Penya v Penya

1. [1]

   BELL CJ: This is an appeal from a judgment and costs order of Williams J (the primary judge) sitting in the Equity Division of the Supreme Court: Penya v Penya [2025] NSWSC 805 (PJ); Penya v Penya [2025] NSWSC 890. It arises from a hearing of a Summons for relief under s 66G of the Conveyancing Act 1919 (NSW) to appoint trustees for the sale of a family home at Eastlakes (the family home or the Property), the parties to those proceedings being Mr Paul Penya (Paul or the First Respondent) and Ms Therese Penya (Therese or the Second Respondent).

2. [2]

   In separate proceedings heard in conjunction with the s 66G proceedings (with evidence in one case being evidence in the other), Ms Paula-Marie Penya (Paula-Marie or the Appellant), the only child of Paul and Therese, brought proceedings against her parents seeking equitable relief by way of a constructive trust over the family home, and sought an accounting remedy in respect of the proceeds of sale of the Matra Real Estate business owned by Paul and Therese (the family business or the Business).

3. [3]

   The convention adopted by the parties and the primary judge of referring to those involved in this matter by their first names has been maintained in these reasons. No disrespect is intended thereby.

4. [4]

   Paul and Therese were both directors of the family business although Therese appears to have been a passive director and did not participate in the business. Paul and Therese separated in 1995 and, although Paul moved out, he continued to pay the mortgage over the family home of which he and his wife were joint tenants. Paula-Marie lived in the family home rent-free before her marriage and she and her husband, Mr Andrea Pizzimento (Andrea), whom she married in 2004, have continued to live rent free in the home up until this day, together with their two children who are now 11 and 12 years old.

5. [5]

   That fact, together with a degree of financial assistance received from Paul and Therese as well as from Andrea’s family, has allowed Paula-Marie and Andrea to amass a substantial investment portfolio, the realisation value of which as at the time of the hearing was $2,096,000 net of debt and selling costs.

6. [6]

   The family business was a modest one. Its activities involved the sale and rental management of properties. It was acquired in 1986 and operated through Matra Real Estate Pty Ltd, of which Paul and Therese are directors and shareholders. The business had a modest rent roll of 30 properties from which a net income of about $2,000 each month was earned.

7. [7]

   The family business was sold for $220,516.46 in September 2018 in circumstances where, on Paul’s evidence and, to a certain extent, Therese’s evidence, Paula-Marie did not wish to take it over.

8. [8]

   The contract for the sale of the Business was signed by Therese and Paula-Marie separately agreed to a restraint of trade clause. Therese gave evidence that she signed the sale contract because “Paula had agreed to it” and because Paul promised to pay Therese some money that she says he owed to her: PJ [73]. Therese gave evidence that she was unhappy when Paul told her that he would be paying Paula-Marie $20,000 out of the sale proceeds because “it appeared to me that Paula wasn’t getting much from the sale of the Matra business, but she had accepted it and I understood that she would still eventually get the property”. Therese asked Paula-Marie, “Are you OK with this?”. Paula-Marie replied: “I trust [my] Dad to do what he says.”: PJ [73].

The claim and the primary judgment

1. [9]

   Paula-Marie principally founded her claim on the doctrine of proprietary estoppel, alleging that her parents had over many years from about March 1996 made promises to her in relation to what would happen to the family business and the family home if she agreed to work in the family business without remuneration. In short, her claim was that, in reliance on several promises made by both parents at particular times, she worked in the family business without remuneration for many years and to her detriment on the basis that she would be given the family home and the family business.

2. [10]

   Therese did not oppose the s 66G proceedings, and entered a submitting appearance in Paula-Marie’s proceedings and on appeal, but broadly supported Paula-Marie. Certain aspects of her evidence, however, did not support Paula-Marie’s case including her evidence noted at [8] above.

3. [11]

   The starting point for considering the case is that the primary judge accepted that Paul and Therese did intend for Paula-Marie to inherit the whole of their estates on their death, and that there were many conversations to that effect: see PJ [169]. Consistent with this, in about November 2021, Paul gave Paula-Marie a copy of his will dated 23 August 2021, in which he bequeathed the whole of his estate to her. The will did not specifically refer to the family home.

4. [12]

   The critical issue before the primary judge related to whether, to the extent representations had been made, they had been to the effect that the parents would transfer the family home and the family business to Paula-Marie during the parents’ lifetimes or on Paul’s retirement or on their death, by way of inheritance and as part of their respective estates as constituted at their deaths rather than as specific bequests.

