she observed when they met occasionally that the plaintiff had assumed a caretaking role for Peter, and that their relationship was based upon friendship and as Peter became older, frailer and more infirm, the plaintiff was ‘there for him’.

75. [127]

    The plaintiff also tendered, without objection, a letter from Ms Kristina Kovacic who was the deputy care manager at the Cardinal Stepinac Village dated 4 December 2017 (which formed part of the evidence before the Guardianship Tribunal). This states relevantly:

76. [128]

    I regard all this evidence as corroborating the plaintiff’s evidence of the significant care he provided to Peter from 2010 until his death in 2017.

77. [129]

    I accept the evidence of the plaintiff’s other witnesses, none of which was challenged.

78. [130]

    The defendant made two affidavits, the first dated 7 November 2023 which was her affidavit as administrator of Peter’s estate and the second dated 7 May 2024 dealing with her relationship with Peter and replying to the evidence of the plaintiff’s witnesses.

79. [131]

    She was 93 years old when cross-examined and around 92 years old when she made her second affidavit which was the only one relevant to the issues in these proceedings.

80. [132]

    She gave evidence in cross-examination that she had visited Sydney about three times since she arrived in Australia in 1952 and that Peter had visited her in Adelaide about two times in that period. She also gave evidence that she spoke to Peter on a regular basis on the telephone about every week. However, the records from Telstra in evidence for her home telephone number for the period March 2007 to March 2009, and Peter’s home telephone number for the period May 2004 to May 2008 contained no reference to any calls between them in those periods. She could not explain this in cross-examination and when it was put to her that she did not keep in touch by telephone every week responded: ‘I don’t remember really’.

81. [133]

    It was apparent from the defendant’s cross-examination that she had great difficulty remembering events in the past and this was particularly so in the answers she gave in her cross-examination on how her affidavit dated 7 May 2024 came to be prepared. It is sufficient to extract the following parts of the cross-examination:

82. [134]

    Later she said that drafts of the affidavit were brought to her ‘usually [at] night time between 7 and 8’ and then the following exchange occurred:

83. [135]

    In light of this evidence as to how the affidavit of 7 May 2024 came to be prepared and that it was clear from her cross-examination that she had a very poor memory and great difficulty in providing a coherent response to any of the questions she was asked, I do not give any weight to her evidence.

The deceased

1. [136]

   It is necessary to start with some observations regarding Peter as he is central to the dispute. Peter was born in Croatia on 30 August 1932 and married Lily in Croatia in about 1956 and came to Australia shortly afterwards. They had one child, Robert, who died tragically 1988 at the age of 31 as mentioned earlier which affected him for the rest of his life. Peter and his wife were lonely with very few friends, partly due to his wife’s schizophrenia which meant that Peter was her prime carer: see [14] above. The loneliness is also explained by their grief over their only son’s early death. The plaintiff’s evidence, which was uncontested, was that in his view Peter never came to terms with his son’s death and was distraught about his loss for the rest of his life.

2. [137]

   Peter was frugal. This is established by the evidence of the plaintiff and Mr Teklic including various statements he made to the plaintiff and Mr Teklic that he did not want to spend money unnecessarily on improving the Tulloch Avenue property, and that he amassed a large estate from investments in both property and shares despite not being in highly paid employment.

3. [138]

   The plaintiff was the only close friend of Peter upon whom he came increasingly to rely from 2010 for emotional support and care. This is confirmed by the evidence of Mr Teklic, Ms Dennett and Dr Balakrishnan, Peter’s GP, who observed their relationship over a lengthy period and the small attendance at the funerals of Lily and Peter.

4. [139]

   The closeness of their friendship is indicated by (a) the evidence of Mr Teklic that Peter referred to the plaintiff as ‘my Zeljko’, (b) the plaintiff’s evidence of a conversation between Peter and the plaintiff when they visited Robert’s grave in 2009 during which Peter said to the plaintiff: ‘Where will you be buried? There is space next to Robert’s grave which you can have if you want’; and (c) the evidence of Dr Balakrishnan, Ms Dennett and the deputy care manager at Cardina Stepinac Village referred to earlier.

5. [140]

   Peter did not regard the defendant, his cousin who lived in Adelaide, as close family. It appears that they spent some time together as young children in Croatia but they did not have any significant contact after they both moved to Australia in the 1950s. This is confirmed by three matters.

