Dable v Peisley - [2009] NSWSC 772

No judgment structure available for this case.

CITATION: Dable v Peisley [2009] NSWSC 772

HEARING DATE(S): 9, 10 and 11 June 2009

JUDGMENT DATE :
7 August 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: Plaintiffs claims dismissed.

CATCHWORDS: CONTRACTS – general contractual principles – offer and acceptance – whether deceased contracted to leave estate to plaintiffs in exchange for provision of hospitality and personal services – whether objectively ascertainable intention legally to be bound – whether consideration sufficient – whether offer accepted – held that no contract existed – no objectively ascertainable intention legally to be bound - ESTOPPEL – proprietary estoppel – whether deceased’s executors estopped from denying plaintiffs’ interest in estate – held that deceased had made assurances that he would leave estate to one or more of the plaintiffs – assurances not understood to be irrevocable and not relied upon as such – held no significant detriment suffered – not unconscionable for deceased to act contrary to assurances made.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CATEGORY: Principal judgment

CASES CITED: Austin v Keele (1987) 10 NSWLR 283
Australian Crime Commission v Gray [2003] NSWCA 318
Barnes v Alderton [2008] NSWSC 107
Birmingham v Renfrew (1936) 57 CLR 666
Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256
Ciavarella v Polimeni [2008] NSWSC 234
Equititrust Limited v Franks [2009] NSWCA 128
Flinn v Flinn [1999] 3 VR 712
Galaxidis v Galaxidis [2004] NSWCA 111
Gillett v Holt [1998] 3 All ER 917
Gissing v Gissing [1971] AC 886
Grant v Edwards [1986] Ch 638
Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298
Palmer v Bank of New South Wales (1975) 133 CLR 150
Ramsden v Dyson (1866) LR 1 HL 129
Saliba v Tarmo [2009] NSWSC 581
Simpson-Cook v Delaforce [2009] NSWSC 357
Staib v Powell [1979] Qd R 151
Taylor v Dickens [1998] 1 FLR (Eng) 806
Thorner v Major [2009] UKHL 18
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walton v Walton (1994, CA, unreported)
Watson v Foxman (1995) 49 NSWLR 315
Weeks v Hrubala [2008] NSWSC 162
Woolworths Limited v Kelly (1991) 22 NSWLR 189
Yeoman’s Row Management Limited v Cobbe [2008] UKHL 55

TEXTS CITED: Meagher Gummow & Lehane [17-110]
Spry Equitable Remedies 7th Ed 2007

PARTIES: Raymond Dable (First Plaintiff)
Yolla Dable (Second Plaintiff)
Mouris Dable (Deceased) by his Administrator, Denise Dable (Third Plaintiff)
Denise Dable (Fourth Plaintiff)
Lorraine Dable (Fifth Plaintiff)
John Harvison Peisley (First Defendant)
Grahame Goldberg (Second Defendant)

FILE NUMBER(S): SC 1032 of 2008

COUNSEL: R Horsley (Plaintiffs)
C Freeman (Defendants)

SOLICITORS: Jonathan Abbott & Associates (Plaintiffs)
Goldberg Lawyers (Defendants)

- 72 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FRIDAY 7 August 2009

WARD J

1032/08 RAYMOND DABLE & ORS V JOHN HARVISON PEISLEY & ANOR

JUDGMENT

1 HER HONOUR: In these proceedings various members of the Dable family (including Raymond Dable (“Mr Dable”), his sisters Yolla and Lorraine Dable and his sister-in-law Denise Dable) to whom I will refer collectively as the Dables, have brought proceedings against the executors of the estate of the late Gordon Tribe (known as Jack Tribe). The claim is also brought in the name of the late Mouris Dable (who was the husband of Denise Dable and brother of the remaining plaintiffs) by his administrator, Denise Dable.

2 The plaintiffs seek declaratory and other relief in relation to statements allegedly made to one or more of the Dables from the late 1970’s to the effect that the deceased would leave his estate to Mr Dable, or to Mr Dable and one or more other members of the Dable family. Those promises, according to the Dables, were generally to the effect that the deceased would look after them in his will, or would leave them his estate, or that they would be well rewarded for having looked after him so well and that they were not wasting their time looking after him. Both Mr Dable (para 25 of his affidavit sworn 1 July 2008) and Ms Yolla Dable (para 43 of her affidavit sworn 29 July 2008) deposed to particular conversations in which a promise of this kind was conditioned by a statement to the effect, “if you continue to look after me”.

3 The deceased was not related to, and did not live with, the Dables, although the evidence of the family members (supported by the evidence of the deceased’s brother, Walter Kenneth Tribe (“Mr Tribe”), who has no interest in the outcome of the proceedings), is that the deceased saw Mr Dable as being like a son to him.

4 There seems no doubt that there was a longstanding relationship between the deceased and the Dables, spanning the years from 1975 through to his death in 2007. According to the second defendant (Ms Rosalind Royal), in 2004 the deceased acknowledged that he had known a family in Castle Hill (which must, in the context of this conversation, have been the Dables) for 30 years. That relationship appears to have had both social and financial aspects.

5 As to the social aspect, over the years the Dables provided to the deceased companionship, hospitality, and personal services (in the form of washing, ironing, and making alterations to his clothes, visiting the deceased when he was hospitalised on a number of occasions, driving the deceased to various places after he had been in a car accident, and carrying out other errands for him). There was also evidence that the Dables (who, over the relevant period, had operated a succession of small business, including a corner shop in Paddington, grocery/fruit shops in Bondi and a supermarket in Dural) from time to time provided to the deceased free or discounted groceries or goods.

6 As to the financial aspect, there is evidence that, first, Raymond, and then Yolla, Dable, at the deceased’s request, opened or operated in their own names bank accounts for the use of the deceased from the period from around 1980 to the date of his death. (Copies of bank records relating to these accounts were admitted as Exhibit 5.) In addition, over the period from late 1990 through to February 2003, various loans were made to one or more members of the Dable family by the deceased (and, on about three occasions, loans were made by other named lenders whom the deceased described himself as representing). No reference was made to those loans in the affidavits relied upon by the Dables, although they readily conceded in cross-examination the making of those loans. Exhibit 4 is a folder containing copies of various handwritten loan contracts prepared by the deceased with accompanying repayment schedules, recording loans to the Dables. Interest was payable on those loans at differing interest rates over the period.

7 Although the deceased had, both in 1991 and again in February 1997, made wills leaving legacies to one or more of the Dable family and his residuary estate to Mr Dable (consistent with the statements he had made to the Dables in relation to his estate), in September 2006 the deceased made his final will. Under that will he made a bequest of $25,000 to his niece, Susan Bryson (who is not a party to the proceedings), and left the rest and residue of the estate to one of the executors (Mr John Harvison Peisley, the first defendant) and his wife, Ms Rosalind Royal. Mr Peisley and Ms Royal were neighbours of the deceased for some years.

8 The deceased died on 17 April 2007. Probate of the deceased’s last will and testament was granted to the defendants (Mr Peisley and his solicitor and long term friend, Mr Grahame Goldberg) on 15 August 2007.

9 The value of the assets of the estate for the purposes of probate was said by Mr Peisley to be in the order of $1.15 million. The primary asset of the estate is the deceased’s property at Paddington. The current estimated value of the assets in the estate is said to be approximately $1.042 million, although there also appears to be a potential tax liability in the estate (the deceased apparently not having lodged tax returns for a number of years) that tax liability not yet having been ascertained.

10 The Dables claim that the whole of the deceased’s estate is held subject to a constructive trust for them as obligees under a testamentary contract or alternatively by reason of an estoppel (described in the written submissions handed up by Counsel for the Dables, Mr Horsley, as a proprietary estoppel by encouragement).

11 It is contended that the deceased’s words to one or more of the Dables constituted an offer giving rise (on acceptance, by their conduct in continuing to care for the deceased) to a unilateral contract (of the kind considered in Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256) binding the deceased to leave to the Dables the whole of his estate if they continued to care for him at least to the level they had hitherto done. The conduct of the Dables, it is said, in continuing to care for (and after 1997 increasing the level of that care) the deceased amounted to acceptance of that offer and created a binding contract. There was a suggestion (in paragraph 10 of the submissions) that, insofar as the offer was re-made a number of times, each new offer (accepted) meant a new contract placing higher or more onerous obligations on the Dables.

12 Alternatively, the Dables’ claim is based on an estoppel said to have arisen by reference to promises or representations made by the deceased (to the effect that he would leave the whole of his estate to the Dables if they continued to care for him at least to the level of their care up to that time) and the reliance by the Dables on those promises or representations, which it is said is sufficient to estop the deceased’s executors from denying the making of the alleged contract or from resiling therefrom. (I note the distinction drawn by Handley AJA in Equititrust Limited v Franks [2009] NSWCA 128 at [71]-[73] between a representation (of an existing or past fact) and a voluntary promise about future conduct. Insofar as the statements relied upon by the Dables seem broadly (though perhaps not exclusively) to refer to future matters, I refer generally in these reasons to the deceased’s statements as “assurances”, to avoid any etymological confusion from the usage of the terms as they appear in the submissions, (noting nevertheless that at least the statements that he had made a will in certain terms would be representations of an existing fact).)

13 The defendants deny the existence of a contract on various bases: that there was no intention to create legal relations; that there was no (or insufficient) consideration to give rise to a binding contract; and that, even if there were such a contract, it was unenforceable insofar as it related to the Paddington property by reason of a lack of writing.

14 In the case of the estoppel claim, the defendants say that, not only must the promise (or assurance) given and relied upon be understood to be irrevocable, but (where the detriment is non-financial) there must be substantial detrimental reliance upon it in order to give rise to a claim for relief. It is submitted that the evidence does not support a proposition that any assurances made by the deceased were irrevocable (or that it was accepted by the Dables that the deceased would not change his will) and that the Dables have not established substantial detrimental reliance so as to make any such assurance irrevocable.

15 It is said by the defendants that there was nothing unconscionable in the deceased changing his mind as to the beneficiaries in his will (in circumstances where the defendants assert that there was no financial or other substantial detriment to the Dables by reason of their alleged reliance on the deceased’s assurances).

16 Finally, it is submitted that any relief must be proportionate to the detriment claimed and that, in the circumstances, the non-financial detriment claimed by the Dables could not readily be quantified so as to give rise to any proportionate relief.

Issues

17 Prior to the hearing, an agreed Statement of Issues was prepared. In summary, it is agreed that the following issues arise for determination:

(1) On the contract claim , was there a binding contract between the deceased and any one or more of the Dables, (ie was there an offer, acceptance, consideration and the necessary intention to enter into legal relations) pursuant to which the deceased agreed to leave his estate to the Dables; if so, is that contract enforceable (in particular, insofar as it relates to real estate, is it unenforceable for lack of writing or have there been sufficient acts of part performance to dispense with the need for writing or circumstances which would render unconscionable or fraudulent any reliance on a lack of writing); and is any trust which has arisen itself unenforceable for lack of writing?