5. [13]

   The primary judge dismissed Paula-Marie’s claims for equitable relief. The essence of her Honour’s reasoning was that no clear and unequivocal promises had been made that Paula-Marie would receive the family business or the family home during her parents’ lifetime. Her Honour pointed out that Therese only supported this version of events when cross-examined (having been present in Court for Paula-Marie’s cross-examination) and noted that it was inconsistent with her written evidence: PJ [91]-[94].

6. [14]

   The primary judge’s conclusion about the lack of clarity of the representations is borne out when one has regard to the terms of a conversation in March 1996 relied upon by Paula-Marie (PJ [21]):

7. [15]

   Over the years, Paul did provide some money to Paula-Marie in the form of cash payments having an aggregate value of $79,000 together with other financial benefits such as permitting her to live in the family home rent-free together with her husband and subsequently her children while Paul was continuing to service the mortgage, as well as providing financial support to Paula-Marie and her husband which assisted them in acquiring a valuable investment property portfolio which had a net value of over $2 million as at the time of the hearing.

8. [16]

   Paul denied Paula-Marie’s account; his evidence was that he merely told Paula-Marie that everything he owned, including the family business and the home, would be hers one day in any event when he died, and that he intended for her to take over the business by becoming the principal licensee when he retired. The primary judge rejected the last sentence of Paula-Marie’s account as set out at [14] above and, in particular, the notion of “sacrificing [a] wage”, describing it as “inherently improbable” (because her parents had assured her that she would be inheriting everything anyway) and as “part of Paula-Marie’s overt narrative in the trust proceedings”: PJ [170].

9. [17]

   The primary judge concluded that “Paula-Marie’s impressions of what Paul said to her in March 1996 have been consciously or subconsciously overlaid with that self-interested narrative in the context of her prosecution of the trust proceedings”: PJ [170]. This was a polite way of rejecting an important component of Paula-Marie’s evidence. The primary judge also said that she did “not feel actual persuasion that Paul and Therese said during [a] 1997 conversation that Paula-Marie working without a wage ‘was a small sacrifice for what I was going to end up with’”: PJ [172].

10. [18]

    The primary judge indicated that, even if there had been the requisite clarity as to the representations relied upon (as to which, see Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (Kramer) at [37] – a decision handed down after final submissions in the case but before judgment), she would nevertheless have dismissed the claim on the basis that Paula-Marie had not relied on any of the alleged promises to her detriment.

11. [19]

    Her Honour held (at PJ [191]):

    1. (1)

       Paula-Marie had failed to establish the first necessary element of her proprietary estoppel claim — a clear and unequivocal promise made to her by Paul and Therese that, if she worked full-time in the Business without pay, then they would give her the Business and the Property during their lifetime;

    2. (2)

       Paul was “not estopped from seeking an order under s 66G of the Conveyancing Act for sale of the … [P]roperty”;

    3. (3)

       Therese and Paul did not hold the Property on constructive trust for Paula-Marie; and

    4. (4)

       “the doctrine of proprietary estoppel [did not] operate to require Paul to account to Paula-Marie for the proceeds of sale of the rent roll of the … [B]usiness.”

12. [20]

    The first finding meant that the first element of Kramer at [36]-[41] was not satisfied. Her Honour noted the length of time since the alleged representations, referred to the well-known passage in Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson) and concluded, in familiar language at PJ [167], that she did not feel an “actual persuasion” that the representation alleged was made. Her Honour pointed to an internal inconsistency on Paula-Marie’s account between the promise to leave everything to her in her parents’ wills and the promise to leave their two principal assets, namely the family home and the family business to her during their lifetimes: see PJ [169]-[170].

13. [21]

    The claimed representations in relation to the family home were also inconsistent with what her Honour considered to be Paul’s inherently probable evidence that “he had agreed with Therese not to sell the … [P]roperty at the time of their separation, provided that the property would be sold or Therese would buy out his interest in the property if Paul was in need of funds when he retired”: PJ [182] (emphasis added). In this context, it should be remembered that Paul and Therese had separated in 1995 and Paul had moved out of the family home but continued to pay the mortgage.

