Daniel v Athans

[2022] NSWSC 1712

Supreme Court

New South Wales

Medium Neutral Citation:

Daniel v Athans [2022] NSWSC 1712

Hearing dates:

8 – 10 August 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Equity

Before:

Robb J

Decision:

The Court:

(1) Declares that the defendant as administrator of the estate of the late Richard John Janson (the deceased) holds the deceased’s property at [No 36] on trust for the plaintiff.

(2) Order that the defendant as administrator of the deceased’s estate cause [No 36] to be transferred to the plaintiff within 28 days of these orders.

(3) Orders that the plaintiff’s costs be paid out of the deceased’s estate on the ordinary basis.

(4) Orders that the defendant’s costs be paid out of the deceased’s estate on the indemnity basis.

Catchwords:

ESTOPPEL — proprietary estoppel — encouragement — plaintiff and deceased close friends for over twenty years — deceased and deceased’s mother own neighbouring properties — deceased allows plaintiff to reside rent-free in his property while deceased lives with mother — whether deceased represented to plaintiff that he could reside there ‘for good’ if he paid certain expenses and provided assistance to deceased’s elderly mother — whether deceased later represented to plaintiff that deceased would transfer property to plaintiff for fulfilling assistance asked of him — whether plaintiff has equitable interest in property because of proprietary estoppel — estoppel claim successful

SUCCESSION — family provision — claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — whether eligible person — whether factors warranting — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — family provision claim successful in alternative

Legislation Cited:

Evidence Act 1995 (NSW), s 140

Succession Act 2006 (NSW), ss 57, 58, 59, 60, 91

Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.10

Cases Cited:

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chisak v Presot [2022] NSWCA 100

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 488; [2010] NSWCA 84

Evans v Evans [2010] NSWSC 170

Evans v Evans [2011] NSWCA 92

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692

Moore v Aubusson [2020] NSWSC 1466

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220

Sarant v Sarant [2020] NSWSC 1686

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Spata v Tumino [2018] NSWCA 17

Sun v Chapman [2022] NSWCA 132

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Raymond Daniel (Plaintiff)
Luke Athans (First Defendant)
Valerie Janson (Second Defendant)

Representation:

Counsel:
C P Birtles & J Green (Plaintiff)
J E Armfield & J Shandil (First Defendant)

Solicitors:
Barwick Boitano Lawyers (Plaintiff)
Owen Hodge Lawyers (First Defendant)

File Number(s):

2021/00197698

Judgment

Introduction

1. These proceedings concern the estate of the late Richard John Janson (the deceased) who died on 23 April 2019 in a car accident after he suffered a brain aneurysm while driving. The deceased was 67 years of age.

2. The deceased was survived by his mother, Ms Valerie Janson (Val), and his brother, Mr Kevin Janson. The deceased was also survived by two persons whom the Court has found to have played a significant role in the lives of the deceased and Val, namely Mr Raymond Daniel and Ms Francine Daniel.

3. The parties and witnesses called in these proceedings often share common family names so I will, without intending undue familiarity or disrespect, refer to the persons involved in the proceedings by their given names where it is convenient to do so.

4. Raymond, the plaintiff in these proceedings, claims to have been a close friend of the deceased, and, from about 2005 until the date of the deceased’s death, a member of the deceased’s household and dependent on the deceased for his accommodation. Though still married, Raymond and Francine are separated but remain friends, and Francine says she was, for some period of time, Val’s carer.

5. The deceased did not leave a will and hence died intestate. Letters of administration of the deceased’s estate were initially granted to Val on 18 September 2019. The effect of the intestacy provisions in the circumstances was to make Val the sole beneficiary of the whole of the deceased’s intestate estate.

6. The primary assets in the deceased’s estate are two real properties at Merrylands West and North Richmond respectively. There are two adjacent parcels of real property at Merrylands West, both of which are relevant to these proceedings. To maintain the privacy of the parties, I propose in these reasons to refer to the deceased’s property as No 36 and the adjoining property, owned and occupied by Val at the date of her death, as No 34, in reference to their respective street numbers. Raymond has lived in the deceased’s property at No 36 since 2005.

7. In September 2019, Val instructed her solicitor to prepare a will for her which she executed on 14 October 2019 (Val’s 2019 Will). The relevant terms of Val’s 2019 Will were:

…

2.   I APPOINT my friend FRANCINE DANIEL to be my Executor and Trustee (‘my Executor’).

3.   I GIVE the whole of my estate to my Executor on trust as follows:

(a)   as to a forty percent (40%) share, for my friend FRANCINE DANIEL absolutely;

(b)   as to a thirty percent (30%) share, for my friend RAYMOND DANIEL;

(c)   as to a twenty percent (20%) share, for my son KEVIN JANSON; and

(d)   as to a ten percent (10%) share, for my friend DIANE CAMPBELL.