6. [141]

   First, they had face-to-face contact on only five occasions in the 65 years they were living in Australia, she in Adelaide and he in Sydney. The defendant’s evidence was that she visited Sydney about three times and Peter had visited Adelaide about twice and they had not met anywhere else in that period.

7. [142]

   Secondly, while the defendant gave evidence in her affidavit of weekly phone calls to Peter, I have referred earlier to the difficulties with her evidence. Further, it is not supported by the telephone records in evidence which show there were no calls on the defendant’s telephone either to or from the defendant’s Adelaide telephone number in the relevant periods.

8. [143]

   Thirdly, Peter said to the plaintiff that he had no family in Australia and the plaintiff did not become aware of the defendant until September 2013 when she telephoned him after she had contacted the nursing home to talk to Peter and was told that he could not speak on the telephone. That Peter made this statement to the plaintiff is corroborated by two matters: the evidence of Mr Teklic that Peter made a similar statement to him in 2012 and also the list referred to at [21] above does not include the name of the defendant.

9. [144]

   After his second stroke in July 2013, Peter suffered mental impairment, evidenced by several pieces of evidence, including a letter written by the staff specialist geriatrician at Concord Hospital dated 14 August 2013 to the Public Guardian which stated: ‘as a result of the stroke, deficits have been noted in his cognitive function with deficits in memory, language and speech, comprehension and executive function’. It was for this reason that it was necessary that Peter move into the Cardinal Stepinac Village after his second stroke so that would be provided with the high level of care he needed.

Whether the pleaded promises were made

1. [145]

   The plaintiff submitted that Peter made a promise to him to the effect that if the plaintiff was to care, assist, provide companionship and otherwise be there for Peter and Lily, he would leave him his entire estate. That is said to be the substance of the promise made in the conversation at the Top Ride Shopping Centre in July 2010 (being the First Promise). A reasonable person in the position of the plaintiff would have understood a promise in these terms to have been Peter’s intention. The promise was then reiterated on three further occasions (being the Second, Third and Fourth Promises).

2. [146]

   The plaintiff submitted that the promise in these terms was clear and unequivocal and this is so notwithstanding that it was contingent on future events, in particular that the plaintiff survived Peter and that Peter survived Lily. Those contingencies are not relevant to the claim based on proprietary estoppel because when the court looks at the matter upon Peter’s death, each of those conditions was met. The need for the promise to be unequivocal is not inconsistent with there being contingent possibilities that might affect whether the promise can ultimately be given effect and/or the value of what might be the subject of the promise at a later time.

3. [147]

   The defendant’s submissions focused on the First Promise on the basis that it was the only evidence in the proceeding that, if accepted, would establish that Peter must have expected or intended that the plaintiff would rely on the promise; the other promises relied on were no more than statements of testamentary intention. It was submitted that since Peter is the only person who can deny the plaintiff’s evidence, the court must scrutinise the evidence closely: Ashton v Pratt (No 2) at [18]. When this was done, it was submitted that the court could not accept the plaintiff’s evidence that a ‘deal’ was reached between him and Peter in the terms pleaded in the conversation in June 2010 for essentially two reasons.

4. [148]

   First, it was said that there is a degree of inconsistency in the plaintiff’s evidence of the conversation because his evidence of the conversation in his affidavit was that Peter said ‘if you continue to support and care for Lily and me until my death I will leave you all my possessions’ whereas he recognised in his later affidavit dated 5 July 2024 at [23] that Peter always wanted his estate go to Lily if he died first. Recognising this inconsistency in cross examination, he corrected the evidence in his affidavit as to what was said in the conversation in July 2010 by saying that ‘until my death’ should be read as ‘until our deaths’.

5. [149]

   Secondly, it was submitted that there are four matters weighing against the court accepting the plaintiff’s evidence as to what was said in the July 2010 conversation and leading to the conclusion that his evidence of the conversation is a reconstruction. These are: (a) the failure of Peter and the plaintiff to document their ‘deal’; (b) the failure by Peter to refer to the ‘deal’ in his dealings with third parties; (c) the failure by Peter and the plaintiff to take any steps to execute a will to give effect to the ‘deal’; (d) the failure of the plaintiff to refer to the ‘deal’ in his application to the Guardianship Tribunal.

6. [150]

   The defendant submitted that once it was accepted that the July 2010 conversation was a reconstruction, it followed that at all times the plaintiff had no more than a hope that Peter’s estate would go to him.

7. [151]

   I will deal first with the defendant’s submission as to why the court should not accept the plaintiff’s evidence that a ‘deal’ was reached with Peter in the conversation in July 2010.