14. [22]

    While her Honour accepted Paula-Marie’s evidence that Paul did say during a conversation in March 1996 that she would “get the business” when Paul retired, her Honour did not “regard this as a clear and unequivocal promise that Paula-Marie would be given ownership of the business on Paul’s retirement, as opposed to being given the opportunity to step up at that time into the role of principal licensee in charge of the business that she would later inherit”: PJ [174].

15. [23]

    The primary judge also rejected Paula-Marie’s evidence that “Paul and Therese made a promise or representation to her at any time that was capable of meaning, and that she reasonably interpreted as meaning, that she would be given the … [P]roperty and ownership of the [B]usiness when Paul retired”: PJ [184]. Her Honour considered that this evidence was “strikingly inconsistent” with four “objective facts” detailed at PJ [184]-[188]. In short form, these facts were:

    1. (1)

       “Paula-Marie did not seek legal advice about asserting the claim that she now makes to the business or its sale proceeds at any time during the drawn-out process of completing the sale of the rent roll from September 2018 to December 2020”;

    2. (2)

       “Paula-Marie did not ask Paul and Therese to transfer the title to the Eastlakes property into her name when Paul retired or at any time thereafter before she commenced the trust proceedings.” At PJ [79], the primary judge had held that “[t]here is no evidence that Paula-Marie asked Paul or Therese to transfer the legal title to the property to her when Paul retired in September 2018, or at any time thereafter prior to the commencement of the trust proceedings”;

    3. (3)

       “Paula-Marie’s initial response to Paul commencing the s 66G proceedings was to apply for a loan to buy out his interest in the Eastlakes property”; and

    4. (4)

       “Paula-Marie commenced the trust proceedings only after that loan application was unsuccessful and Paul told her that she would need to sue him if she wanted to have the Eastlakes property for herself.”

16. [24]

    In relation to the first of these four matters, the primary judge made adverse credit findings in relation to Paula-Marie’s attempt to explain away this conduct on the basis that Paul had forced her to agree to or acquiesce in the sale of the business: PJ [185]. Therese’s signing of the contract for the sale of the business was an act inconsistent with a promise she and Paul had made to give their daughter the family business in their lifetimes or on his retirement. Further, Paula-Marie’s acquiescence in the sale of the family business and acceptance of a restraint of trade clause was also an act inconsistent with her reliance on any promise that she would be given the family business in her parents’ lifetimes or on her father’s retirement. That acquiescence or agreement was supported by Therese’s evidence set out at [8] above.

17. [25]

    Consistent with the finding referred to at [21] above, the primary judge also rejected Therese’s evidence that she and Paul had intended and discussed giving the family business and the family home to Paula-Marie when Paul retired rather than by way of inheritance: PJ [175].

18. [26]

    Her Honour also made a number of other significant factual findings (at PJ [193]) which should be identified at an early stage of these reasons and which entailed a finding that the third and fourth elements of Kramer were not satisfied:

    1. (1)

       Paula-Marie’s “evidence that she worked at [the family business] without being paid a wage in reliance on the alleged promises” was rejected;

    2. (2)

       Paula-Marie’s “evidence that she was doing the work of three or four people in managing a rent roll of only about 30 properties lack[ed] credibility”;

    3. (3)

       “Paula-Marie, Andrea and Therese grossly exaggerated the extent of Paula-Marie’s work in the small business that made no profits”; and

    4. (4)

       on the balance of probabilities, “Paula-Marie continued working at [the family business] because it was a relatively easy existence for her given the very modest size of the rent roll which she did not grow in more than 20 years of working there, and her ability to arrange her working hours in a way that suited her life, in circumstances where she and Andrea were accumulating investment properties with financial assistance from Paul and Therese while they and their children lived rent-free at the [family home] and Therese subsidised their other living expenses leaving them free to spend Andrea’s income and the income from their investment properties as they saw fit.”

Grounds of appeal

1. [27]

   Paula-Marie appeals on some 14 grounds although the final ground relating to costs is contingent on success on the other grounds.

2. [28]

   Grounds 1-9 are grouped under the heading “Proprietary estoppel: clear and unequivocal promise”.

3. [29]

   Although it is the last ground of appeal, it is both convenient and logical to commence with ground 13 which relates to the primary judge’s assessment of the credibility of the witnesses who gave evidence in the four day trial. These findings affected a number of the other findings by the primary judge that are subject to other grounds of appeal.