On the estoppel claim

Summary

18 On the contract claim, I find that there was no contract pursuant to which the deceased bound himself (irrevocably or otherwise) to make a will leaving his estate to one or more of the Dables, for the reason that even if the deceased’s words amounted to an offer otherwise capable of giving rise to a “unilateral contract” (in the Carbolic Smokeball sense) there was no objectively ascertainable intention on the part of the deceased to enter into a binding legal contract with the Dables in relation to his estate.

19 Had I been satisfied that there was such an intention, and that a contract as alleged was established on the facts, then I would have found that there were sufficient acts of part performance by the Dables, namely sufficient acts which were unequivocally referable to some such contract of the kind alleged, so as to overcome the lack of writing. (The fact that (as was suggested to the witnesses) those acts may also have been motivated by a desire to continue to obtain loans from the deceased does not mean that the acts were not unequivocally referable to a contract of the kind alleged. It is conceivable that one might have more than one motive for performing obligations under or referable to a contract.)

20 Whether, had there been a contract of that kind which was enforceable by the Dables, that would have led to the recognition of a constructive trust crystallising on the death of the deceased, as Mr Horsley contends, or whether an order for damages for breach of that contract ought be made, is an issue on which it is not necessary for me to comment.

21 In relation to the estoppel claim, I am satisfied that the deceased made a number of assurances to the Dables over the years to the effect that he would leave his estate, first, to Mr Dable and, later, that he would leave his estate (after legacies to one or more of the family) to Mr Dable, in other words to leave his estate collectively to the Dables. (On at least two occasions the relevant statement seems to have been as to the fact that he had made a will leaving his estate to the Dables, insofar as the deceased invited both Raymond and Yolla Dable to look at it to satisfy themselves that he had done so.) I consider it reasonable to infer that the deceased did so with the intent that the Dables should rely on those assurances and should continue to provide such companionship, hospitality and personal services to him.

22 Prior to 1997, the Dables appear to have provided the companionship hospitality and personal services to the deceased out of friendship and not in fact in reliance on any assurance that the deceased would leave his estate to one or more of them. (Indeed, it seems Raymond and Yolla Dable did not at first take the deceased’s assurances seriously.)

23 However, after 1997, when the deceased informed one or more of the Dables that he had made a will in favour of the family (and offered to both Raymond and Yolla Dable to show them the will to confirm that he had done so), I am satisfied that the Dables continued to provide companionship, hospitality and personal services to the deceased at least to some extent because they understood that a will had been made in favour of the family. I accept the evidence from various of the Dables that they would not have provided some or all of the services which they thereafter did or would not have done so in the manner in which they did (in particular, that they would not have tolerated the offensive, rude or disrespectful manner of the deceased after 1997 or afforded priority to his requests), had they not understood the deceased to have made a will in their favour.

24 However, I am not satisfied that they did so in reliance upon an assurance that (if they did) the deceased would leave them his estate or pursuant to a sense of obligation to accede (and give priority within the family) to the deceased’s wishes; rather than that they did so in the hope (or expectation) that in those circumstances the deceased would not change his mind, but nevertheless appreciating that there was a risk that he might do so. In that regard, it seems to me that the factual situation before me, while comparable with that which was considered by Nicholas J in Saliba v Tarmo [2009] NSWSC 581, is distinguishable.

25 Even if the acts done or services provided after 1997 should properly be seen as having been done in reliance on the assurances made by the deceased, I am not satisfied that there was sufficient financial or other detrimental reliance to make it unconscionable in all the circumstances for the deceased later to have resiled from the assurances he had made to the Dables.

26 There was clearly a measure of financial cost to the Dables involved in the provision to the deceased from time to time of discounted or free groceries and in the cost to the Dables of continuing to provide food and beverages when offering hospitality to the deceased in their home. However, there has not been any attempt to quantify the financial cost to the Dables of that reliance and it is impossible for me to assess.

27 The other detrimental reliance said to have been placed on the assurances is non-financial in character, such as what might be colloquially said, to be “putting up” with or tolerating the deceased’s rude or disrespectful behaviour after 1997; spending more time than the Dables would (but for the making of the assurances) have done either talking to or entertaining the deceased; and otherwise according his wishes priority.

28 The evidence does not in my view support a finding of substantial non-financial detriment. Nor does the deceased’s conduct from 2006 (albeit distasteful in the sense considered in Taylor v Dickens [1998] 1 FLR (Eng) 806), in continuing after the change to his will to accept hospitality from and to make assurances as to the Dables’ inheritance prospects without alerting them to the change in his will, lead to the result that the estate is now estopped from denying an obligation to the Dables to honour those assurances.

29 Had I been of the view that there was sufficient financial or non-financial detrimental reliance to make it unconscionable for the deceased not to honour the assurances he had made, then I would have considered that to leave the whole of the estate to the Dables would not be disproportionate, particularly in circumstances where the only executor to give evidence (who is also a residuary beneficiary under the will) has apparently made little or no effort (pending the outcome of the litigation) to ascertain the quantum of the potential tax liability of the estate and where it is impossible to put a value on the services rendered to the deceased over a considerable period of time.

30 For the reasons set out more fully below, I dismiss the Dables’ claim.

Facts

31 The Dables relied upon affidavit evidence (in addition to that sworn by each of the surviving plaintiffs) from Mr Tribe (deposing to his knowledge of the relationship between his deceased brother and a family which I infer, from the deceased’s description, to be the Dable family; and that between his brother and a woman, whom I infer again from the deceased’s description, to be Ms Royal), and from Denise Dable’s cousin, Mr Leba Neily (deposing as to his observations of the behaviour of the deceased on occasions when the deceased visited the Dable family in Bondi and Dural). Each of Raymond, Yolla, Lorraine and Denise Dable was cross-examined, as was Mr Neily. Mr Tribe was not required for cross-examination. For the defendants, evidence was given by each of the residuary beneficiaries (Mr Peisley and Ms Royal), as well as the deceased’s neighbour, Mr Peter Gerdes.

32 The deceased was described variously by the witnesses as a “private” man; as “very reclusive”; as someone who “did not readily invite visitors into his house”; and as secretive. His own brother says he was not given the deceased’s telephone number. The Dables say that the deceased did not like them to ask him personal questions and did not invite him to visit at his home. Mr Gerdes’ evidence did not suggest that the deceased was inclined to be forthcoming as to personal matters. It is not therefore surprising that the deceased’s neighbours did not recall having seen or been introduced to any of the Dables while the deceased was alive or having heard of them by name; nor that (apart from Mr Dable who seems to have done so on occasions in the course of performing errands or tasks for the deceased) none of the Dables had visited the deceased’s Paddington home.

33 There seems to me no doubt that the deceased had a longstanding association with the Dables. Mr Tribe, in his affidavit sworn on 6 November 2007, said that his brother had spoken often about a family he knew well who (as did the Dables back in the late 1970’s) ran a shop down the road from where he lived in Paddington. Mr Tribe said that his brother had told him how nice and friendly they were and how good they were to him; and that he had visited them a lot in Castle Hill (a suburb located not far geographically from Dural). Mr Tribe said that his brother had said that one of the family (presumably Raymond Dable), with whom he had a lot of fun fishing and had bought two boats, was “like a son to me”. Significantly, Mr Tribe deposed to the fact that his brother had said a number of times over a number of years that he “would look after them” in his will. Each of Mr Tribe and Ms Royal gave evidence that the deceased had referred, in conversations with him or her, to making trips to a family in Castle Hill. (Mr Tribe also said that, just before his brother died, his brother had mentioned another person, whom he referred to as an “angel”, who had looked after him well; had done his shopping for him and driven had him to the doctors. I would infer that this was a reference to Ms Royal. )

34 There were a number of photographs tendered in evidence (Ex A p 1-13) which showed the deceased having meals, displaying catches of fish, or in other ways associating with one or more members of the Dable family.

35 The relationship between the deceased and the Dables began in the mid 1970’s. The Dables conducted a small family business from a corner shop in Paddington, near the deceased’s home, in which business the various family members worked. The deceased was a customer of the family shop. Mr Dable met the deceased in around 1975 (when Mr Dable was about 16 years old and the deceased was in his mid-50’s). Mr Dable deposed that the deceased came into the shop every weekday morning on his way to work to buy a newspaper; that the two became friends; that he and the deceased regularly had a coffee together; that on weekends the deceased came into the shop once or twice a day; and that the deceased then became close friends with the Dable family. Mr Dable says that he and the deceased had a common interest in fishing and boating; and, from the 1970’s through to the 1990’s, they went fishing together on a regular basis. On the assumption that the family to whom Mr Tribe was referring in his affidavit was the Dable family, Mr Tribe confirmed the tenor of Mr Dable’s evidence as to the friendship between himself and the deceased (see paras 7/8 of his affidavit).

36 Mr Dable gave evidence that he and the deceased bought a boat together some time in the late 1970’s and that, over the years, they bought a number of boats together. Mr Dable gave evidence that the deceased would lend him the money to fund a half share in the boat and that when the boat was sold the deceased would receive his half share of the proceeds first.

37 Mr Dable says that during the 1970’s he performed various tasks for the deceased as a friend of the deceased’s and without expecting any reward. (As to this, by way of example, Mr Dable says that on one occasion when, in the late 1970’s, he had delivered groceries to the deceased’s home, and the deceased said to him words to the effect:

“I will look after you. I’m not wasting your time here. You will be rewarded. I will look after you in my will. I will leave you everything I own”,

38 I accept that Mr Dable was, as he said both in his affidavit and in cross-examination, thrilled at the suggestion made to him in his mid-teens that, in effect, he would be the deceased’s sole beneficiary.

39 At some stage, while the Dables lived in Paddington, the deceased was hospitalised (in St Vincents Hospital) after a fall from a club in Oxford Street. Mr Dable says he was contacted late at night by the hospital on that occasion; that he visited the deceased at the hospital and that various members of the family provided assistance to the deceased (attending at the hospital, laundering his clothes, collecting mail and doing errands at the deceased’s house).

40 In the early 1980’s, the Dables moved from Paddington to Bondi, where they acquired a fruit shop and a grocery shop. The Dables’ evidence was that the deceased was upset when the family moved to Bondi but that they continued to look after the deceased as they had previously done. The deceased was said to have visited the house regularly, usually five or more days per week, including for dinner or to stay overnight. Mr Neily’s evidence supported this. Mr Neily (who was himself a regular visitor to the family home) confirmed that the deceased had visited the family often in Bondi (and later in Dural).

41 Mr Dable deposed that in the 1980’s, while the family was living at Bondi, the deceased requested that he open a bank account in Mr Dable’s name. Mr Dable says the deceased told him the account was for him, “I’ll put some savings in it for you. I’ve got some extra money. Whatever happens to me, it’s in your name, it’s your money”, but that he treated the account as the deceased’s account. The account was in Mr Dable’s name, as the only signatory, and the statements came to his home address. Mr Dable’s evidence was that he did not open the statements but simply delivered them to the deceased.