8. [152]

   As to the first matter concerning the suggested inconsistency in the plaintiff’s evidence, I have set out the relevant evidence regarding the July 2010 conversation and the reasons why I do not accept that there is any relevant inconsistency in the plaintiff’s evidence at [58]-[64] above.

9. [153]

   Nor do I accept that the submission that the subsequent conduct of the plaintiff and Peter in relation to the four matters raised by the defendant lead to the conclusion that no ‘deal’ was reached in the July 2010 conversation. I will deal with each in turn.

10. [154]

    Lord Walker made the following observation in Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752; [2008] UKHL 55 at [68]:

11. [155]

    Lord Neuberger made similar observations in Thorner v Major at [97]. Both passages were quoted with approval by Meagher JA (Macfarlan JA agreeing) in DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 at [57]-[58].

12. [156]

    The relationship between Peter and the plaintiff was quasi-familial in nature and there is no evidence to suggest that either of them had any commercial experience. There is no reason to expect that either of them would contemplate documenting the ‘deal’ in a formal contract.

13. [157]

    The defendant submitted that the fact that the plaintiff sought a statutory declaration from Mr Barukic in 2014 ‘begs the question’ why he didn’t seek to document the ‘deal’ with Peter before that time. I do not accept that submission because this occurred after Peter’s second stroke in July 2013 which meant that it was no longer possible for the plaintiff to arrange for Peter to make a will. This change in circumstances explains why the plaintiff thought it necessary in 2014 to seek some corroboration of what Peter had said to him previously about his testamentary intentions.

14. [158]

    The focus of this submission is on Peter’s failure to refer to the ‘deal’ in the meetings he had with Peter’s solicitor, Mr Weissel, in the period March to June 2012 or in his meetings with his accountant, Mr Wright.

15. [159]

    In my view, Peter’s failure to raise the ‘deal’ with Mr Weissel or Mr Wright is explicable on the same basis as his failure to seek to document the deal. Given the nature of their relationship, I do not regard it as surprising that the ‘deal’ was not mentioned. In this respect, the facts are similar to those in Kramer v Stone itself. One of the arguments at trial which was said to weigh against the existence of the promise was the absence of any evidence that either of the testators, Dr Harry and Dame Leonie as to the respective representations, had mentioned their testamentary intentions to persons other than the promisee. The trial judge (Stone v Kramer [2021] NSWSC 1456 at [211], [213], [222]) considered that this factor was ‘relatively neutral’ where others, such as the testators’ daughters, had shown no particular interest in operating the farm and on the occasions where Dr Harry and Dame Leonie did discuss their testamentary intentions with them, those discussions involved information which related to them ‘and nothing more’. That finding was upheld on appeal: Kramer (CA) at [140], [150]-[151]. Thus, in circumstances where the evidence shows that Peter was a person with few friends and connections, who disliked working with solicitors and had a habit of ‘doing things his own way’ (see [75] above), I consider it unremarkable that he did not refer to the ‘deal’ with others.

16. [160]

    Further, in so far as it might be said that it is surprising that the plaintiff did not raise the ‘deal’ with Mr Weissel in the meetings which he attended with Peter in which the making of a will by Peter was discussed, this was addressed by the plaintiff in the evidence he gave set out at [76] above. I accept his explanation for why he did not raise the ‘deal’ in those discussions and consider that his evidence needs to be considered in light of the fact that the meetings with Mr Weissel occurred shortly after Lilly’s death which would make it insensitive for the plaintiff to have raised the ‘deal’ at that time.

17. [161]

    I have dealt with the evidence regarding the failure of Peter to make a will earlier in these reasons. It is not possible to know why Peter did not make a will. Importantly, there is no evidence that he had changed his mind after July 2010 and decided not to go through with the ‘deal’; rather the evidence is to the contrary given the further statements Peter made affirming the promise particularly the one made on 14 July 2013. Further, a reasonable explanation for why Peter did not make a will after that is that his second stroke prevented him from doing so.

18. [162]

    In this regard, the present case is analogous to Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100 where the claimant brought a claim in proprietary estoppel in circumstances where he had cared for the deceased, a widow with no children, for many years in reliance on promises by her including that ‘this will all be yours one day’ or words to that effect. She died intestate having failed to make a will. The claim succeeded despite several attempts by her bank manager to get her to make a will. As recorded in the judgment of Aldous LJ at [14]:

19. [163]

    The Court of Appeal did not disturb these findings with the issue on appeal being the appropriate relief.