4. [30]

   The written submissions made in support of ground 13 were confined to the following single paragraph:

5. [31]

   It should immediately be noted that no attack was made as to the primary judge’s significant findings as to both Paul and Paula-Marie’s credibility. In particular, in relation to Paula-Marie, the primary judge accepted some but rejected other important parts of her evidence: see, for example, PJ [172]. Her Honour held that Paula-Marie’s “evidence that she was doing the work of three or four people in managing a rent roll of only about 30 properties lack[ed] credibility” and that she, together with Andrea and Therese, “grossly exaggerated the extent of Paula-Marie’s work in the small business that made no profits”: PJ [193].

6. [32]

   A particularly significant aspect of Paul’s evidence (because it was inconsistent with Paula-Marie’s case) which was accepted by the primary judge was her Honour’s finding at PJ [182] that:

7. [33]

   Second, the primary judge’s assessment of the credibility of Therese’s evidence was based on far more than a perception that her interests were aligned with Paula-Marie’s interests (although Therese accepted that they were, as the primary judge recorded at PJ [165]). By way of example, at PJ [183], the primary judge gave detailed reasons for rejecting a critical part of Therese’s evidence which took issue with Paul’s evidence:

8. [34]

   The attack on the primary judge’s “negative disposition” to Andrea’s evidence was similarly based upon far more than “his interest in living free of charge in the Property”. This can be seen at PJ [173] where her Honour held that:

9. [35]

   It is apparent from the foregoing that the primary judge’s adverse views as to Therese’s and Andrea’s evidence were based on far more than their self-interest. Accordingly, the premise of this ground of appeal, namely inconsistency with the primary judge’s treatment of the evidence of Irene, falls away. At PJ [147], the primary judge noted Irene’s evidence that “she was aware that Paul may leave her something in his will, but she considers his will to be his own business, she prefers not to know about it, she is more than capable of providing for herself, and she does not want the tension and friction that she believes will flow to her from Paul’s family if he leaves her part of his estate.” At PJ [182], the primary judge noted that Irene “gave her evidence in a forthright but considered manner and without appearing to pay any attention to the consequences of her answers for Paul’s prospects of success in these proceedings.”

10. [36]

    Ground 13 should, for the foregoing reasons, fail. My conclusion in this regard is only buttressed by the familiar observations by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox) at [23] and [28]-[29] to which the First Respondent unsurprisingly referred. It is also important to emphasise in this context that, in rejecting Paula-Marie’s proprietary estoppel case, the primary judge had regard to that claim “as a whole”, Watson considerations and, consistent with that case, a testing of the claim by reference to what her Honour described as a number of “strikingly inconsistent” objective facts: PJ [162], [184] and see [23] above.

11. [37]

    It is convenient next to turn to ground 8 which was that the primary judge erred in applying “too high a standard for a ‘clear and unequivocal promise’.” It appears from this formulation that Paula-Marie accepted that the expression “clear and unequivocal promise” accurately stated an element of a claim based upon proprietary estoppel (and the parties in Kramer agreed to the estoppel claim in that case as being one of proprietary estoppel: see Kramer at [32]) but appeared to contend that this element had a variable content. That was a subtle submission. The phrase “clear and unequivocal promise” derives directly from the plurality in Kramer at [37] where it was stated that “there must be a ‘clear and unequivocal’ promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee)”, citing Legione v Hateley (1983) 152 CLR 406 at 440, 435-437, 439; [1983] HCA 11; Foran v Wight (1989) 168 CLR 385 at 410-411, 435-436; [1989] HCA 51. As with the parties, the plurality in Kramer appeared to treat the case as one of proprietary estoppel (see at [32]) although the authorities cited for the “clear and unequivocal promise” element derived from promissory estoppel cases.

12. [38]

    In Kronenberg v Macaulay [2025] NSWCA 195 at [158] (Kronenberg), Leeming JA (with whom Mitchelmore and Free JJA expressed their agreement) identified no less than nine reasons as to why there are arguably “some difficulties in accepting that if the case be one of proprietary estoppel by encouragement from a promise, the promise must be clear and unequivocal”. That decision was not relied upon in terms by Paula-Marie although she did submit in reply that, although Kramer did refer to the need for a “clear and unequivocal promise”, that decision did not affect “the existing jurisprudence on the issue”. There is much to be said for Leeming JA’s observations in Kronenberg although his Honour did not ultimately need to pursue the point in that case (see at [160]) and the same may be said in the present case because of Paula-Marie’s failure on other grounds. For my own part, however, it does appear that the plurality in Kramer has determined that a “clear and unequivocal promise” is required to found a proprietary estoppel or at least such an estoppel based, as in the present case, upon representations with the consequence that that decision must be followed in this Court.