42 The reason for such an arrangement was not clear. While a not unreasonable inference might be that the deceased wanted to be in a position where there would be no record of such moneys held in his name or of any interest earned on those moneys (perhaps for tax or pension reasons), that would be mere conjecture at this point. Nevertheless, the deceased appears to have anticipated that tax would be payable on interest earned on the accounts and made provision for the Dables not to be out of pocket as a result. According to Ms Yolla Dable, each year the deceased calculated the tax due on the income earned in the account(s) and provided Mr Dable (and, subsequently herself, when account(s) were held in her name) with sufficient money to pay any tax payable on the interest derived from those moneys (and, at least in Ms Yolla Dable’s case, gave some extra cash described by her as a “bonus” to reimburse her for petrol costs or her trouble in maintaining the account).

43 In 1986, Mr Gerdes acquired the property next door to the deceased. He does not seem to have had much contact with the deceased over the years (from his affidavit, it would seem, at most having casual conversations with the deceased) and thus was not able to shed much light on the deceased’s relationship with the Dables.

44 Another neighbour of the deceased was Mr Peisley, who says he first met the deceased in 1988. Again, it seems that Mr Peisley had only limited contact with the deceased. He deposed to what might again be described as casual conversations with the deceased “whenever” he saw him in the street.

45 In 1990, Mr Dable (and his wife and children) moved to Dural. In 1991, the rest of the Dables moved to an adjacent property in Dural. The Dables acquired an IGA supermarket in Dural in February 1991. Again the family members worked in that business (but the Dables also employed some outside staff). The evidence from the Dables was that the deceased again became “upset “ and “teary” when they informed him that they were moving further away but that after they moved he still visited the family regularly. Mr Dable says that he and the deceased still fished at least twice a week and that when they did so the deceased usually stayed overnight. (He says the boat they then jointly owned was kept at the property at Dural.)

46 There is no suggestion that the Dables visited the deceased in Paddington (other than that in the 1970’s, Mr Dable had made occasional deliveries of groceries there, and attended to various chores around the house in the earlier years, and that he had collected mail or drove the deceased there on a few occasions in later years after the deceased was hospitalised at Baulkham Hills).

47 Each of the Dables deposed to the assistance Mr Dable and other family members gave to the deceased during the time from the 1990’s when they lived in Dural (again, providing companionship, hospitality and laundering the deceased’s clothes). There were a number of occasions when the deceased was hospitalised at Baulkham Hills (he had four operations for cancer “of the temple”) and, during each period of hospitalisation, the Dables say they attended him in hospital and later provided accommodation and care during his recovery. Mrs Denise Dable gave evidence that from time to time she made trips to Castle Hill at the deceased’s request to purchase personal items for the deceased (such as socks or underwear) for which she was reimbursed.

48 At some stage between 1991 and 2001 (while Mr Dable was living in Dural) the deceased was involved in a car accident and was hospitalised in Baulkham Hills. Members of the Dable family gave evidence as to assistance rendered to him while the deceased was in hospital. Mrs Denise Dable described in broad detail what she had done for the deceased while he was in hospital (she had washed for him every day his underwear, pyjamas, socks, some of which she said had blood from his accident (T 96)). She prepared a room for him in which he recuperated after the accident. Mr Dable gave evidence that, after the car accident in which the deceased had been involved, he drove the deceased to various suburbs of Sydney and assisted him to find a car to purchase.

49 There was some evidence of the deceased making payment to Mr Dable towards expenses incurred in relation to the fishing trips on which he and Mr Dable went on a fairly frequent basis (at least up until 2001), and, as noted above, there was evidence from Ms Yolla Dable that the deceased had given her some moneys towards petrol expenses and/or as a bonus at the end of the year when “accounting” for the interest earned on the accounts which were in Raymond’s or her name. However, in general it does not appear that the deceased made any, or any substantial, contribution to the Dable household in return for the hospitality he enjoyed over the years or the personal services (washing, ironing and clothing alteration) provided by one or more members of the Dable family.

50 I interpose here to note that Ms Royal gave evidence that the deceased had told her (presumably some time after 2001) that he had had his laundry done for years at the Boundary Street laundrette (in Paddington). She said she believed that it was the deceased’s habit to deliver his laundry each Monday to the Boundary Street laundrette. If, by this, it was intended to suggest that Denise Dable should not be believed when she said she had carried out the washing and ironing of the deceased’s shirts over the years (and, at least while he was in hospital in Baulkham Hills, his pyjamas and underwear) or mended his clothing on occasions, then I do not accept that such an inference should be drawn. Mrs Denise Dable was, I considered, a truthful witness. She described the clothing she had laundered for the deceased while he was in hospital and how she had prepared the bathroom for him when he stayed at the home in Dural. While there may have been an element of exaggeration in her description of the shirts and ironing she had to do for him (“I worked like a slave for him, washing and ironing five or six shirts at a time and sewing his buttons on his jacket or his linings”), this seemed to me to be a function of the difficulty each of the Dables had in describing with particularity what had been done for the deceased over a lengthy period of time. Accepting that the deceased may well have had some dry cleaning or laundry attended to by his local laundrette, I would nevertheless accept the evidence of Mrs Denise Dable as showing that there was an ongoing contribution made by her (and the Dable family generally) to the deceased’s personal wellbeing over the years, in terms of providing him with personal services, hospitality and attending on a regular basis to him.

51 According to Mr Dable, from the late 1970’s onwards the deceased frequently said to him words to the effect that he would be rewarded or looked after in the deceased’s will and that the deceased would leave everything to him. Each of the Dables gave evidence (supported by Mr Tribe’s account of what his late brother had said to him) to the effect that the deceased had told them over the years that he would be leaving everything to Raymond or to the family.

52 Mr Dable says that the deceased often added the words “you will have more than a million dollars coming to you”. He said that thereafter he made an “extra effort” to look after the deceased and to give priority to what he asked. Paragraph 40 of Mr Dable’s affidavit, for example, refers to statements made by the deceased sometime in the 1990’s to the effect, “You’re not wasting your time. You’re going to get over a million dollars. You’ll end up with the will. You will be rewarded. The house in Paddington will be worth more than a million, plus there’s cash in my account”.

53 (Presumably, any statements in which reference to a million dollars was made (ie, you will have more than a million dollars coming to you or that the house would be worth more than a million dollars) are more likely to have been made in the deceased’s later years, since the property (on the deceased’s death in 2007) was said then to be worth around $1 million (and I would have assumed that this represented an appreciation from whatever the value of the Paddington property had been back in the late 1970’s). This is supported by the evidence given Ms Royal to the effect that, in about 2003, the deceased was very excited that a property had sold in their street for a million dollars and had said words to her to the effect that they were “now millionaires”.)

54 The assistance provided over the period from the 1990’s was not all one-way. From at least 1990, there was a succession of personal loans made to the Dables (mostly by the deceased but occasionally by others through his assistance or at least with him asserting that he represented those others), on almost all occasions without security, at interest rates that were conceded likely to have been cheaper than could have been obtained from a bank or financial institution at the time, and without the need for provision of financial statements or the like. The usual practice was that the deceased would prepare a note in the form of a contract with a schedule for repayment and required that each payment be signed and witnessed. Ms Yolla Dable accepted that she was the person responsible for paying the deceased every month.

55 It was said that the deceased had offered to provide such financial assistance to the Dables and had said words to the effect, “If you need money I have got money I can lend to you”. It was also said that the deceased must himself have been obtaining a benefit from the provision of the loans. (In this regard, if the loans were made at less than bank interest rates and there was no direct evidence of this, then it is hard to see what benefit the deceased personally would have obtained from the making of loans of this kind, unless this was an instance in which the deceased was seeking to earn interest on loans which he was not otherwise disclosing for tax or pension purposes, in which case it might perhaps be that the loans could be described as mutually beneficial in that regard.)

56 It may well be that these loans are the “business arrangements” to which the deceased later referred in a conversation to which Ms Royal deposed in her affidavit. However, in cross-examination Ms Royal was unable to elaborate on what the deceased had said to her about the so-called business arrangements with the Dables. Her evidence was that she had never heard of the Dables (T 130), and that while she had driven the deceased up to Castle Hill or Dural two or three times a week in the last six months of his life it was not to visit the Dables.

57 Ms Royal said in cross-examination (but had not included any such statement in her affidavit) “He said they had no idea about business transactions and that he had to help them a lot, filling out various forms”. It was clear that, of the Dables, it was Ms Yolla Dable who had looked after the family’s financial arrangements with the deceased, and who seems to have taken responsibility for the accounts held for him. Ms Yolla Dable also said she did the family’s bookkeeping. It was not put to her (or to any of the Dables) that the deceased had assisted them to fill out forms. In any event, insofar as the Dables were providing assistance in relation to the holding of accounts for the deceased in their names, any “business” or financial arrangements between the deceased and the Dables were clearly two-way.

58 (To the extent that at one stage it appeared to be suggested that the deceased may have visited the family in Dural only to collect repayments from the Dables of debts owing to him from the Dables, I do not accept that such an inference should be drawn – since the frequency of the deceased’s visits to Dural seems to have been greater than the occasions on which repayments were recorded and there is nothing to suggest that the timing of those visits coincided with loan repayments.)

59 In November 1991, the deceased made a will (part of Ex 6) in which he named Mr Dable as his executor and, after a legacy of $25,000 to Ms Yolla Dable, left to Mr Dable the whole of his residuary estate. On its face, the will was prepared by a firm of solicitors in Burwood. In the submissions served for the Dables, it is said that the 1991 will was not disclosed until the first day of the hearing. Mr Dable, in cross-examination, denied having taken the deceased to any solicitor in Burwood, though he agreed he had taken the deceased to a solicitor in the city at some stage.

60 Mr Dable deposed (paragraph 43 of his affidavit) that in 1997 the deceased said to him words to the effect:

“It’s about time I officiated things by keeping my promise, and make the will out to you. Can I see your solicitor?”

61 Mr Dable says that later the deceased said words to the effect:

“I’ve made the will and I’ve made you my executor. If you’ve got any doubts you can inspect the will at his office.”

62 Mr Dable says that he declined that offer. Ms Yolla Dable (who deposes to a similar statement having been made to her) gave evidence that in 2002 she was shown a copy of an entry in Mr Abbott’s Deed Book referring to a “Tribe, Gordon” will of 25 February 1997 (Ex A p 16). I can only assume that the deceased had authorised Mr Abbott to disclose that information, since otherwise I cannot see any basis on which it would have been proper for Mr Abbott’s office to provide that information to her. If so, that seems to confirm Ms Yolla Dable’s evidence that the deceased told her at some stage that Mr Abbott had the will and that he, the deceased, would ring the office and “get [her] to put the will on the table for you to see” (Ms Yolla Dable, affidavit, paragraph 41).