20. [164]

    I do not consider his failure to mention the deal to the Guardianship Tribunal as a factor weighing against the existence of the promise. The situation is akin to that in Tadrous v Tadrous [2012] NSWCA 16, where the Court of Appeal (at [36]) upheld the finding at trial that it was not material that the plaintiff did not mention the promise to other members of her family, in circumstances where the parties were known to keep certain things to themselves, and there was no reason why others needed to know of the promise. Similarly, in circumstances where the proceedings before the Guardianship Tribunal were only about whether the plaintiff could be appointed as his guardian and financial manager, it is not clear to me why the mention of the ‘deal’ would be necessary in view of other unchallenged evidence (see above at [127]) which established the plaintiff was already Peter’s primary carer. As such, I do not consider it unusual for him to not have brought up the deal in those proceedings.

21. [165]

    Further, while the plaintiff did not mention to the Guardianship Tribunal that he had made the ‘deal’ with Peter in 2010, the Tribunal’s decision records that ‘he gave evidence that some time ago Mr Kastropil gave him a box of documents; telling him that ‘if anything goes wrong, it is all yours’. The transcript of the proceedings before the Tribunal is not in evidence. I do not regard it as significant that he did not volunteer to the Tribunal that he had earlier made the ‘deal’ particularly as the handing over of the box and the statement that ‘if anything goes wrong, it is all yours’ was the most recent statement by Peter of his testamentary promise, which reflected the previous ‘deal’.

22. [166]

    For these reasons, I accept the plaintiff’s evidence as to the conversation between him and Peter in July 2010.

23. [167]

    It is appropriate to deal with the first two requirements for proprietary estoppel based on a promise stated in Kramer set out at [34] above together. As noted at [35] above, in order to determine whether a promise is sufficiently clear and unequivocal it is necessary to ask whether it is reasonable for the promisee to have interpreted the promise in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the promisee to rely. In doing so, the court has regard to the context in which the promise was made and gives it the natural and ordinary meaning that it would convey to a normal person: Galaxidis at [86] per Tobias JA (Giles and Hodgson JA agreeing).

24. [168]

    I have set out earlier the evidence regarding the July 2010 conversation. The relevant context in which Peter made the statement ‘If you continue to support and care for Lily and me until my death I will leave you all my possessions’ is as follows:

    1. (1)

       the plaintiff been a close friend of Peter and Lily for around 12 years at the time of the conversation, as evidenced by the considerable monetary gifts made to the plaintiff in the period 2005 to 2009;

    2. (2)

       from around 2005 the plaintiff provided care and support to Peter and Lily and by 2010 they had become increasingly reliant on him due to their ages (78 and 73 respectively), serious health issues and lack of other close friends or family in Sydney;

    3. (3)

       in July 2010 Peter was recovering from his first stroke which had impaired his vision and diminished his ability to care for Lily, who was entirely dependent on him due to her mental illness, and naturally he looked to the plaintiff as the only person who could trust to provide the assurance he needed both as to their future care while he was alive and Lily’s future care if he should predecease her.

25. [169]

    In light of this context it would have been natural for Peter and the plaintiff to have understood at the time of the July 2010 conversation that Peter made a promise to the plaintiff that if the plaintiff continued to support and care for both him and Lily until Peter’s death, Peter would leave him ‘all his possessions’, subject to the condition that the gift would only be made if Peter survived Lily.

26. [170]

    In my view, that was a clear and unequivocal promise as it was reasonable for the plaintiff to have interpreted the statement made by Peter in the July 2010 conversation in that way and it was reasonable for him to rely on it by providing care and support to Lily and Peter which he did over the period from July 2010 to November 2017. Further, in my view, a reasonable person in Peter’s position must have intended that the plaintiff would rely upon the promise in that way, and I infer that this was Peter’s intention when he made it.

27. [171]

    In reaching this conclusion I have borne in mind the inherent revocability of testamentary promises, which the plaintiff recognised in his cross examination. However, I am satisfied that it was reasonable for the plaintiff to have understood in the period from the July 2010 conversation until Peter’s death in November 2017 that the promise made to him by Peter in that conversation as to the destination of Peter’s estate on his death and the subsequent reiterations of it, in the circumstances in which it was made and reiterated was an irrevocable promise by Peter because he thought that he and Peter had made a deal and shaken hands on it: cf Kronenberg at [146]-[147].

