Blacket v Barnett

[2017] NSWSC 1032

Supreme Court

New South Wales

Medium Neutral Citation:

Blacket v Barnett [2017] NSWSC 1032

Hearing dates:

13, 14, 15 June 2017

Date of orders:

10 August 2017

Decision date:

10 August 2017

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

 

(i) Orders that the Plaintiff’s Statement of Claim is dismissed, with costs.

 (ii) Orders that the caveat on the title to the Undine Street, Russell Lea, property be removed within 7 days.

Catchwords:

ESTOPPEL — Proprietary estoppel —Encouragement — Relief
EQUITY — Equitable remedies — Equitable compensation
EQUITY — Defences — Laches and acquiescence -
Knowledge of ability to bring claim
ESTOPPEL — Anshun estoppel — Relevance of new issue in earlier proceedings

Legislation Cited:

Fair Trading Act 1987 (NSW)
Succession Act 2006 (NSW)
Trade Practices Act 1974 (Cth)

Cases Cited:

Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; (2008) 66 ACSR 325
Arfaras v Vosnakis [2016] NSWCA 65; (2016) 18 BPR 35,819
Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666
Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Como v Helmers [2011] WASC 179
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 333 ALR 384
Day v Couch [2000] NSWSC 230
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285
DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) [2011] NSWCA 348
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172
Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Evans v Braddock [2015] NSWSC 249
Evans v Evans [2011] NSWCA 92
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Gaydon [2001] NSWSC 473
Gibbs v Kinna (1999) 2 VR 19; [1998] VSCA 52
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Henderson v Henderson [1843] EngR 917; 67 ER 313
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Jennings v Rice [2003] 1 P & CR 8; [2002] EWCA Civ 159
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep)
McGrath v Troy [2010] NSWSC 1470
Milling v Hardie [2014] NSWCA 163
Olsson v Dyson (1969) 120 CLR 365
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Priestley v Priestley [2017] NSWCA 155
Ramsden v Dyson (1866) LR 1 HL 129
Re Hodgson (1885) 31 Ch D 177
Riches v Hogben [1985] 2 Qd R 292
Robinson v Gollan [2012] NSWSC 51
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755
Svenson v Payne (1945) 71 CLR 531
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 346; [1990] HCA 8
The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603
The Nominal Defendant v Cordin [2017] NSWCA 6
Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Wallis v Wallis [2017] SASC 91
Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unrep)
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
Willmott v Barber (1880) 15 Ch D 96

Texts Cited:

R P Meagher, J D Heydon and M J Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies (4th ed 2002, Butterworths)
P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655

Category:

Principal judgment

Parties:

Mr Peter Wilfred Blacket (Plaintiff)
Mr Graham Keith Barnett (first Defendant)
Mr Christopher Glen Gillis (second Defendant)
Mr John Frederick Hiscox (third Defendant)

Representation:

Counsel:
Mr L Ellison and Mr D Liebhold (Plaintiff)
Mr S Balafoutis and Ms C Hamilton-Jewell (Defendants)

  Solicitors:
Bartier Perry (Plaintiff)
Carneys Lawyers (Defendants)

File Number(s):

2016/330190

Publication restriction:

Nil

Judgment

The Claims and the Defences

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

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

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

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

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

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

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

Dramatis Personae

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“I have thought further and do not see I can achieve anything by providing an affidavit – my recollection is based on my notes which have been produced under subpoena”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Probate Proceedings

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

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

“I think there is another Will with a local solicitor around here. I am a Power of Attorney and I want to make enquiries about any other wills. I brought another solicitor here to do another Will for her…”

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

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

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

“I require that:

1. No grant be made in the estate of [the deceased]…unless I am given the opportunity to be heard on the question of whether a declaration as to the Court’s satisfaction under section 8 of the Succession Act 2006 should be made in respect of a document made by the deceased.

2.   My interest is beneficiary under a document or documents.”

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

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

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

“We are again instructed that notes evidencing the testamentary intentions of the deceased were given by her to Mr John Hiscox to act upon. These notes were discussed with our client by Mr Hiscox.” [Emphasis added.]

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

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

“In our view, the documents you have produced provide no evidence of any testamentary intention of Mrs Thompson. Accordingly, they provide no proper basis for any claim your client may make that Probate or Letters of Administration should be granted to him, nor can they ground any claim for a right to distribution of any part of the Estate.” [Emphasis added.]

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

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

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

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

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

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

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

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

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

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

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

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

“In light of the evidence relied on by the plaintiffs, our client accepts that the 2003 Will was the last Will of the deceased and was not validly revoked. This is notwithstanding that the evidence of the plaintiffs does not disclose what happened to the two documents found by our client in the deceased’s residence shortly after her death…”.