63 The conversation recounted by Mr Dable in paragraph 43 of his affidavit seems somewhat odd, insofar as it would appear that, as at 1997, the deceased had already made a will consistent with his earlier assurances that he would leave his estate to Mr Dable (the 1991 will). It is not clear why the deceased would have suggested in those circumstances that he needed to “officiate” things or to “keep” his promise, unless he had either forgotten about the earlier will or was, for some reason, keeping the fact of the earlier will a secret from Mr Dable. I note this because I am conscious of the caution which must be exercised when considering evidence of this kind. It might be thought that this note of incongruity indicates an element of reconstruction on Mr Dable’s part, casting his case in a more positive light insofar as it suggests a binding element to the said promise. In saying this, I have regard to the observations of McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319 to the effect that reconstruction of events is a matter of ordinary human experience, and without suggesting any dishonesty on Mr Dable’s part.

64 In any event, the deceased did make a will in 1997 (Ex A p 14), in which he nominated Mr Dable as his executor and (after legacies jointly to Mouris and Denise Dable and also to each of their son, Ray, and their sisters Yolla and Lorraine), the deceased left the whole of his residuary estate to Mr Dable. That will was prepared by the Dables’ solicitor, Mr Abbott (or someone from his firm). I consider later the changes observed by the Dables in the deceased’s behaviour once he informed them that that will had been made.

65 It seems to have been around the time the 1997 will was made that the deceased became acquainted with Ms Royal. Her evidence was that she first met the deceased in early 1997 but that it was from 2001 (when she was at home on a full time basis), that she saw more of the deceased.

66 Meanwhile, in 2001, Mr Dable and his wife and children moved to Port Macquarie. The remainder of the Dable family stayed in Dural. After Mr Dable moved to Port Macquarie, the deceased transferred the account held in Mr Dable’s name into that of Ms Yolla Dable and she continued to operate two bank accounts for the deceased (St George and Freedom accounts) in the same fashion as Mr Dable had done. (There was no suggestion that the change of account-holders was due to any concern on the deceased’s part as to anything done or not done by Mr Dable in relation to the accounts nor does Mr Dable appear to have been upset or concerned by this.)

67 Mr Dable said that after he moved to Port Macquarie he called the deceased three or four times a week; and that he travelled every second weekend from Port Macquarie to visit his family at Dural and when he did so the deceased would visit him at the family home.

68 During the period from about 2002, the Dables’ IGA supermarket in Dural faced competition from a major supermarket chain. At or about that time, one or more of the Dables apparently became involved in property development in Port Macquarie (and the IGA business was apparently put forward as security, with the Dable family homes, for borrowings relating to their property development venture(s)). The Dables later closed the IGA business in July 2003.

69 At some stage (in about 2004/2005), there appears to have been what might loosely be described as a falling-out between the deceased and Mr Dable. No reference was made to this by Mr Dable in his affidavit (and it appears that none of the rest of the Dables was aware of this). Put to Mr Dable in cross-examination was an undated letter (Ex 7, tab 1) which Mr Dable accepted he had sent to the deceased by email over the internet in about 2004/2005. It was quite emotive in its terms and, as I think it significant in a number of respects, I have extracted below some of the contents.

70 The background to this letter, according to Mr Dable, was that (as a “test” of the deceased’s continuing friendship) he had requested that the deceased advance him a sum of $15,000 (to buy a boat or for them jointly to buy another boat). Mr Dable’s assertion, in the letter, that this request had been put solely as an “acid test” (ie to “test” the deceased on the strength of his devotion to him) was somewhat inconsistent with the fact that he accepted in the witness box that he did want the money at that time. The letter also contained a number of assertions (as to Mr Dable having provided moneys to his sister Yolla) which Mr Dable said in the witness box were not true. Therefore, I doubt that much reliance can be placed on the truth of the assertions contained in the letter (which, according to Mr Dable, were made in the heat of the moment). However, the fact that its contents were communicated to the deceased is of some relevance, as is the light which this letter sheds on Mr Dable’s understanding (or professed understanding) as to his relationship over the years with the deceased.

71 That letter included the following statements (reproduced as they appear in the text but with emphasis as emboldened):

Id like to go over a few things with you. Once you told me when you find a true friend bind him with steel and chain him with padlocks and never fire the first shot. Well im sorry, you have fired the first shot yourself. You call me a spoilt brat and that I turned out to be a monster.

From the day I met you, until I left Dural was there anything you wanted from me that I didn't do for you? Was there any time at any stage where you wanted me to meet you some where, or drive you to some place and I wasn't always on time. All the accidents you have had and times you were admitted to hospital wasn't I always there for you, bringing and taking things for you, checking your mail, I did anything you asked me for. I took you to the Chatswood doctor 4 or 5 times alone and I didn't mind at all. That's what true friends are for. How many business deals have we done together between I and the family, I have never let you down, and always paid you back with interest, both parties benefit from this.

…

Also I phoned you about 4 or 5 times after the operation and now once you mentioned the money or said "Bee give me a week or so and ill have the money ready when im a bit better." I knew straight away you were brushing me off and that's a very low act between long time friends who have done a lot of business over the years and its always been very very super successful. If I was a bad payer I could understand.

…

I still love you as much as ever, that's why im writing this letter to you. You have broken my heard for losing someone who I thought was a true friend. I wouldn't waste my time writing a letter for someone I didn't care about. But that's life.

Also I would like you to take my name out of the will, if there is a will

None of my family knows about this letter. Only myself. I'm running out of time but that's about all. Take care and goodbye forever.

The Bee. (My emphasis)

72 Mr Dable explained this in the following way:

I got cranky and upset because he did not give me the loan. For him to knock me down like that after all the things I did for him. On the spur of the moment I got real angry. (T 49)

It seems to me that there is no doubt, from its tone, that the letter was a heartfelt response to circumstances in which Mr Dable considered he had been disappointed or let down by a longstanding friend. Mr Dable described himself as broken-hearted at having lost someone he considered a “true friend”.

73 In terms of the relevance of this communication, first, it seems to me that the emailed letter is relevant to show, on Mr Dable’s part, not only what Mr Dable said he had done for the deceased over the years but also, and more significantly, that he considered this to be no more than what a “true friend” would do or might be expected to do.

74 Had Mr Dable provided other assistance over the years, of a different or more substantial kind (which might have been relied upon in these proceedings as detrimental reliance), it seems reasonable to infer that Mr Dable would have made reference to that other assistance in this letter. Rather, in the letter what Mr Dable focussed on (as he did in his answers in the witness box) was the fact that he had driven the deceased to various places (at the time after the deceased’s car accident) and had gone with the deceased or taken him to and from the hospital (or doctors). In the witness box Mr Dable emphasised this assistance, when asked to describe the extra effort he had taken, in reliance on the assurances as to the will: “Someone knocked off his four wheel drive – took him there running around looking for another car. Accident in Dural took him to Baulkham Hills, lot of times. Wouldn’t have done any of that if not in his will. Would not have run around to five or six different areas and spend three or four hours of time, would not have got up at midnight to go to hospital. Would have charged him for running around, not for a one off time but if I had got to drive him round to different places” (T 80).

75 Secondly, the letter makes very clear the value Mr Dable placed on the deceased as a source of financial assistance. Even assuming Mr Dable was not in need of money at that time or could have obtained it from other sources then or at earlier times (and notwithstanding that interest was paid on the loans over the years and the deceased may also have benefited therefrom), the fact that Mr Dable chose this as the “test” of the deceased’s friendship is telling, in my view. It suggests a level of dependence or reliance on the financial assistance provided by the deceased (and that Mr Dable perceived that he had already received some benefit from the relationship with the deceased over the years; a benefit which may be relevant to take into account when assessing, not so much the reliance placed by the Dables on the deceased’s assurances, but whether it was unconscionable for the deceased ultimately not to honour them).

76 That said, I do not read the letter as indicating that the sole (or even the main) reason that Mr Dable (and, perhaps by extension, his family) was providing hospitality and services to the deceased was (as was put to the Dables in cross-examination) that they were reliant on the deceased for the provision of finance, ie so that the deceased would continue to make loans to them. That is not the tenor of Mr Dable’s complaint in the letter – rather, that letter seems to be a complaint that, he having done so much for the deceased, it was unreasonable for the deceased not to provide the funds requested.

77 Thirdly, the reference to the “many business deals” is consistent with how Ms Royal says the deceased described his relationship with the family (as one in which he “had some business arrangements”), although I consider that that would not, on the evidence, have been a complete description of the relationship.

78 Finally, and most significantly in my view, the letter (whether in a fit of pique or otherwise) asks that the deceased take Mr Dable’s name out of the will. I do not read anything of significance into the words “if there is a will” (which at most seems to be hinting at a suggestion that the deceased’s word could not be relied upon – consistent with the general tenor of the letter being that Mr Dable had been let down by or “brushed off” by him).

79 When asked in the witness box if he doubted there was a will he said he “probably doubted it because let me down on the thing. I was trying to see if he was a true friend or not, how he was going to respond … just to make sure that there was a will. I said probably this bloke was just leading me on”. All of that is consistent with Mr Dable, at that stage, feeling that he had been badly treated by the deceased and therefore questioning the faith to be placed in his earlier assurances.

80 In the witness box, Mr Dable said that the falling out was resolved within the hour. However, given that the copy of this letter was one produced by the defendants, I can only assume the deceased had kept a copy of the letter in some form (whether electronically or in hard copy) and this might give rise to an inference (depending on what the deceased’s habits were as to the retention of email correspondence, as to which there is no evidence) that the deceased had lingering feelings about the things which had been said in the letter.

81 In any event, whether or not the two had made up their differences within the hour or so, as Mr Dable said, it seems to me to be difficult for Mr Dable (whatever the position may be for the rest of his family) to contend that it was unconscionable for the deceased thereafter to accede to that request and to take his name out of the will. Even had I otherwise been prepared to find up to that point that there was sufficient detrimental reliance on the alleged assurances to have made it unconscionable for the deceased to resile therefrom, as from the time of this communication I fail to see how Mr Dable can maintain a claim based on an estoppel of the kind asserted. Whether those words were seriously meant by Mr Dable or otherwise, he is left in the position that the deceased did just what he exhorted him to do – left him out of the will – and there is no suggestion that Mr Dable later retracted that request or that the deceased later expressly reinstated his earlier assurances about the will, at least to Mr Dable, as opposed to continuing to make general assurances to Ms Yolla Dable or others in the family.

82 Ms Royal, in her affidavit, deposed to a conversation with the deceased in 2004 in which she said he informed her he was about to travel to Castle Hill and said words to the effect:

I have to see these people in Castle Hill. I have known these people for a long time. I have had some business arrangements with them. They are mad – mad as snakes. I am thinking of giving them the flick. (para 11)

83 Whether or not that conversation coincided with the contretemps between Mr Dable and the deceased, I do not know. However, the fact there had been a falling-out or quarrel of some kind would seem to lend credence to the deceased having communicated to Ms Royal at around that time some dissatisfaction with at least one of the Dable family.