…

8. Mr Luke Athans, the defendant in these proceedings, is the biological son of the deceased. In April 2020, Luke visited Val for the first time asserting that he was the deceased’s son. The circumstances of Luke’s discovery of his parentage are not known to the Court, and Luke’s existence was unknown to Val, Kevin, and Raymond until his appearance in their lives in April 2020. The parties now agree, on the basis of subsequent DNA testing, that Luke is in fact the biological son of the deceased.

9. Subject to the outcome of these proceedings, Luke is therefore entitled to the whole of the deceased’s intestate estate as the deceased’s only child. Luke’s appearance in the lives of Val and Raymond in April 2020 dissolved the basis for the grant of letters of administration to Val, and to her entitlement to the whole of the deceased’s intestate estate. It also dissolved the basis upon which Raymond, who had been residing in No 36 until this time ostensibly with Val’s consent, could continue to reside in that property.

10. It is agreed that Raymond and Val were put on notice of results of two DNA tests of Luke in February 2021 and June 2021. Raymond first sought legal advice in respect of the consequences of Luke’s appearance in late June 2021. Raymond commenced these proceedings by statement of claim on 10 July 2021. Luke filed his defence on 29 July 2021.

11. Val made her last will on 30 October 2021 (Val’s 2021 Will). The only material difference between Val’s 2019 Will and Val’s 2021 Will is that Val removed the gift of 10 percent of her estate to Ms Dianne Campbell and increased the gift to Francine from a 40 percent share to a 50 percent share. Val died on 6 November 2021. Probate of Val’s 2021 Will was granted to Francine on 28 April 2022.

12. In his statement of claim, Raymond named Luke and Val as first and second defendant respectively. This was apparently because, as was alleged in pars 3 and 4 of the statement of claim, the Court had granted letters of administration of the deceased’s intestate estate to Val on 18 September 2019 but made orders on 5 July 2021 revoking the grant to Val and instead granting letters of administration to Luke.

13. In his defence filed on 29 July 2021, Luke replied by saying that the revocation of the grant of letters of administration to Val and the issue of fresh letters of administration to Luke had not yet taken place, but that Luke was entitled to the revocation of Val’s grant and to the grant of letters of administration in his favour.

14. The Court is not aware of orders made on 5 July 2021 as alleged in Raymond’s statement of claim. For relevant purposes, it is however aware of orders made by Hallen J on 3 August 2022 in the related proceedings concerning the contest as between Luke and Francine, as executrix of Val’s estate, over the grant of letters of administration of the deceased’s estate, in which his Honour made the following relevant orders:

THE COURT IN CHAMBERS:

…

2.   Orders that Letters of Administration of the deceased’s intestate estate granted on 18 September 2019 to Valerie Joan Janson be revoked.

3.   Orders subject to compliance with the Probate rules of Court, that letters of administration of the intestate estate of the deceased be granted to the Plaintiff, the sole beneficiary entitled to the whole of the deceased’s estate under the operation of the rules of intestacy.

4.   Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

15. The parties and the Court in these proceedings operated on the basis that the grant to Luke had not been completed in a formal way by the time of the hearing. On that footing, the Court made orders on the final day of the hearing granting administration of the estate of the deceased to Luke for the purpose of permitting Raymond’s application to be dealt with, appointing Luke to represent the estate of the deceased for the purpose of these proceedings, and removing Val as a party to the proceedings, pursuant to s 91 of the Succession Act and rr 7.10 and 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) respectively. The Court made no order as to Val’s costs.

16. On 10 December 2021, Hallen J made orders in these proceedings whereby Luke was restrained from entering No 36, interfering with Raymond’s quiet possession, and dealing with the property, upon the condition that Raymond pay the water rates, council rates, electricity charges, and the reasonable costs of home insurance of No 36, as well as an occupation fee of $100 per week to Luke, the first such payment taking place on 17 December 2021.

17. The primary relief sought by Raymond is a declaration that the administrator of the deceased’s estate – in the present circumstances, Luke – holds No 36 on trust for Raymond and an order that No 36 be transferred to Raymond. This relief is sought on the basis of an equitable estoppel arising from a series of representations that Raymond alleges the deceased made to him in respect of Raymond’s occupation and, later, ownership of No 36.