13. [39]

    Paula-Marie relied upon Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242 at [120] where it was said:

14. [40]

    The primary judge cannot be criticised for employing the language endorsed in Kramer, especially where the plurality in Kramer appeared (at [32]) to treat the case as one of proprietary estoppel. Her Honour did not apply too stringent a test for the purposes of assessing whether a proprietary estoppel had been made out and ground 8 must consequently be dismissed.

15. [41]

    Ground 1 challenges the findings at PJ [170] and [172] that:

    1. (1)

       it was “inherently improbable that Paul said anything suggesting that Paula-Marie needed to make any sacrifice to get the [family] business and the [family home]”; and

    2. (2)

       the “notion of sacrifice” was a “self-interested narrative” on the part of Paula-Marie.

16. [42]

    As to the first of these propositions, the primary judge’s view was formed in the context of her Honour’s acceptance that both parents had told Paula-Marie that she would be inheriting everything from their estates: no “sacrifice” would be involved because that was their clearly and consistently expressed testamentary intention in respect of their only child: see PJ [169].

17. [43]

    As to the primary judge’s assessment that the “notion of sacrifice” was a “self-interested narrative” on the part of Paula-Marie, that was an impression formed by the primary judge who had all the benefits and advantages of observing the witness in the course of the entire trial (which an appellate court necessarily lacks): see Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55]. Her Honour plainly formed a view of Paula-Marie’s credibility, which included Paula-Marie’s gross exaggeration of the extent to which she worked in the family business: see [31] above. Her Honour’s conclusion was supported by a text message Therese sent to Paul in January 2020 which included the following: “Well she had her babies & she had to look after them. And with no one at the office all those years the business could not grow. Let’s not stress over the past or what should have been.” (emphasis added). This ground of appeal must fail.

18. [44]

    Ground 2 attacked the primary judge’s finding at PJ [174] (see [22] above). It was submitted that, although accepting that Paul did say during the March 1996 conversation that Paula-Marie would “get the business” when Paul retired, her Honour erred in not regarding this as “a clear and unequivocal promise that Paula-Marie would be given ownership of the business on Paul’s retirement, as opposed to being given the opportunity to step up at that time into the role of principal licensee in charge of the business that she would later inherit.” I agree with her Honour that this was an equivocal statement. Her Honour was correct to note that her conclusion was consistent with Therese’s affidavit evidence that “she and Paul told Paula-Marie over the years that she needed to get her real estate licence in order to be able [to] ‘take over the business when dad retires’”: PJ [174]. “Unequivocal” means leaving no doubt or unambiguous. The statement relied upon did not have this character and insofar as it is relevant to examine how Paula-Marie, as the representee, understood this statement, her acquiescence in the sale of the business in 2018 is inconsistent with her understanding that she was to own it on her father’s retirement. The fact that moneys earned from the business were being used to service the mortgages on the family home and Paul’s unit was an objective matter that also tended to support the primary judge’s interpretation of the representation rather than that contended for by Paula-Marie. In any event, the critical point is not what the representation in fact meant but that it was not unequivocal. This ground of appeal must fail.

19. [45]

    The third ground of appeal was as follows:

20. [46]

    To the extent that this ground rests on acceptance of Therese’s evidence, it runs headlong into the primary judge’s rejection of key elements of that evidence which has already been referred to: see [33] above.

21. [47]

    Secondly, it seeks to call for separate consideration as to when Paula-Marie would be given the Business and the time at which Paula-Marie would be given the Property. This was inconsistent with how the case was advanced at first instance. In any event, in relation to the Business, as explained in [43] above, the primary judge’s conclusion was not inherently improbable.

22. [48]

    The primary judge was correct to find that it was inherently improbable that Paula-Marie would be given the Business and the family home on Paul’s retirement in circumstances where Paul and Therese had separated prior to any representations being made; where Paul relied upon the Business for his income and to fund his alternative accommodation (ie outside the family home); and, where on the evidence, Paul only had his share in the house by way of equity to support his retirement. The primary judge gave the following cogent reasons for reaching the conclusion which her Honour did at PJ [175]:

23. [49]

    Ground 3 is rejected.