84 That said, whether or not the dispute or falling out with Mr Dable was the genesis for the comment allegedly made by the deceased to Ms Royal in 2004 about the family to the effect that he was thinking of giving them “the flick”, Ms Royal’s evidence is in itself odd insofar as Ms Royal does not record having expressed any curiosity (or having raised any query) as to the information relayed to her by the deceased (in such colourful terms) at that stage (or at least, if she did, chose not to put any such evidence before the court).

85 Notwithstanding the contretemps which led to Exhibit 7, the evidence from the Dables was that contact was still maintained with the deceased up to shortly before his death. This is supported by photographs tendered by the plaintiffs of the deceased at the Dable family house in Dural on 17 March 2007 and by the fact that the deceased provided Yolla Dable in March 2007 with money in advance on account of the tax payable on the account(s) held in her name for that year. Ms Yolla Dable says that on that occasion and at other times in 2007 the deceased was still saying to her that the estate was left to the family.

86 Meanwhile, Ms Royal says she developed a close friendship with the deceased and saw him regularly throughout 2004 and 2005.

87 It seems likely that, at least by 2006, the contact between the deceased and the Dables was somewhat less. Mr Dable was by then based in Port Macquarie (and not available to accompany the deceased on twice weekly boating trips) and Ms Royal says that from August 2006 the deceased regularly sought her assistance and that she took him on trips and expeditions, shopping and the like. (This friendship seems to be confirmed at least in general terms by Mr Tribe.) In her affidavit, Ms Royal referred to trips to Centennial Park to feed the ducks. In the witness box she expanded on that and referred to trips to Castle Hill, but said she did not take him to visit the Dables.

88 The deceased changed his will in 2006. Ms Royal gave evidence of a conversation with the deceased in September 2006 in which she says he said:

Rosie I have to change my will. At the moment the mob inherent [sic] everything, the lot. You’ve got to get me to see a solicitor. I don’t care if its your solicitor or John’s solicitor, any solicitor. I have to change my will.

89 When pressed in the witness box, Ms Royal (with an air of what I can only describe as smugness) said that the deceased told her the reason he wanted to change his will was that he had been “double-crossed”. At T 133 Ms Royal said, “He told me that they had lied and cheated and double-crossed him, and that was the reason he was changing his will”. There was no reference in Ms Royal’s affidavit indicating that the deceased had said anything about the “double-crossing”, nor was she able to say what he had meant by that, nor there anything put to the Dables to that effect (from which I infer there was no factual basis on which Counsel for the executors, Mr Freeman, could properly do so) or anything in the documents tendered before me which suggests that the Dables had in any way cheated the deceased.

90 The disinterest Ms Royal seems to have exhibited in this regard seemed quite extraordinary. It seems difficult to believe that someone in her position, being told that the deceased wanted urgently to change his will in order to disinherit beneficiaries who he said had lied, cheated and double-crossed him would not have asked at least some basic questions as to what had happened or why such a perception was held. Whether the lawyer who prepared the will could have shed further light on this is not known.

91 Following that conversation, Ms Royal arranged, through her husband, for the deceased to see Mr Peisley’s solicitor (a friend of some 50 years), Mr Goldberg. Mr Peisley and his wife drove the deceased to that appointment. According to their evidence neither was present when instructions were given as to the contents of the will and neither was a witness to the will. Mr Goldberg, a co-executor, who acted for the defendants in these proceedings, gave no evidence as to the circumstances in which that will was made. As noted, in that will apart from a small legacy to the deceased’s niece the whole of the estate was left to Mr Peisley and his wife.

92 It seems not unreasonable to infer that, just as he had apparently regarded the bequest of his estate as a “reward” for the Dables’ efforts in looking after him, the deceased had by 2006 formed a sufficiently close relationship with Mr Peisley and/or Ms Royal for him to contemplate leaving the estate instead to them.

93 Ms Yolla Dable gave evidence that the last time she saw the deceased was in March 2007 (on which occasion he provided her in advance with moneys referable to any interest due on the accounts held for him). From the words attributed to the deceased, it would appear that he was very conscious of the state of his health at that time. This payment might be thought to be inconsistent with the will provisions being in favour of the Dables, since had they been it would arguably have been unnecessary to have provided, separately, the moneys to cover any tax payable on the interest in the account. However, this was not raised in argument and it seems unlikely that anything turns on it.

94 Shortly prior to the deceased’s death (in April 2007) Ms Yolla Dable says the deceased confirmed in a telephone conversation with her that in his will he had left everything to the Dables and said that the instructions to his solicitors were in a package addressed to her in his house. The deceased was, according to Ms Royal, bedridden for a period prior to his death in hospital in April 2007. However, that does not suggest that a conversation of the kind recounted by Ms Dable did not occur.

95 Since the deceased’s death, it appears that the executors have made little attempt to quantify any tax exposure the estate may have (necessary before the estate can be finalised). Mr Peisley was given advice (Ex 1, a letter dated 21 April 2008) by accountants as to the outcome of certain enquiries made to the ATO. It appears that there is no evidence of any tax return filed by the deceased since about 1988 (coincidentally, or otherwise, a few years after the time the deceased arranged for Mr Dable to open the first bank account for him).

96 It is not apparent to me why Mr Peisley (or for that matter his co-executor) considers that it is appropriate to defer the quantification of any tax liability of the estate pending the outcome of this litigation, since (whether or not the executors hold the estate on trust for the Dables, on the one hand, or on the other hand for the named beneficiaries under the will, including Mr Peisley and Ms Royal) the executors clearly have a duty as executors to administer the estate.

97 Mr Peisley seemed quite unconcerned in the witness box that nothing had been done to quantify (or meet) any tax liability on the part of the estate. Mr Peisley confirmed that he had not been able to find any tax returns in the deceased’s affairs or any of his papers. He accepted that a decision had been made to leave any action in relation to tax liabilities until the case was determined, saying, rather surprisingly, “yes – nothing in the probate that was challenged as to liability”. In his oral evidence he suggested that it was once the litigation commenced that he decided not to do anything to determine the tax liability, but the letter of 21 April 2008 was received by him after court proceedings had already been commenced and therefore there is an inconsistency in his response, at least insofar as it suggested that a decision had been made in that regard or steps taken and then changed after the proceedings were commenced.

98 When challenged as to this, Mr Peisley’s response was, “[Possibly not]. The fact is the fax had not been secreted. It was found the other day in my own papers” and “First of all, it got confused with some of my own correspondence, as at the time, he was my accountant but also I think once there was a challenge to the estate [which he accepted was a challenge by the Dable family], on consultation with my co-executor [the solicitor acting for him in these proceedings] I thought it would be something we could leave over until we established exactly what had happened” (T 50). There was nothing in Mr Peisley’s affidavits about the liabilities of the estate other than an assertion that the estate could continue to expend moneys. There was no reference to any tax liability.

99 Mr Peisley professed to have limited personal knowledge of the state of affairs in relation to the administration of the estate. He said that the estate had been run from Mr Goldberg’s office and he assumed that he would have seen a statement on the estate, but that his co-executor would know (T 155). When asked as to the source of his knowledge as to the assets of the estate (and whether that was limited to the knowledge of his advisers) he, quite tartly, responded “Do you want me to read from my affidavit or do you have it in front of you?”.

100 Mr Peisley accepted that the source of the information and knowledge in his affidavit was from his solicitor (other than a valuation of the property in Paddington and as to the value of the car) and that he had sworn the affidavit in front of a solicitor from Goldbergs’ office. When asked if he had any personal knowledge or whether his knowledge was solely derived from the solicitors, he said, in a dismissive tone, “Part and parcel I would think. They are the executors of the estate and the estate is far from finished. No doubt there will be more outgoings in relation to the estate”. When asked whether he was not an active co-executor he said “It would appear so at the moment but no doubt we will sit down at some stage and work through all the details”. (My emphasis)

101 I was left with the distinct impression that Mr Peisley was waiting to see what the outcome of the litigation was before deciding whether it was worth his while to do anything actively to finalise the estate. That seems to me to be a matter of concern but its only relevance for present purposes lies in the submissions made as to the disproportionality of the relief.

Contract claim

102 The contract claim is based on the submission that promises made by the deceased to leave his whole estate to the Dables amounted, in effect, to an offer capable of acceptance by the conduct of the plaintiffs in continuing to look after the deceased and thus giving rise to a “unilateral” contract. It was said by Mr Horsley that the nature of such a promise (to leave the whole of one’s estate to someone, rather than merely to make a will in that person’s favour) was inconsistent with any implication of revocability. In other words, the Dables seek to distinguish this case from cases such as Taylor v Dickens, where, in the absence of a promise not to revoke the will, a promise to make a will in favour of a party was held not to give rise to an enforceable contract (on the basis, in that case, that it would be open, consistently with the contract, for a will to be made and then revoked).

103 The defendants, on the other hand, contend that for the Dables to succeed on the contractual claim it must be established that the promise made by the deceased included a promise never to revoke or alter his will. Reference was made by the defendants in this regard to Barnes v Alderton [2008] NSWSC 107 at [58] in which Young CJ in Eq (as his Honour then was) noted that “people are well aware that everyone can change their will as often as they like” and that the court will infer this unless there is evidence to the contrary.

104 In Gillett v Holt [1998] 3 All ER 917 at 950 Carnwath J referred (in the context of proprietary estoppel) to the statement that one should not count one’s chickens before they hatched as being:

[A]n apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard – and should be expected by the law to regard – a representation by a living person as to his intentions for his will.

In the generality of cases that is no doubt correct, and it is notorious that some elderly persons of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising.

105 The only evidence in this case that the deceased promised that he would not revoke the will was that given by Yolla Dable in her affidavit of 29 August 2008 at para 44, in a conversation which she says took place in Dural, in which she says she asked the deceased what happened if a person changed that person’s will and she attributes to the deceased the following:

The last one is the proper will. The first will gets revoked. You can make a will today, you can make another will tomorrow, you can make a will to somebody else. But if I make a will I’ll be making you the will. I would make up my mind before I made the will. I’ll be making up my mind that it’s for you people and there’ll be no changes.

106 However, the words “I’ll be making up my mind … there’ll be no changes” would be equally consistent with the deceased representing that he would regard any decision by him as to his will as final (inconsistent with the fact that he had already made a will in favour of Mr Dable and that that earlier decision had not been a “final” one) as with it being a promise not to revoke any such will.

107 A distinction was drawn by Mr Horsley between the deceased saying merely that he had left everything to the family because the family was so nice and the fact that in this case the representations or promises were tied to the provision of services by the Dables – “you will be greatly rewarded if you continue to look after me” (Mr Dable para 25; Yolla Dable 28 July 2008 para 45; Denise Dable para 23) or that “they were not wasting their time and would be rewarded” (Mr Dable paras 13, 25, 40, 46; Yolla Dable para 45; Denise Dable, 29 July 2008 paras 18, 22, 31, 45; Lorraine Dable 29 July 2008 para 13, 17, 23).