18. Alternatively, Raymond seeks an order that the administrator of the deceased’s estate pay equitable compensation to Raymond, and in the further alternative an order for further provision from the deceased’s estate under Ch 3 of the Succession Act 2006 (NSW). Though it was not sought in Raymond’s prayers for relief or pleadings, his counsel’s submissions acknowledged that his family provision application has been brought out of time and that an order of the Court is required to allow Raymond to bring that application.

19. A significant feature of this case is that Val died after the commencement of these proceedings but before the date of the hearing. Before her death, Val made three affidavits which were read in these proceedings, but she could therefore not be cross-examined on that evidence.

20. Another significant feature of this case is that Luke never knew his father, the deceased. Though his evidence did not give a complete account of his life, it is apparent that Luke made himself known to Val only after the deceased’s death. Luke was therefore unable to give any evidence relevant to the events that Raymond alleges gave rise to the equitable estoppel in respect of No 36. Luke called as witnesses two long-time friends or acquaintances of the deceased whose evidence, if accepted, would tend to cast doubt on the quality of relationship between the deceased and Raymond, but whose evidence I have not found persuasive on the issues in this case.

21. By contrast, the evidence given by Raymond and his witnesses has painted a clear picture of the deceased’s family life and the integral role that Raymond and Francine played in supporting Val and the deceased as part of an initial arrangement struck between Raymond and the deceased sometime in late 2004 or early 2005, and which evolved into a new arrangement sometime in around 2016.

22. The Court was left to come to the compelling conclusion that the deceased – in circumstances where he was apparently oblivious to the existence of his son, was of the reasonable expectation that he would survive his elderly mother, and where he maintained a pleasant but relatively distanced relationship with his brother, the only surviving member of his family – intended that Mr Daniel, his closest friend, would be the recipient of his property at No 36.

23. In the result I have concluded that Mr Daniel has succeeded in his equitable estoppel claim and that the appropriate remedy is a declaration that Luke, as administrator of the deceased’s estate, holds No 36 on constructive trust for Raymond. It has been unnecessary to determine the alternative family provision application, but I have proceeded to make some nominal findings on that part of the proceedings at the end of these reasons.

Equitable estoppel claim – overview of the claim

24. In circumstances where there has been “an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff”, the Court may grant relief to vindicate the assumption in whole or in part: Giumelli v Giumelli (1999) 196 CLR 101 at 112; [1999] HCA 10 at [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 488; [2010] NSWCA 84 at [21] (Handley AJA, with whom Allsop P and Giles JA agreed at 485 [1] and 486 [6] respectively); Sidhu v Van Dyke (2014) 251 CLR 505 at 511; [2014] HCA 19 at [2] (French CJ, Kiefel, Bell and Keane JJ). This describes the species of equitable estoppel known as proprietary estoppel by encouragement: Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227 at 257; [2021] NSWCA 242 at [116]-[117] (Bathurst CJ, with whom Bell P and Leeming JA agreed at 267 [170] and 267 [171] respectively).

25. In Trentelman v The Owners – Strata Plan No 76700, Bathurst CJ set out (at 257-8 [117]-[118]) what I respectfully consider to be the contemporary state of the law in respect of what a plaintiff must prove to establish a claim for proprietary estoppel by encouragement. The Chief Justice drew on the authoritative statement of Handley AJA in Delaforce v Simpson-Cook at 488 [21] and the observations of Keane J in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at 45-6; [2016] HCA 26 at [147]-[150]. The elements to be proved are that:

1. An owner of property (the representor) has encouraged another (the representee) to alter his or her position in the expectation of obtaining a proprietary interest; and

2. The representee has relied on the expectation created or encouraged by the representor; and

3. The representee has changed his or her position to their detriment; and

4. The detrimental reliance makes it unconscionable for the representor to depart from the promise or representation.

26. Raymond pleaded his equitable estoppel claim in pars 11 to 26 of his statement of claim. It will be convenient to make some observations on the pleadings against the backdrop of the legal framework just stated.

27. Raymond’s case is pleaded in two tranches, each of which consists of a pleading as to representations made by the deceased to Raymond and a subsequent pleading as to Raymond’s response to these representations in the form of work and assistance rendered to the deceased and Val.

28. The first tranche concerns what the pleadings refer to as the “2005 Representations”, pleaded at par 11:

11.   In late 2004 the deceased made express oral representations to Raymond to the effect that if he:

a.   looked after Val when the deceased was not around;

b.   helped the deceased to clean up [No 36]; and

c.   assisted to pay the bills and rates;

then Raymond would be able to occupy [No 36] as long as he wished.