24. [50]

    Ground 4 relates to what was pleaded as the third alleged promise based upon the following evidence of Paula-Marie (which Paul denied) of a conversation in 2012:

25. [51]

    The primary judge held at PJ [177]-[178] that:

26. [52]

    This Court should not interfere with a finding of the kind made by the primary judge unless convinced that it was “glaringly improbable” or “contrary to compelling inferences”: Lee at [55]. In Lee the plurality said as follows (at [55]):

27. [53]

    Further, as Stern JA observed in Davey v Want [2026] NSWCA 12 at [7]:

28. [54]

    Appeal ground 4 included the following:

29. [55]

    This aspect of ground 4 (which was in effect repeated in appeal ground 9b) was an illegitimate attempt on appeal to seek to introduce a claim that was rejected as not open on the pleadings by the primary judge, the late introduction of which would have amounted to a denial of procedural fairness: see PJ [196]. This was a point made by Mr George who appeared for Paul at the outset of the hearing at first instance, and Paula-Marie did not make any application to amend her claim to contend that “the representations that were made should be interpreted as a commitment to preserve the Eastlakes property and the [B]usiness for Paula-Marie to inherit on their death”: PJ [196]. Appeal ground 9a challenges the primary judge’s finding that “to interpret the representations as a commitment to preserve the Property and the Business for Paula-Marie to inherit on the death of Paul and Therese would be beyond the scope of Paula-Marie's pleaded case”.

30. [56]

    On the hearing of the appeal, the following exchange occurred:

31. [57]

    This answer really made the primary judge’s point. As Mr George pointed out in argument, the relief sought in the Amended Statement of Claim was the immediate transfer of the claimed equitable property to Paula-Marie. This is inconsistent with what was sought to be contended, in the alternative, by Ms Mee on behalf of Paula-Marie. I agree with her Honour’s assessment as to the scope of the pleaded case and that the alternative formulation was not open. In any event, it was not only not supported by the pleading; it was not supported by the evidence.

32. [58]

    Ground 5 relates to the fourth alleged promise and the fact that Paul gave Paula-Marie a copy of his will in or about November 2021. It attacked the finding of the primary judge at PJ [179] that the evidence of this alleged promise “is consistent only with Paula-Marie having been told that she would inherit Paul’s estate, including his share in the Eastlakes property if he still owned it, when he died” (emphasis added).

33. [59]

    The relevant evidence was set out by the primary judge at PJ [86]-[89] of her reasons. These were in the following terms:

34. [60]

    Even accepting, as Paula-Marie contended, that these interactions occurred in the context of discussions about ensuring Paul’s interest in the family home went to Paula-Marie, that does not change the nature of the act of giving Paula-Marie a copy of Paul’s will which remained merely a statement that, at that time, Paul had “bequeathed the whole of his estate to her”. There is no evidence that Paul promised never to revoke his will or that he would preserve his estate, or even merely the family business and his share of the family home, for Paula-Marie to inherit. This ground must be rejected.

35. [61]

    Ground 6 relates to the primary judge’s finding at PJ [182] which is set out at [32] above to the effect that it was inherently probable that the basis of Paul and Therese’s decision not to sell the Property at the time of their separation in 1995 was that they had agreed the Property would be sold or Therese would buy out Paul’s interest if he was in need of funds when he retired. This finding is challenged on the basis that there was no evidence that Paul had mentioned it to Paula-Marie regarding her inheritance.

36. [62]

    It is important to note that her Honour’s finding entailed an acceptance of Paul’s evidence. Her Honour’s finding that the agreement was inherently probable is entirely understandable when it is appreciated that the agreement was made many years before Paul would retire and at a time when he did not know what his financial position would be many years hence. It was a contingent agreement that would be performed if he was in need of funds when he retired. This contingency also explains why he may not have mentioned it to Paula-Marie, as does the fact that his intention was evidently to leave his estate, whatever it was, to Paula-Marie when he died.

37. [63]

    Further, it was open to her Honour to infer that Paul had a good reason for not mentioning the agreement in his conversations with Paula-Marie. Given that Paul “expected or hoped that Paula-Marie would cause the business to pay his expenses after he retired”, just as he had caused it to fund the mortgage on the family home where she lived, it was reasonable for her Honour to infer that Paul did not mention the agreement to Paula-Marie simply because he did not believe it was likely that he would actually have to rely on the agreement and sell the home.