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

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

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

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

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

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

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

71. In the affidavit, Mr Basha also deposed:

“I and the plaintiff’s other legal advisers took the view, based on the plaintiff’s instructions, that an action in equitable estoppel would only be necessary in the event that proper enquiry and investigations did not establish that the deceased had made a will (whether formal or informal) leaving her estate to the plaintiff.”

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

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

“Constructive trust whereby the executors of the estate of the deceased Registered Proprietor hold the whole of the property on constructive trust for the Caveator.”

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

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

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

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

The 2003 Will and the Estate of the deceased

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

1. a devise of a property at Undine Street, Russell Lea (called Drummoyne in the Will), subject to any mortgage or other encumbrance that may affect the property at the date of death, to Lyndon Bryce Barnett and Tristan Jerome Barnett, as survived the deceased, and if more than one, in equal shares as tenants in common;

2. a bequest of the deceased’s Daimler car to Mr Hiscox;

3. a bequest of all her of shares, in various listed companies, to Adam Christopher Gillis and Guy Laurence Gillis, as survived the deceased, and if more than one, in equal shares as tenants in common;

4. a bequest of personal effects to Mr Hiscox and Mr Barnett, as survived the deceased, and if more than one, in equal shares as tenants in common;

5. a bequest of the rest and residue to Mr Hiscox absolutely.

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

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

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

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

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

The Janet Street Property

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

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

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

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

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

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

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

The Undine Street Property

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

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

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

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

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

The Evidence of the Plaintiff and his witnesses

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

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

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

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

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

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

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

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

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

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

“18.   Beginning in or about 2010, Mrs Thompson represented to me on numerous occasions that the property at XX Undine Street, Russell Lea, contained in folio identifier 22/XXXX (“the property”) would be devised to me by will upon her death.   

19.   In or about 2010 the deceased handed the title deeds to the property to me and said words the effect, “I would like you to have these Peter.” From the manner in which the deceased spoke and behaved I understood her to be making a gift to me of the property that she had talked about many times before. She never asked me to return the deeds to the property to her.

20.   From that time onwards the deceased said to me on numerous occasions words to the effect, “What will you do with the house after I die? Will you rent it out or sell it?” On such occasions I felt embarrassed about Mrs Thompson discussing her death and my benefitting from it. I generally responded in words to the effect of, “You will probably outlive us all Mrs Thompson!”

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

107. The Plaintiff also stated:

“37.   My relationship with Mrs Thompson was one of friendship, and as it developed over the years it became (at least from my perspective) akin to a mother-son relationship. As such, the care and assistance that I provided to Mrs Thompson was motivated in the first instance by friendship, compassion, and a sense of respect and duty. Having said that, in the later years the demands that were placed on my time in caring for Mrs Thompson, and the negative effects that this had on both my business and personal life were such that I do not believe I would have continued to provide that level of care and assistance to Mrs Thompson, had it not been for my expectation, which she continually encouraged me to hold, that I would be amply recompensed for all of my pains and trouble, by the property that she would leave me upon her death.

38.   There were many occasions when I felt exhausted and harried in providing the services I needed to provide for Mrs Thompson, often at short notice. On such occasions, my mind invariably turned to the fact that Mrs Thompson had given me the title deeds to the property, and frequently referred to the fact that it would be mine upon her death. With that in mind, I consoled myself that the effort and hardship that I (and indirectly my family) was encountering would be properly recompensed in due course, and I therefore kept on going.”

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

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

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

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

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

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

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

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

“10.    I did not mind that Mrs Thompson did not repay me all of the money I had expended in running errands for her, as she had told me that I would have the benefit of her estate and particularly her property at … Russell Lea, upon her passing.

11.   In relation to paragraph 20 of my affidavit of 4 November 2016 I recall that Mrs Thompson said to me “what will you do with the house after I die?” around three to four times from around 2010. To the best of my recollection, Mrs Thompson would ask me questions like that after general discussion about the property.

12.   Prior to that, from around 2005, when I visited with Mrs Thompson she would often say words to the effect of “of course, you know I am leaving everything to you Peter”.

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

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

1. had taken the deceased and her dog to the vet in Ryde “many times”;

2. had paid, by credit card, the veterinarian to put the dog down and had not asked the deceased to reimburse him for the payment;

3. repeated that his wife had washed “severely soiled sheets on many occasions”;

4. set out the types of food that he would buy for the deceased, which, whilst not purchased every week, were finished “quite quickly”;

5. had corresponded with Mr Gaydon;

6. ran errands to the bank for the deceased;

7. would visit the deceased, in hospital, “often with my wife and daughter”;

8. had collected her mail from the post office;

9. arranged for nursing care;

10. engaged a gardener to clear vegetation

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

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

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

“9.   In the last few years of her life however, as her condition deteriorated, I recall that Peter was much more involved in Mrs Thompson’s life. He felt she needed him and depended on him, and I often felt he was more attached to her than his own mother. He felt a responsibility to her as a son would have. This was evident to me through his conversation about her and his comments in relation to visiting her. I recall Peter saying words to the effect of “no one else will get her food or what she needs” and “she’ll starve if I don’t get some food out to her.”