(“2005 Representations”)

29. Raymond’s pleading does not particularise the precise words of the representation or representations made by the deceased to him. The flexible quality of the pleading had the effect that Raymond was free to particularise the representation or representations through his evidence.

30. The significance of this flexibility is that, beyond being satisfied that the deceased made representations of the tenor pleaded, it will be necessary for the Court to determine whether, as Luke ultimately submitted, the representations made by the deceased gave rise to any conditions, explicit or implicit, which have not been satisfied, and which would have the effect that Raymond is precluded from relief.

31. Raymond then pleaded at pars 12 to 14 that, from early 2005 to 2016, Raymond rendered what the pleadings refer to as the “Initial Work and Assistance” in respect of No 36 and of Valerie which Raymond claims to have undertaken in reliance on the 2005 Representations and which the deceased ought to have known was undertaken in reliance on those representations.

32. The second tranche concerns what the pleadings refer to as the “2016 Representations”, the pleading of which has the same flexible quality as the pleading of the 2005 Representations. That pleading, at par 15, reads:

15.   In early 2016 the deceased made express oral representations to Raymond to the effect that:

a.   he would give [No 36] to Raymond.

b.   [No 36] belonged to Raymond.

33. It is important also to note the subsequent pleadings as to the nature of the 2016 Representations:

16.   Between 2016 until his death, the deceased asserted in conversations with friends that [No 36] belonged to Raymond.

17.   Between 2016 until his death, the deceased had conversations with his mother Val in the presence of Raymond regarding the arrangements to transfer ownership of [No 36] to Raymond.

34. There is a hedging quality to these pleadings. On the one hand, Raymond has pleaded that the deceased made representations that Raymond was presently entitled to No 36, at least in some unregistered, de facto sense: pars 15(b), 17. On the other hand, Raymond has pleaded that the deceased made representations that Raymond would later be entitled to No 36 after the deceased undertook to transfer ownership of No 36 to Raymond in a registered, legal sense: pars 15(a), 16. As will be seen, this became an issue between the parties in circumstances where the deceased died before effecting the legal transfer of No 36 to Raymond.

35. Raymond then pleaded at par 19 that, from 2016 onwards, Raymond rendered what the pleadings refer to as the “Further Work and Assistance” in respect of the two Merrylands West properties and of Valerie.

36. The difference in the expectations said to have been induced by the two tranches of representations has the effect that Raymond’s equitable estoppel claim can, on one reading, operate as two claims with two potentially different outcomes. The claim based on the 2005 Representations pleads an expectation that Raymond would be entitled to occupy No 36 as long as Raymond wished, in respect of which the appropriate relief would likely be in the form of an irrevocable licence or life interest in the property: see Evans v Evans [2010] NSWSC 170 at [39]-[41] (Brereton J, as his Honour then was); cf Evans v Evans [2011] NSWCA 92 at [11] (Campbell JA, with whom Giles JA and Sackville AJA agreed at [1] and [151] respectively). In contrast, the claim based on the 2016 Representations pleads two expectations, in respect of either of which the appropriate relief would likely be in the form of the institution of a constructive trust over No 36 in Raymond’s favour and an order causing the transfer of No 36 to him.

34. It is relevant that, by contrast with common law rights created by contract, the equity giving rise to equitable estoppel is not prospective in nature, rather it is retrospective; that is, “[t]he equity involved in proprietary estoppel operates by considering whether it would be contrary to good conscience (measured according to equity’s standards) for a defendant to disappoint the expectation that the plaintiffs have. The relevant time for the consideration is the time that the defendant seeks to disappoint that expectation”: Evans v Evans [2011] NSWCA 92 at [107] (Campbell JA).

35. In that context, as a matter of doctrine, a claim on the basis of the 2016 Representations requires the Court to carefully assess the evidence of those representations and the events which followed them until such time, in this case, as the administrator of the deceased’s estate sought to disappoint Raymond’s expectation. But, both as a matter of doctrine and a matter of forensic reality, whether the later representations were in fact made and whether those later representations have the legal significance alleged are questions that can only be answered within the context of the relevant history preceding the later representations, which includes the fact of the earlier representations and subsequent conduct of the parties: see Evans v Evans [2011] NSWCA 92 at [104]-[110] (Campbell JA).

36. The outcome is that Raymond can succeed in an equitable estoppel claim on the basis of either tranche of representations and subsequent conduct. If the Court is satisfied that Raymond is successful in respect of the earlier tranche, it is not precluded from being satisfied that Raymond is successful in respect of the later tranche, on the basis that the later tranche becomes operative from such time as the elements of the claim are satisfied and gives rise to its own relief independent of any relief arising from the earlier tranche. Of course, however, success on the earlier tranche would precipitate different relief than success on the later tranche, and success in respect of one tranche does not precipitate success in respect of the other, though success in respect of the earlier tranche has an evidentiary effect on the success or otherwise of the later tranche.