38. [64]

    This ground should be dismissed.

39. [65]

    Ground 7 involves Paula-Marie’s challenge to the primary judge’s reliance upon the four “objective facts” outlined at [23] above as being “strikingly inconsistent” with her principal case.

40. [66]

    It was relevant and appropriate for the primary judge to test Paula-Marie’s case by reference to objective facts for a number of reasons.

41. [67]

    First, the original alleged representations were said to have been made many years before the proceedings. As both Watson and Fox teach, it is sound fact-finding technique to test the probability of the representations having been made as alleged by reference to objective matters. It was not submitted on appeal that the primary judge should not have adopted this course: rather, what was submitted was that the facts relied upon by the primary judge were capable of other explanations which were not inconsistent with the alleged representations having been made. While that may or may not have been correct, it was open to the primary judge to form the assessment which her Honour did as part of her overall exercise in fact-finding. The inferences her Honour drew from the four objective matters identified were not “glaringly improbable” or “contrary to compelling inferences”: Fox at [29], quoting Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; [1985] HCA 61 and Chambers v Jobling (1986) 7 NSWLR 1 at 10. Moreover, to the extent that Paula-Marie sought to explain away some of these matters, the primary judge rejected that attempt: see [24] above.

42. [68]

    For these reasons, I would reject ground 7.

43. [69]

    Grounds 8 and 9 have already been dealt with.

44. [70]

    Ground 10, relating to reliance, and ground 11, relating to detriment, do not strictly arise for consideration in light of the rejection of grounds 1-9. As to reliance, the primary judge made a strong finding at PJ [193] which is summarised at [26] above. It is plainly a finding based upon her Honour’s command of a significant body of evidence in the context of informal family arrangements over nearly 30 years. Her Honour’s finding that there was effectively a broad quid pro quo for Paula-Marie working without wages was well open to her especially when one takes into account that she and her family were provided with substantial financial and in kind support by both of her parents over a continued period of time in a manner that allowed Paula-Marie and her husband to generate a very strong financial position through their property investments while not having to meet their own accommodation expenses.

45. [71]

    These matters also bore on the question of detriment upon which Paula-Marie bore the onus of proof to show that she would have been in a stronger position had she pursued and secured an alternative source of work. The primary judge gave extensive reasons for her finding as to the absence of any demonstrated detriment at PJ [194]. Those reasons are cogent and were not the subject of close criticism. In particular, it was not sought to establish, other than by speculation, that the alternative course that Paula-Marie might have pursued, had she not relied on the representations as she claimed them to be, would have left her in a superior financial position to that which she was in.

46. [72]

    Further, the findings of the primary judge still remain that Paula-Marie would have been unlikely to pursue work at another business, would have earned at best a modest wage and superannuation there, and would not have been able to afford to buy a home together with Andrea on such modest earnings. It was also speculative whether she would have secured the level of financial and other assistance from her parents had she not worked in the family business. Paula-Marie also presented no evidence to the effect that the value of any home bought together with Andrea, combined with any savings remaining after the purchase, would have exceeded the value of the investment properties she in fact acquired with the support of Paul and Therese during her working career. Ground 11 must therefore also fail.

47. [73]

    Ground 12 and ground 14 were both contingent on the success of the other grounds of appeal. As that contingency has not been engaged, these grounds must also be dismissed. This also obviates the need to deal with the Notice of Contention filed on Paul’s behalf.

Conclusion

1. [74]

   For the foregoing reasons, the appeal should be dismissed with costs.

2. [75]

   MITCHELMORE JA: I agree with the order proposed by Bell CJ. In relation to ground 8, his Honour has referred to the observations of Leeming JA in Kronenberg v Macaulay [2025] NSWCA 195 at [151]-[160], with which I agreed, regarding what the plurality said in Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (“Kramer”) at [36]-[37]. Leeming JA did not need to decide the issue in that case, and nor need it be decided in the present case, the factual substratum not having been established for reasons the Chief Justice has addressed in other grounds of appeal. That said, I certainly agree with the Chief Justice that the primary judge cannot be criticised for employing the language endorsed in Kramer at [37], for the reasons his Honour has given. I otherwise agree with his Honour’s reasons for dismissing the appeal.

3. [76]

   ADAMSON JA: I agree with Bell CJ.