108 Whether or not a promise not to revoke a will can be implied out of a promise to “leave” one’s estate to someone (or by the circumstances in which it is said that the deceased offered to provide to Mr Dable and to Yolla Dable evidence of having in fact made the will), the difficulty I have with the Dables’ contractual claim is finding, objectively, an intention on the part of the deceased to enter into binding legal relations.

109 The reluctance of courts to assume such an intention in this area was recognised by Hoffman LJ in Walton v Walton (1994, CA, unreported), (as quoted in Thorner v Major [2009] UKHL 18 at [57]): “in many cases of promises made in a family or social context, there is no intention to create an immediately binding contract”. One reason identified by his Lordship for the reluctance of the law to assume such an intention was that such promises are often subject to unspoken and ill-defined qualifications in relation to what might happen in the future.

110 The evidence of the history of the personal loans made by the deceased to members of the Dable family showed the deceased to be pedantic in his documentation of what might in other respects have been seen to be fairly informal loan arrangements between friends. Almost all of the loan documents contained self-serving statements as to the fairness or generosity of the conditions of the loan agreements (which presumably can only have been included in order to forestall any subsequent challenge by the Dables in relation to the loans). Almost all of the individual repayments were attested to by both the deceased and one or more of the Dables. The deceased was apparently careful to have Ms Yolla Dable countersign most of the documents (perhaps because she had a better command of English than her sister and sister-in-law, whose evidence in court was given with the assistance of an interpreter, and a greater understanding of the family’s finances than Mr Dable). The deceased also carefully documented in March 2007 the receipt of advance payment on account of tax liability for the interest on the accounts held by Ms Yolla Dable. However, there was no similar documentation or record of any contractual promise on the part of the deceased to leave part or all of his estate to any one or more of the Dables.

111 The objective unlikelihood of the testamentary promises or assurances being intended to have contractual force, it seems to me, is that the promises were made from time to time commencing in the late 1970’s, according to the evidence of the Dables. It might be thought that if the deceased had intended to commit himself legally to such a promise there would have been some mechanism by which, if there were to be a change in his circumstances or in the relationship with the Dables or the provision of services on the part of the Dables in the interim, then the question whether the promise were to stand (and, if not, how the services provided up to that time were to be recognised) would have been taken into account. Similarly, if, as seems to have happened in the last years of his life, the deceased found someone else to perform much of the services which had been provided by the Dables, then there would be issues as to whether it was open to him, from a contractual point of view, to do so if the arrangements between them were objectively intended to be characterised as a contract.

112 Mr Horsley made reference to the “fairly iniquitous” position in which the Dables were under the contract because if, before the deceased died, they stopped providing services, then prima facie they at least would not have performed their part of the bargain and the services they had provided would all have gone to nought. It seems to me that this is a factor which points away from there being any objective common intention for there to be a binding contract (and, even more so, against there being an intention on the deceased’s part to make an offer of the Carbolic Smokeball kind).

113 It was submitted that all of the objective indicia on the part of the deceased was that he was to be bound to leave his estate to the Dables and that the solemnity of that promise was reinforced by the formality to which he went in relation to the making of the will. It does not seem to me that the making of a will of itself warrants the conclusion that this was done pursuant to a contractual objection to do so, even if promises had earlier been made to that effect. Further, the fact that the deceased had offered to provide evidence that he had made a will would be equally consistent with the deceased simply wanting to reinforce the assurances he had made, without there being any promise as to whether or not he might in the future change his mind.

114 The loan contract and repayment schedules in Ex 4 strongly suggest that if the deceased had intended to enter into binding contractual arrangements (albeit contractual arrangements of a different kind from the loan agreements) he would have documented this in writing. It seems far more likely that what the deceased was doing when making the testamentary assurances was leaving it open to change his mind in due course.

115 Furthermore, in general the assurances made by the deceased in relation to the leaving of his estate, as described by members of the Dable family, seem to me more consistent with the deceased acknowledging that services had been provided to him (or that the Dables had been very good to him or as to the depth of his then feeling for the Dable family) and assuring them that he would leave his estate to them in gratitude, or as a reward, for that, rather than the deceased accepting or acknowledging any contractual obligation to do so.

116 It was submitted that it was significant that the deceased was still confirming that everything was made out to the family at a time when he had actually changed his will and after he had been “bad-mouthing” the Dables behind their backs to Ms Royal. It was said that there was clearly bad faith on the deceased’s part and that the fact that he continued to say that he had left everything to the Dables indicated a consciousness on his part of that bad faith and a consciousness that he was breaching obligations he had put himself under to the Dables. I do not accept that such a conclusion necessarily follows.

117 The making of the representations alleged is not in my view sufficient to bring this case within the category of cases of unilateral contracts in Carbolic Smoke Ball. While the reference to being “well rewarded” does, as was submitted by Mr Horsley, suggest a link between provision of services and the reward, the content of and manner in which the assurances seem to have been made does not lead me to conclude that the deceased was making a contractual promise, as opposed to a non-contractual statement or assurance.

118 Having formed that conclusion, it is not strictly necessary to address the balance of the issues in relation to the contract claim (such as whether there was consideration and whether there was conduct amounting to acceptance of the offer). As to the former, however, I note that (as emphasised by Handley JA in Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298 at 307) a single peppercorn may constitute valuable consideration to support a simple contract. For the reasons adverted to by Kirby P in Woolworths Limited v Kelly (1991) 22 NSWLR 189 at 193-194 as to why the common law will not weigh the adequacy of consideration in judging whether a particular bargain amounts to a legally enforceable contract, it seems to me that if the deceased had in fact promised (with the requisite intention to enter into legal relations) that, in return for the continued provision of hospitality, companionship and personal services of the kind said to have been provided up to 1997, then, provided there was sufficient certainty as to what kinds of services were thereafter to be provided, this would be adequate (and not past) consideration to support a contract of the kind alleged (it not being suggested that there was any existing obligation to provide them).

119 While there may well have been scope thereafter for disputes to arise as to what was required to be provided (in terms of the quality or nature of the services), on balance I do not think that there would have been sufficient uncertainty in such a promise to render the consideration illusory or the contract too uncertain to be enforceable. Nor is this a case in which the subject matter of this promise (a promise to leave one’s estate) is uncertain. The promise would extend to whatever the estate might be at the time of death.

120 Therefore, had I been of the view that there was an offer in sufficiently certain terms to give rise, on acceptance, to a binding agreement, and that there was an intention to create legal relations, then I would have considered that there was sufficient consideration provided by reason of the acts in question. Insofar as the defendants alleged that the charitable acts proffered by the Dables would not constitute sufficient consideration, I would not have agreed.

121 As to acceptance of the offer, it may well be said that for some considerable time any acts taken by the Dable family to provide care and services to the deceased were done not in any conscious acceptance of a promise to leave his estate to them. Neither Yolla Dable nor Raymond Dable took the promises seriously at first. Similarly, Mrs Denise Dable deposed to the following conversation in which she seemed to have disclaimed reliance on the testamentary promise:

Mr Tribe: Don’t think I’m not going to pay you for what you’re doing for me. You’re going to get a lot of money from the will after I die.

I: Don’t say that. I don’t want you to. I’m not waiting till you die and to take money from you.

Mr Tribe: If I promise someone, I like to do it.

122 Hence, the submission as to uncertainty as to whether there was any specific act of acceptance of any such offer. I think a commonsense view needs to be taken on this point. If there had been an objectively ascertainable intention to enter into a contract along the lines that “If you continue to afford the hospitality at your home however frequently and of whatever kind that I request, then I will leave my estate to you”, then at least after 1997 when the family seems to have had more faith in the assurances, the continued provision of hospitality would in my view have amounted to sufficient acceptance of that offer.

154 There was some evidence given by Mr Dable to the effect that he did not understand that it was possible to change a will. That may well have been the case when Mr Dable was a 16 or 17 year old and the promise or assurance was made to him on such an occasion. However, at least by 2004 Mr Dable seems to have been well aware of the fact that a will could be changed, insofar as he urged the deceased (in the email extracted above) to take his name out of the will.

155 At T 85 in cross-examination Mr Dable accepted that he understood that the deceased could change his will if he wanted to, and that he knew that prior to the 2004/2005 communication in which he had invited the deceased to do so (Ex 7 p1).

156 Ms Yolla Dable was, on her own admission, aware before 1997 that it was possible for a will to be changed. In the witness box she accepted that she understood (after the deceased had explained this to her and prior to 1997), that a person could change a will at any time (T 14).

157 I do not consider that the evidence establishes that the deceased represented to (or induced or encouraged a belief by) the Dables that his promises to leave them his estate under his will were irrevocable. (Insofar as Ms Yolla Dable’s affidavit suggests that the deceased did say, in effect, “if I make a will in your favour then there will be no changes”, then apart from the difficulty that this evidence stands out on its own, there is the difficulty that Ms Dable does not, herself, appear to have placed any real faith in that assurance.)

158 In paragraph 92 her affidavit, Ms Yolla Dable says she did not take the deceased’s statements seriously before 1997. She explained this in the witness box as follows: “Because there was no evidence. He just, when a person says I’m going to do something and they haven’t done it yet why should I take it seriously?” Ms Dable said she did take him seriously after he said that he had made the will. Prior to 1997 it was a case of, “Well I was hoping that whatever he said he would do”. Ms Dable explained that he had said so many times that he was going to make the will and her attitude was “I’m waiting for that to see. When he did then of course I believed him”.

159 However, what the thrust of her evidence, in my view, made clear was that she regarded it as imperative not to do anything which might cause a change of heart on the deceased’s part and hence that she understood his assurance not to be an irrevocable promise.

160 It seems to me that this case is closest to the situation considered (but ultimately not there found to be the case) in Simpson-Cook, namely, that the Dables were not “counting” on the deceased leaving them his estate, rather they were hoping he would do so. In Simpson-Cook, there was an issue as to whether there had been reliance placed on a belief that the plaintiff would acquire the legal interest in the property or, as submitted by the defendant, that the prospect of receiving the property was regarded by the plaintiff as a mere chance. Bergin CJ in Eq noted that there had been some evidence that the plaintiff’s attitude at the time the promise was made was that she was “not counting on it” but it would be “nice if it happens”. Ultimately, her Honour was satisfied (with some reservations) as to the plaintiff’s explanation in her evidence of the expression “bird in the bush” and accepted that she had relied upon the assurances made by the deceased.

161 Similarly, Lord Walker of Gestingthorpe, in Yeoman’s Row Management Limited v Cobbe [2008] UKHL 55 at [66], emphasised that “hopes by themselves are not enough”, noting that “in those cases in which an estoppel was established, the claimant believed that the assurance on which he or she relied was binding and irrevocable”.