10.   Around this time, Peter would generally receive around two to three calls a day, and depending on her condition, would visit Mrs Thompson up to four times a week. Mrs Thompson would call Peter when she was weak or hungry, or needed anything. He would tell me about these calls and his feeling of responsibility to her. I recall Peter saying words to the effect of “she always rings me when she needs anything, and if I don’t help her she says there’s nobody else to do it.”

11.   Peter would often take Mrs Thompson groceries, or to appointments she needed to attend, either concerning her own health, or veterinary appointments for her dog.

…

13.   I recall that in the last few years of her life, Peter would often receive calls from Mrs Thompson at 6 o’clock at night. I did not understand why the calls from Mrs Thompson came so late in the day and not earlier when it would have been easier for Peter to visit her. I recall one particular instance that this occurred and Peter and I had a discussion in words to the following effect:

Me:   “Why do you have to go there now?”

Peter:   “She said she hasn’t got any food. I have to go or she won’t eat. She doesn’t have anyone else she can call.”

14.   Peter often said things that made me think he solely felt responsible for Mrs Thompson’s welfare, including:

Peter:   “She doesn’t want anyone in the house except me.”

and;

Peter:   “Oh she’s rung. I don’t have time now but I will get over there later.”

When Peter received calls from Mrs Thompson, he would often go after work to see her, or if he had a gap in appointments during the day.”

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

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

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

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

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

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

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

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

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

“Q. You say, for reference purposes, in paragraph 23: "Mrs Thompson frequently discussed her intended Will with me". Can you say what words she spoke to you about her intended Will and any matter associated thereto?

A. She told me that she wanted to leave her house in Undine Street to Mr Blacket.

Q. Did she say that once? Twice? How many times, over the years, do you remember her saying that?

A. On multiple occasions. Almost every time I saw her she, she mentioned things.

Q. Was that as part of a discussion with you about any particular subject or was it prompted by something?

A. She brought it up herself.

…

A. She only discussed the house.

Q. What did she say?

A. That she wanted to leave it to Peter. Mr Blacket.”

The Defendants Evidence – Additional Matters

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

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

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

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

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

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

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

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

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

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

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

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

Documents relied upon by one or other of the Parties

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

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

Discussions regarding Wills

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Will

Executor: Peter Blacket

Est to Peter Blacket (or his children)

Nil to sister or family – they have been cruel & unfair. Haven’t seen them for 12 years or more.

Car + piano to Graham Keith Barnett

92 Chelmsford St?

East Lindfield”

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

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

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

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

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

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

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

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

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

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

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

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

“I called Paul Mattick shortly after and said words to the effect, “I have a friend who needs a solicitor to come out to her home and help her with a will.” Paul agreed to come and see Mrs Thompson.

A few days after the conversation above, I was at Mrs Thompsons home when Paul Mattick arrived to take instructions for a will for her. During the conference, I heard Paul Mattick say to Mrs Thompson words to the effect: “What do you want to do with your estate?” I heard Mrs Thompson reply to Paul Mattick in words to the effect: “I want to leave everything to Peter.”

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

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

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

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

“15 August 2014

…

She then explained to me the current issues and concerns she has.

Initially she has a Guardianship Hearing coming up which Peter Blacket will be attending. I did indicate to her that I had no specific knowledge in relation to that area. I had been involved in a previous hearing however it wasn’t of the nature of these proceedings. It is understood the proceedings were commenced by Concord Hospital who subsequently became aware that Peter Blacket had Enduring Guardianship. Peter Blacket is to attend the proceedings. I recommended that if he had any concerns during the course of the proceedings and that he needed legal advice, he should ask for the proceedings to be adjourned.

I was provided with a copy of the Will of Ruby Spruit who is the mother of Yvonne. Yvonne expressed to me she had concerns with the current Trustee of the Estate claiming that no money was being spent on necessary maintenance. I was provided with a copy of the letter by Peter Blacket from Peter Gaydon who is the Court appointed Trustee. It was apparent from the conversation that they felt that the Trustee was doing little to properly maintain the premises and that a dispute in relation to the repair of a dilapidated carport had not been carried out.

I understood from my discussions that my instructions were to make contact with Mr Gaydon in relation to the current situation and to attempt to negotiate that certain repairs be carried out or in the alternative that Mr Gaydon was not going to take this action, to seek to have the Trustee changed. Additionally Mrs Thompson indicated that Mr Gaydon was being paid approximately $9,000.00 for the work he was doing as Trustee. I did ask whether there was any funds in the Trust to meet the work required and she believes so.