28. [172]

    Further, where the circumstances make it clear, as they do in the present case, that the promise was more than a statement of present (revocable) intention and is intended to be binding, the inherent revocability of testamentary dispositions is irrelevant because it is the promisee’s detrimental reliance on the promise which makes it binding under the principle of proprietary estoppel: Gillett v Holt [2001] Ch 210 at 227-228; see also Sidhu at [58] quoted below.

29. [173]

    It is clear that a promise does not cease to be clear and unequivocal simply because it is conditional or subject to limitations: Slade v Brose [2024] NSWCA 197 at [206] per Ward P (White and Stern JJA agreeing).

30. [174]

    Also, it is recognised that the fact that the relevant promise when made was subject to a condition or contingency is not an obstacle to a claim in proprietary estoppel because, in contrast to the approach taken to a promise relied on as creating a contract, ‘equity looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept’; hence, it would be possible for the expectation, especially when it is engendered during an extended period of time, to become firmer over that period: Evans v Evans [2011] NSWCA 92 at [107]-[110] and authorities there cited.

31. [175]

    As Lord Walker said in Thorner v Major speaking of the contingencies to which a testamentary promise may be subject at [65]: ‘But it is unprofitable, in view of the retrospective nature of the assessment which the doctrine of proprietary estoppel requires, to speculate on what might have been.’ The same can be said for what the position might have been had the condition here (as to Peter surviving Lily) not been met.

32. [176]

    As the plurality said in Sidhu at [58] (footnotes omitted):

33. [177]

    Thus, even if there was uncertainty as to the scope of the reasonable expectation before Lily’s death given the condition to which the promise was originally subject, ultimately that does not matter because Lily did in fact pass away before Peter and the plaintiff continued to provide the care and support which he had promised to Peter for a further 5 years after Lily’s death, with Peter on at least two occasions after Lily’s death having reiterated the promise he had previously made in the July 2010 conversation. For the reasons given below, I am satisfied that he did so in reliance on that promise.

Reliance

1. [178]

   The plaintiff submitted that reliance is made out because the plaintiff acted in exactly the manner that was expected of him by Peter when he made the promise in the July 2010 conversation, in that he embarked on a course of conduct with dedication, purpose and rigour that is not otherwise explainable. In particular, it is likely that he would have spent more time with his children and his grandchildren in Brisbane and moved closer to them, or would have devoted more time for himself in the period after 2011 when he retired.

2. [179]

   The defendant submits that reliance is not made out for a number of reasons including that the plaintiff was providing assistance to Peter and Lily long before the July 2010 conversation; the plaintiff received substantial gifts from Peter and Lily and his gratitude for those gifts provides an explanation for his conduct assisting them thereafter; and the plaintiff accepted in his oral evidence that he helped Peter and Lily because they with his friends.

3. [180]

   I am satisfied on the evidence that the considerable amount of time and effort the plaintiff spent in caring for Peter and Lily after the promise made in the July 2010 conversation was in part out of his friendship for them (and no doubt gratitude for the gifts he had made to him previously). But it was also because of the promise that Peter had made in the July 2010 conversation confirmed by the subsequent reiterations of it in 2012 and 2013. In particular, the degree of care and support which he provided to them from July 2010 went far beyond what would be expected of a friend, even one who had in the period from 2005 to 2009 received significant gifts from Peter and Lily.

4. [181]

   While the plaintiff received a gift of $10,000 from Peter in June 2012, without much explanation, I regard that as explicable as his gratitude for the plaintiff managing the sale of Peter’s investment property (Tcpt, 31 March 2025, p 30(2)) and not to the care and support that he had provided to Peter and Lily.

5. [182]

   I also accept that his decision not to move to Queensland earlier than he did to be close to his grandchildren there and to retire early is some evidence of ‘life changing decisions’ of a personal nature with irreversible consequences which are referable to the promise made to him by Peter: cf Moore v Aubusson at [411].

6. [183]

   I consider that if the plaintiff had been told in July 2010, or subsequently, that the promise made by Peter would not be kept, he would not have undertaken the care and support he provided to Peter and Lily after that time to the same extent, and he would have spent more time on personal matters including the care of his children in Sydney and spending more time in Brisbane with his grandchildren. In addition, his decision to retire early in 2011 seems explicable only by reason of his commitment to caring for Peter and Lily given his evidence regarding his relatively insecure financial circumstances.