162 As to reliance generally, while it was suggested that the Dables’ conduct was referable to their need for the provision of loans, I do not accept this was the case. The loans made over the years were mostly in relatively small amounts. While they were at an interest rate that Mr Dable accepted was likely to be cheaper than bank interest rates at the time and without the need for the family members to provide statements of financial affairs or other documentation of the kind that might have been necessary for loans to be obtained from a bank or financial institution and if (as was seemingly accepted by Ms Yolla Dable, at least in relation to any loan(s) taken out to tide the IGA supermarket business over in 2002/3, when it was suffering competition from a large supermarket chain), such a loan would not have been able to have been procured from the Dable family’s bank, the fact that the Dables had obtained some benefit from the loan arrangements does not seem to me to demonstrate that what they did for the deceased was to protect the continuation of that relationship. The loans themselves ceased in about 2003 but there is no suggestion that thereafter the provision of services to the deceased ceased.

163 Mr Dable denied that the reason the extra effort had been shown to the deceased was because of the loans. At T 82 he said: “That's not true. The reason is I don't think we ever borrowed money, just thinking back, probably after we met him, probably after 15 years, 12 years, in the nineties, we probably borrowed the first lot. So, there was nearly 15 years since we met, and I was looking after him for at least a good 10 years.”

164 Similarly, Ms Yolla Dable at T 16 denied the suggestion that one of the reasons the deceased came to the house was to sign the documents in relation to the bank accounts or loans. (The last loan Ms Yolla Dable personally borrowed was in 2000, yet she continued to operate the deceased’s account for him up to his death and seems to have continued to spend time with him as part of the family until at least March 2007.)

165 What then was the reliance allegedly placed on the assurances? The defendants contend that the concept of “substantial” in this context has to be read in the light of the High Court and Court of Appeal authorities, citing Handley JA in Hawker Pacific at 307 E to 308 B as concluding that the test of reliance and detriment used the language of “material disadvantage”, “material detriment” or “significant disadvantage”. Handley JA (in contrast with the position in contract in relation to consideration) had noted that loss of a single peppercorn would not constitute a material disadvantage, material detriment or significant disadvantage for the purpose of estoppel.

166 The financial detriment to which the Dables pointed (other than the cost of providing coffee or meals, or petrol when driving the deceased here or there), was the provision of discounted or free groceries. Ms Lorraine Dable gave evidence as to the running of the supermarket in Dural. She said that at some times (when she was on the cash register and the deceased had bought things) she tried to give them to him for nothing and, if he insisted, as he sometimes did, to pay for the goods, then he was charged cost price. Ms Dable said she told “the girls” not to charge.

167 As to the non-financial detriment, what is said is that there was a significant increase in the services provided to the deceased after 1997 and, in any event, that what the Dables were doing for the deceased went beyond ordinary levels of hospitality (including in circumstances where the deceased was behaving in a rude and offensive manner towards the family).

168 What is consistent from the evidence of each of the Dables (and supported by the observations of Mr Neily) was that from the time the deceased told them (in about 1997) that he had made his will in their favour, the deceased behaved rudely, disrespectfully and offensively to the family, swearing and interrupting the family when they spoke in their own language (Lebanese) and saying words such as “Shut up. Speak English you bloody stupid new Australian” and the like.

169 Both Raymond and Yolla Dable seemed to accept that the companionship and hospitality afforded to the deceased would have been made whether or not there had been assurances made in relation to the will. The Dable family was not ungenerous in its provision of hospitality to family. Mr Neily, for example, was accorded considerable hospitality in terms of the provision of meals and the like by the Dables in Bondi and in Dural. To the extent that the deceased is said by his brother to have regarded Mr Dable “as a son”, the family in turn seems to have treated the deceased as an extended member of the family.

170 Mr Dable accepted that “in a way” what he had done was done as a friend but he said that he went out of his way and did a lot of things for the deceased over and above what he would have done as a friend. He said “What ever happened he promised I would get the estate and that was when I got wrapped up in him more”. Mr Dable said he regarded the deceased as a true friend and still did but that “I relied on his will. When I was 17 he promised he could leave me his estate and that’s when I really got wrapped up with him. In those days that sort of money for a 17, 18, year old boy was a lot of money” (T 49).

171 Mr Dable was adamant that he had done a lot of extra things and had gone out of his way because of what the deceased had promised him. When asked what he would have done if he had been told he was no longer in the will he said:

I wouldn’t have [done nothing afterwards for him]. I wouldn’t say it was nothing for him (back to zero). We would have a friendship like, fishing together, doing something together. But I am not going to say no, what I did for him, I would never have gone out of my way and done stuff for him like that (T 50).

172 As best as I could understand that response, what Mr Dable was saying was that he would have continued to do things as a friend with the deceased; would have continued to go fishing with him and would have continued, no doubt, to spend time with him but that he would not have gone out of his way to do it and the example that Mr Dable gave was quite telling in that he said that he might have taken him out once to look for a car to purchase after his accident but he would not have driven him around all over the place in order to do so.

173 At T 77 he said: “If he did not promise the will I would not have carried on with what I was doing … he always told me he was lonely”. “I would not have done as many things for him. If a friend asked me to go to the pharmacy, OK, I’d go …” but Mr Dable said that he had in effect given the deceased priority and dropped doing other tasks for him. Mr Dable accepted, nevertheless, that he had not been forced to hire extra staff to cover for him while those tasks were being done (and hence there was no direct financial detriment in that regard) (T 79).

174 Similarly, Ms Yolla Dable says had she known the family was not going to be in the will then she would not have spent so long on the phone talking to him and would not have had him in to visit and allowed him to stay in the house so frequently.

175 Mr Neily, who frankly conceded that he did not like the deceased because of the deceased’s attitude, had observed the deceased at the Dables’ home both before and after they moved to Dural. He said that at Dural the deceased was “always there drinking and eating” and when the family talked in their own language he would say, “Talk English you bloody wog” (T 88). He gave examples of rudeness on the part of the deceased when the latter demanded food or coffee. He said the deceased treated everybody like nothing.

176 Mrs Denise Dable gave various examples of the change in the deceased’s behaviour after he said he had made his will. Afterwards she said, if he asked her to do something she would have to do it straight away. She referred to him clapping his hands and saying, “When I’m clapping my hands I need a cup of coffee”. She said that he told her that she had to leave everything and that he was more important than her son and her family. Mrs Denise Dable said that before 1997 he was more considerate and more like a normal visitor. She said “he never tried to be bossy on me. He was not bossy on me before” (T 95).

177 I would accept that the deceased behaved as if he were entitled to order the Dables around and that his manner, in this regard was offensive to the Dables. Whether he so acted because he had by then made a will in favour of the family and was asserting a right to “boss” the family and to demand their undivided and immediate attention (which the Dables believe), I do not know.

178 While Ms Royal gave evidence that she found the deceased to be very respectful and that he never swore in front of anyone, there is no dispute that Ms Royal did not have anywhere near as long a relationship with the deceased as the Dables and she did not have any opportunity to observe the deceased’s interactions with the Dables. I considered that the evidence given by Yolla, Lorraine and Denise Dable as to the manner in which the deceased had behaved towards them was genuine. Each of them painted a broadly consistent picture of the deceased as someone who had demanded their attention in a “bossy” and often disrespectful or rude manner and who had no hesitation pressing his demands.

179 Mrs Denise Dable, denying that the Dables had put up with the deceased’s behaviour for the sake of the loans, said “The reason is because of will. He had made the will to my brother-in-law and Ray Dable’s family. He put my name on it and my son’s name too”. She said that the deceased had referred to the Dable family as “a hopeless family”. Mrs Denise Dable accepted that she did not like him after he started behaving that way. She said (T 99) he said "I am not giving you a salary, but I assure you, you would be getting thousands later on".

180 In terms of his rudeness and telling her to shut up, Mrs Denise Dable said “If my husband told me to shut up in front of my friends or cousins I would leave him. I divorce him. But I didn’t say nothing to him [the deceased] because he made the will”. She also said the deceased did not say things of that kind before he had made the (1997) will.

181 Ms Lorraine Dable also said that after the will the deceased had changed completely, “He liked to be the boss for the house, the family”. She gave examples of the deceased demanding attention immediately “I want coffee. I want coffee right now”, even if that meant interrupting what the family was doing, and said at T 106 he said things such as "Can you shut up, please, everybody because I'm talking." She gave evidence that he had said to her in the shop that she should leave customers alone and talk to him first.

182 I accept the evidence of the Dables that the deceased’s offensive behaviour after about 1997 was tolerated by some of the family members (particularly Denise and Lorraine) only because they considered that they had no choice but to do so because of the fact that the will had been made. Where I differ is in the interpretation to be placed on the tolerance exhibited by the Dable family in that regard – as I understand it, Mr Horsley submits that this was, in effect, an instance of the Dables’ acceptance of the deceased’s offer to leave his estate to them, or, at the least, detrimental reliance on it. I consider it more likely that the deceased’s conduct was tolerated (and to the extent that services over and above what would otherwise have been provided were performed) so as not to give the deceased any cause to change his mind in relation to the will (indicative of an understanding that it was open to him to at any time to do so).

183 I consider the more likely position to be, as Yolla Dable herself described it in paragraph 95 of her affidavit, that she and the family were concerned that “if we do not do everything for him as he demanded we might lose everything”. It is significant that Ms Dable’s view was that “the longer this went on, the more I had invested in putting up with his conduct, and the more I felt that that would be totally lost if I and the family did not continue to do what he wanted”. Although Ms Dable went on to say that she considered the family had performed its side of the bargain (and the deceased had not performed his) (para 96 of her affidavit), I think the more likely picture to be that the family tolerated the deceased’s behaviour (and, to the extent that they provided services to him over and above the bounds of ordinary hospitality, did so) in the hope that they would benefit greatly under the deceased’s will but not relying on the deceased to do so (so much as hoping that he would do so).

184 In Saliba, not unlike in the present case, representations were made by the deceased to the following effect, “You are both so good to me. I am going to leave you half of this house in my will”. A will was prepared in which provision was made for one half of the net estate to be left to the plaintiffs. Subsequently the deceased changed his will. Nicholas J referred to the unchallenged evidence of a third party which supported the accounts of the care given to the deceased and to other evidence which supported the account of the plaintiff’s wife’s visits to the deceased at an aged care facility and as to the close relationship between the plaintiffs and the deceased.

185 Nicholas J accepted that the services, which had previously been rendered to the deceased voluntarily, were, after the making by the deceased of the representations in relation to his will, continued “and intensified”. While the plaintiffs were motivated by friendship to provide services, his Honour accepted (at [42]-[43], [47]) that they continued out of a sense of obligation:

There can be no doubt on the evidence that both Mona and Joseph knew that they were to inherit half the deceased’s estate. There can also be no doubt that in continuing to care for the deceased they acted, not only out of friendship, but out of a sense of obligation or duty towards her in return for the inheritance upon her death.

On this issue it is also relevant that after the will was made the plaintiffs acted in the belief that they were obliged or constrained to continue their assistance, whereas before their conduct was motivated simply by friendship unaffected by any sense of duty.