I indicated that it would be worthwhile to get a building inspection carried out to ascertain the extent of works that need to be carried out and the urgency in relation to those works. Mrs Thompson indicated there was a builder that she trusted to do this but she wasn’t sure how to contact him but she was sure she could arrange it.

I left at about 12:20pm.

During the course of the conference I asked Mrs Thompson whether she required anything else. She indicated to me that she did want to make a Will. I asked her whether she was ready to give instructions. She said yes it is her intention to leave everything to Peter Blacket. I asked her if she needed a Will done straight away. She said “look I just need to think about it first and I will let you know”. I expressed to her the importance of trying to the Will done as soon as possible and the risks she faced if she didn’t get the Will done and something happened to her. She said that she wasn’t ready to do it today.

18 August 2014

P/Att Mrs Thompson – she asked me to return a copy of the Will to her. She appeared to suggest she was getting someone else to look at it. I organised this.” [Emphasis added.]

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

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

“It was good to meet you today.

As I understand the following will take effect:

1.   I will determine what the obligations of the trustee is based on the provisions of the will and also the law generally.

2.   You will get a report carried out to determine the extent of repair required to the home and in particular urgent works.

3.   We will then engage the Trustee in discussions to ascertain his readiness to act and in the event that we are not satisfied to look to have him replaced.

I note in discussions Yvonne seemed to be confident there were funds in the estate – do you know if she has ever received any accounting? She did mention the trustee receiving $9K a year for what he was doing.

I also note that Yvonne is to come back to me regarding her will.” [Emphasis added.]

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

“Just to let you know that I spoke to Yvonne today as she rang asking me to send back the copy of the will. I indicated it was my plan to drop it back when she told me her instructions for the will however I got the impression she wanted it back to have someone else look at it? I may have misunderstood her.

No problem getting it back to her however I guess if she is having someone else look at it does she still want me to????? No worries either way but I guess I was trying to avoid for her sake duplication etc..

As I said, I may have misunderstood her?”

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

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

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

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

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

25. There is also the Plaintiff's failure to disclose to the Defendants that he held the Certificate of Title to the Undine Street property, and, perhaps, more importantly, bearing in mind some of the Plaintiff’s evidence, the circumstances in which he asserts the deceased gave it to him, also affects his credit. Even though he may have handed it to his solicitors, the failure to disclose those matters to the Defendants, or their solicitors, cause some additional concern. This is highlighted even more when it was conceded that, without more, he had no entitlement to retain the Certificate of Title: T88.17 – T88.25.

26. The Plaintiff could not recall that he travelled to London while the deceased was in hospital: T24.50 - T25.3; he could not recall his interview with a neuropsychologist, Mr Rock: T52.45; he could not recall whether he ever paid for the deceased’s care: T54.14 –T54.17. He could not recall whether the deceased was in hospital while he went to France in 2014: T55.3-9.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DETERMINATION

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

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

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

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

“The plaintiff was unshaken, in the course of lengthy cross-examination, as to the repeated representations and encouragement of the deceased which lead him to assume – reasonably, it is submitted, in the circumstances – that the deceased would leave him, if not her whole estate, then at least the [Undine Street] property.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The deceased made any clear and unequivocal promise to him, or gave him any clear and unequivocal assurance, that the whole of her estate, or alternatively, the Undine Street property, would be left to him;

2. Any conversation between the deceased and him concerning either the whole estate, or the Undine Street property, passing to him, was intended by the deceased to be an irrevocable promise or an irrevocable assurance; to the contrary, what was said was no more than the deceased’s statement of revocable intention, which intention had not even crystallised into a final one;

3. It was objectively reasonable for him to interpret what was said by the deceased as an irrevocable promise made, or as an irrevocable assurance given, and to act in reliance on that interpretation;

4. The deceased knew, or intended, that the Plaintiff would act in reliance on what was said by her about the distribution of her estate on her death, or the distribution of the Undine Street property on her death;

5. He changed his position as a result of anything that the deceased said to him, or that he was influenced, in a significant or material way, such that what was said to him was a contributing cause of his conduct towards the deceased;

6. The Plaintiff suffered any material detriment;

7. Any detriment that he did suffer, would be cured by giving him the whole of the deceased’s estate or a devise of the Undine Street property, each of which has a value in excess of $2 million; (To the contrary, I am satisfied that to do so would be disproportionately greater than any detriment the Plaintiff asserted that he suffered.)

8. The deceased had acted unconscionably or unjustly in not honouring what was alleged to have been said.

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

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

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

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

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

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

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

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

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

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

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

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

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