7. [184]

   Hence, I find that the promise was a contributory cause of the care and support which the plaintiff provided to Peter and Lily after the July 2010 conversation and in reliance on the promise which Peter made.

Detriment

1. [185]

   The plaintiff submitted that the detriment in the present case was substantial and was of the type that is life changing and irreversible. The vast amount of time that he had to spend caring for Peter and Lily meant that he had to neglect his parental obligations or personal preferences, including missing out on being close to his grandchildren (in their early years).

2. [186]

   The defendant did not put in issue the extent of the care and support which the plaintiff provided to Peter and Lily. The defendant did submit that the ‘life changing decisions’ were not as significant as suggested. In relation to the plaintiff’s decision to retire early in 2011, it was submitted that it was difficult to see how in light of his responsibilities to his two children he could have continued to work after 2011 and his evidence was that he would have retired in any event when he reached 65 in 2014. In so far as the postponement of his move to Queensland is concerned, that sits uncomfortably with the fact that his son Martin lived with him until around 2013 and his daughter Nada lived with him until 2016.

3. [187]

   In my view, the plaintiff has established detriment in the sense of prejudice or disadvantage by reason of his change of position in reliance on the promise, if it were to be departed from. As indicated earlier I am satisfied that he would not have undertaken care and support for Peter and Lily to the same extent if the promise had not been made and reiterated to him by Peter after Lily’s death.

4. [188]

   I also accept the plaintiff’s evidence that his retirement in 2011, rather than 2014, was as a result of the promise. There is no basis in the evidence for concluding that his responsibility to care for Martin and Nada influenced his decision to retire in 2011, particularly as his former wife, the mother of Martin and Nada, shared that parental responsibility and in the case of Nada she lived principally with her mother.

Relief

1. [189]

   For the above reasons, in my view the plaintiff has made out his claim for proprietary estoppel. As noted at [48] above, the usual remedy would be to require the party estopped (in this case Peter’s estate) to make good the encouraged expectation. However, the parties accepted that while there is no positive requirement for a plaintiff to prove that the relief sought is proportionate, there is a negative principle that ‘enforcement of the expectation must not be disproportionate’: Delaforce at [77].

2. [190]

   Mr Chapple SC submitted while that detriment is difficult to quantify in dollar terms, taken at its highest, it falls well short of the value of the whole of the estate. In that sense, the services provided by the plaintiff fall well short of the value of the estate in the sense that the detriment suffered is out of all proportion to the value of the promise that is sought to be enforced: cf Moore v Aubusson at [424]-[425].

3. [191]

   Mr Chapple SC submitted that one way of assessing what relief is appropriate, having regard to the reasoning in Moore v Aubusson, is to moderate the relief by reference to what the plaintiff thought he was receiving. This can be done in two ways.

   1. (1)

      In July 2010, assuming that the plaintiff’s evidence is accepted, Peter promised that he would leave his estate to the plaintiff. Lily was not involved in the conversation and made no representation to the plaintiff. Moulding the relief to the expectation of the plaintiff, the value of Lily’s estate might be excluded. According to the inventory of property annexed to the grant of Letters of Administration in her estate, her estate as valued at $1,235,010 at the time of her death. That value might be adjusted by CPI to give a present value.

   2. (2)

      Alternatively, by August 2013, when the plaintiff made an application to the Guardianship Tribunal, he described Peter’s assets as being comprised of his property valued at the time at $900,000, $1M in shares, and $1M in savings (Tcpt, 31 March 2025, p 20(17)-(42)). In the event that the Court finds that the plaintiff should succeed in his claim, the appropriate relief should be moulded having regard to no more than that expectation.

4. [192]

   In my view, there is force in Mr Chapple’s submission that requiring the estate to make good the promise would be disproportionate in the present case. However, it is a matter on which the plaintiff has not made submissions. Mr Waters SC said in closing submissions that in the event that the plaintiff succeeded, he sought leave to make further submissions on the proportionality of the relief as there were various matters which needed to be addressed on that issue. I indicated at the hearing that this is the course which would be adopted. Consequently, I will make orders giving the parties time to make submissions on the appropriate relief.

Conclusion

1. [193]

   For the above reasons, the plaintiff has made out his claim in proprietary estoppel, but it is necessary for the parties to make further submissions regarding the appropriate relief bearing in mind that the enforcement of the expectation created by the promise must not be disproportionate.

2. [194]

   Accordingly, I direct the parties to bring in short minutes within 14 days with a timetable for the making of further submissions on the proportionality of the relief to be granted and costs.