186 In terms of the substance of the non-financial detriment, I accept that this case seems close to that considered by Nicholas J in Saliba. The defendants assert that the assistance provided in relation to domestic tasks (washing, ironing, altering clothes, entertaining and generally putting up with the deceased) would not be classified as detrimental reliance let alone as being substantial or material. Reference is made to the affidavit of Ms Yolla Dable sworn 29 July 2008 at [94] where she asserted that had she known that the deceased was not going to leave his estate to the plaintiffs or some of them she would not have, inter alia, spent so long sitting next to the deceased and listening to him and spent so long talking to him on the telephone.

187 It was said that there was nothing unconscionable in the deceased changing his mind as to the beneficiaries of his will in circumstances where there was no financial or other substantial detriment and that the underlying rationale of equity was not to save people from their own mistakes or to compensate them for broken promises or feelings of disappointment, but to save them from victimisation by other people.

188 It was submitted that equity cannot quantify the non-financial detriment claimed by the plaintiffs or render any significant award of money for time spent, inter alia, entertaining or putting up with the deceased. It was submitted by the plaintiffs that the services performed for the deceased were well beyond the ordinary bounds of hospitality and particularly insofar as the plaintiffs put up with more and more indignity at the deceased’s hands.

189 Mr Horsley pointed to the fact that both Yolla and Lorraine Dable deposed to conversations in which the deceased is said to have excused or explained his conduct by reference to the fact that he was leaving the family all of his estate “Yeah, but I’m leaving you all my money”; or “I’m leaving you all my money. I can order you around. I’m leaving you all this money after I die and you’ve got to look after me better” (Yolla Dable para 51, 60, 62, 67, 68; Lorraine Dable 29 July 2008 para 28, 33, 34).

190 What seems to me to be of relevance is the fact that extended members of the Dable family, who had not the same degree of affection or cross-relationship with the deceased, felt under a sense of obligation to continue to attend to the deceased’s wishes and almost, it would seem, wait on him hand and foot. However, I do not consider that the sense of obligation so exhibited was to the deceased as such but, rather, was an obligation to their brother not to preclude him from the opportunity to inherit the deceased’s estate. Therefore I do not see this case as one where there was that kind of “sense of obligation” which in Saliba led Nicholas J to consider that there had been sufficient detrimental reliance to give rise to an equitable estoppel in that case.

191 I should add that I find it difficult to see it as unconscionable (whatever the nature of the reliance which had up to then been placed on his assurances) for the deceased to act upon the express exhortation of Mr Dable to remove his name from the will. Insofar as the family’s conduct over the years seems largely to have been focussed on supporting Mr Dable’s interests in relation to the will, and the position in relation to the legacies to other individuals might be seen to follow on from that, I think the position of the rest of his family members to a large extent ultimately stands or falls depending on the position in relation to the assurances made to Mr Dable.

192 Though the question of relief does not arise as I do not find that the Dables have made out the proprietary estoppel asserted, I note that in Vukic, Brereton J (at [33]) said:

Commonwealth v Verwayen

Henderson v Miles (No 2)

prima facie

Giumelli v Giumelli

Jennings v Rice

Henderson v Miles (No 2),

193 In Ciavarella v Polimeni, similarly, Young CJ in Eq said (at [157]-159]):

The authorities indicate that where there is a proprietary estoppel by encouragement, the usual remedy is the fulfilment of the promise: see Barnes v Alderton at [67] et seq and cases there cited.

Jennings v Rice

Barnes v Alderton

194 In Simpson-Cook, as to the question of relief, Bergin CJ in Eq referred to the discussion by Brereton J in Vukic and Honour noted (at [19]) that:

Such a remedy may be declined where it would be disproportionate; for example, a claimant who established a proprietary estoppel on the basis of his expenditure on improvements to the subject was refused relief because he enjoyed 18 years of rent-free accommodation: Sledmore v Dalby (1996) 72 P & CR 196 CA. It may also be declined where there are special circumstances; for example, in Giumelli v Giumelli (1999) 196 CLR 101, the plaintiff’s younger brother who had done considerable work on the subject property, was awarded the alternative remedy of a monetary sum.

195 Here, the deceased’s conduct in resiling from a representation that the deceased would bequeath the estate or the whole of his estate to the Dables, has not resulted in any benefit to the estate as such (in the sense that in Simpson-Cook the reliance took the form of expenditure of an amount of money which otherwise would have gone to the plaintiff, on the property owned by the estate).

196 In Barnes v Alderton, Young CJ in Eq (as his Honour then was), considering the principles applicable to proprietary estoppel claims, said (at [42]):

No equity arises to raise a proprietary estoppel unless the person in whose favour it is being raised, has acted to their prejudice or detriment in some way whether in terms of direct expenditure or on some other basis: Greasley v Cooke [1980] 1 WLR 1306 at 1314. However, the detriment may not necessarily be expenditure of money, commonly a claimant leaves her job, moves in with the promisor and does his housekeeping for many years, such as in Jones v Jones [1977] 1 WLR 438. However, as set out in Pawlowski on the Doctrine of Proprietary Estoppel (Sweet & Maxwell, London, 1996) at pp 69 and following, minor expenditure such as day to day living expenses or minor repairs will not qualify.

197 In Jennings v Rice Robert Walker LJ said at [50]:

Meagher Gummow & Lehane

198 This was quoted by Young CJ in Eq in Barnes v Alderton who went on to say (at [70]):

Giumelli

Donis v Donis

Jennings v Rice

Giumelli

199 In that case, there was no strong evidence as to the value of the property; the plaintiff had suffered either no detriment or a minor detriment, and it was suggested that to give the plaintiff anything like $200,000 would not be an appropriate way of satisfying any equity she might have. His Honour thought that a very small amount of money to compensate for the loss of a chance would be the way on which the court would look on the matter rather than to reward her expectation with half the property or of a quarter of the property, as the case may be.

200 In Sullivan v Sullivan, Handley JA noted that the joint judgment in Giumelli established that there is no restriction in respect of the relief being limited to removing or reversing the detriment suffered by the party entitled to the estoppel; that relief may be moulded to recognise practical considerations and to take into account the impact of orders on third parties and any hardship or injustice they would suffer. Handley JA noted that:

Jennings v Rice

ibid

Giumelli

Verwayen

“Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.”

Giumelli

“The prima facie entitlement to which his Honour had referred would be qualified if that relief ‘would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party’.”

201 In this case it was submitted that the relief sought was out of all proportion to the detriment at least insofar as the detriment consisted of putting up with what might have been considered unacceptable or offensive conduct within the family situation in extending hospitality to the deceased. Nevertheless, the very difficulty in putting a value on years of support of that kind makes it difficult to suggest that the relief to be granted should be otherwise than making good the expectation, particularly when it has not been suggested that this would operate in any way unconscionably or with undue hardship to the beneficiaries of the estate.

202 Had I been otherwise satisfied that the claim based on estoppel was made out, I would not have considered the enforcement of the Dables’ expectation to be inequitably harsh nor would it be unjust to the defendants. It does not seem to me that it could be said that this expectation would have been so extravagant or out of all proportion to the detriment suffered by the Dable family (particularly in circumstances where it is difficult to ascertain (due at least in part to Mr Peisley’s curious inaction) the actual extent of the estate).

Conclusion

203 I am not satisfied that there has been established an objectively ascertainable intention on the part of the deceased to enter into a binding legal contract in relation to the promises made by him in relation to his will. Therefore, the contract claim fails.

204 As to the estoppel claim, while I find that there were a number of assurances made over the years to the effect that the deceased would leave his estate to the Dables, I do not find that there was sufficient financial (or substantial non-financial) detrimental reliance on those assurances such as to make it unconscionable for the deceased (or now the estate) to depart from those assurances.

205 I consider it more likely that the conduct of the Dables in extending companionship and hospitality and providing personal services prior to 1997 was out of friendship (and the hope that the deceased might make good his assurances) and that thereafter the tolerance the Dables showed to his changed behaviour was similarly motivated (though in that case the hope was that the deceased would not change his will, and thus would make good his assurances).

206 I am therefore of the view that the estoppel claim also fails.

207 I dismiss the proceedings with costs.

**********

Citations

Dable v Peisley [2009] NSWSC 772

Most Recent Citation

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CITATION:	Dable v Peisley [2009] NSWSC 772
HEARING DATE(S):	9, 10 and 11 June 2009
JUDGMENT DATE :	7 August 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	Plaintiffs claims dismissed.
CATCHWORDS:	CONTRACTS – general contractual principles – offer and acceptance – whether deceased contracted to leave estate to plaintiffs in exchange for provision of hospitality and personal services – whether objectively ascertainable intention legally to be bound – whether consideration sufficient – whether offer accepted – held that no contract existed – no objectively ascertainable intention legally to be bound - ESTOPPEL – proprietary estoppel – whether deceased’s executors estopped from denying plaintiffs’ interest in estate – held that deceased had made assurances that he would leave estate to one or more of the plaintiffs – assurances not understood to be irrevocable and not relied upon as such – held no significant detriment suffered – not unconscionable for deceased to act contrary to assurances made.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Austin v Keele (1987) 10 NSWLR 283 Australian Crime Commission v Gray [2003] NSWCA 318 Barnes v Alderton [2008] NSWSC 107 Birmingham v Renfrew (1936) 57 CLR 666 Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 Ciavarella v Polimeni [2008] NSWSC 234 Equititrust Limited v Franks [2009] NSWCA 128 Flinn v Flinn [1999] 3 VR 712 Galaxidis v Galaxidis [2004] NSWCA 111 Gillett v Holt [1998] 3 All ER 917 Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298 Palmer v Bank of New South Wales (1975) 133 CLR 150 Ramsden v Dyson (1866) LR 1 HL 129 Saliba v Tarmo [2009] NSWSC 581 Simpson-Cook v Delaforce [2009] NSWSC 357 Staib v Powell [1979] Qd R 151 Taylor v Dickens [1998] 1 FLR (Eng) 806 Thorner v Major [2009] UKHL 18 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Walton v Walton (1994, CA, unreported) Watson v Foxman (1995) 49 NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Woolworths Limited v Kelly (1991) 22 NSWLR 189 Yeoman’s Row Management Limited v Cobbe [2008] UKHL 55
TEXTS CITED:	Meagher Gummow & Lehane [17-110] Spry Equitable Remedies 7th Ed 2007
PARTIES:	Raymond Dable (First Plaintiff) Yolla Dable (Second Plaintiff) Mouris Dable (Deceased) by his Administrator, Denise Dable (Third Plaintiff) Denise Dable (Fourth Plaintiff) Lorraine Dable (Fifth Plaintiff) John Harvison Peisley (First Defendant) Grahame Goldberg (Second Defendant)
FILE NUMBER(S):	SC 1032 of 2008
COUNSEL:	R Horsley (Plaintiffs) C Freeman (Defendants)
SOLICITORS:	Jonathan Abbott & Associates (Plaintiffs) Goldberg Lawyers (Defendants)