37. As in all civil proceedings, but especially in a case such as this where the primary allegations pertain to representations in respect of ownership of residential property made by persons who are now deceased and unable to give evidence or be tested on it, the Court applies the mode of judicial philosophy embodied in s 140 of the Evidence Act 1995 (NSW) and the oft-quoted statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34. Section 140 provides:

(1)   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—

(a)   the nature of the cause of action or defence, and

(b)   the nature of the subject-matter of the proceeding, and

(c)   the gravity of the matters alleged.

41. In Briginshaw v Briginshaw (at 361-2), Dixon J stated:

… The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. …

42. The evidence adduced in this case was limited by certain forensic realities. One matter referenced above is that both the deceased and Val are now deceased such that the former was unable to give evidence and the latter was unable to be cross-examined on her affidavit evidence. I accept Luke’s submission that “the Court exercises caution in weighing any evidence of any alleged conversation with a deceased person”: Sarant v Sarant [2020] NSWSC 1686 at [92] (Hallen J), citing Plunkett v Bull (1915) 19 CLR 544 at 548-9 (Isaacs J); [1915] HCA 14.

43. I also accept Luke’s submission that the Court looks for corroboration of communications with deceased persons, and treats “uncorroborated evidence of such communications with considerable caution”: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 (McLelland CJ in Eq), quoted in Sarant v Sarant at [94] (Hallen J). However, as Hallen J noted in Sarant v Sarant at [96], there is “no absolute legal requirement” for corroboration of such communications, and the fact that a claim relies significantly on such communications is not of itself fatal to the claim. In the circumstances, I have treated evidence of the deceased’s and Val’s words and conduct with an appropriate level of scrutiny when considering the evidence as a whole.

44. It is important that the first of Val’s affidavits read in these proceedings was an affidavit dated 28 January 2021 in related proceedings in which she sought her own family provision application from the estate of the deceased and was therefore evidence given before Raymond ever sought legal advice in respect of his own claim. The evidence contained in that affidavit possesses an element of independence from Raymond’s claim which, at times, had the effect of differing from some of Raymond’s evidence. It cannot be said that the evidence given in that affidavit was wholly aligned with Raymond’s interests, yet it nonetheless tended to confirm important aspects of Raymond’s claim.

45. I have accepted Raymond as a witness of truth. In cross-examination, he exhibited a palpable affection for his friend, the deceased. Raymond was prone at times to wander from questions which he perhaps perceived to impugn the honour of the deceased or to add too great a technical dimension to his relationship with the deceased. I understood Raymond’s occasional excursions from direct questions not as an obfuscation of the truth but as an understandable reaction given the emotion wrapped up in the proceedings. He readily made concessions against interest, including in respect of the deleterious effects of his problem gambling on his marriage and his financial wellbeing.

46. In cross-examination, Raymond accepted that he had continued to place bets at the TAB until October 2021, and further accepted that he had not disclosed expenditure on gambling in his affidavit evidence. Raymond accepted that he could have disclosed that information if he had been so minded but denied that he knew he had to disclose that information. Without disregarding the obligation on all applicants for family provision to disclose their financial and material circumstances fully and frankly, I am not minded to draw from this apparent failure of disclosure an inference that Raymond was any less credible a witness. Raymond’s counsel acknowledged that Raymond’s disclosure of his expenditure on his entertainment was probably an underestimate but submitted that it was not a deliberate falsehood. Raymond did not shy away from acknowledging his issues with gambling.

47. Naturally, Raymond bears the onus of proof in establishing his claim on the balance of probabilities, informed by the principles set out above. Nonetheless, another important forensic matter referenced above is that Luke was not present in the life of the deceased at all and was therefore unable to give evidence bearing directly on the arrangement forming the basis of Raymond’s equitable estoppel claim. Instead, Luke’s factual defence of the claim relies on the evidence of Ms Dianne Campbell, a neighbour of the deceased’s North Richmond Property, and Mr Raymond Esber, a long-time friend of the deceased, and on the cross-examination of Raymond and his witnesses. It has ultimately been important to take into account the capacity of each witness to observe the daily lives of the deceased, Val and Raymond in Merrylands West over the course of some 23 years between the first meeting of the deceased and Raymond in 1996 and the deceased’s unexpected death in 2019.

48. Luke’s case on the equitable estoppel claim essentially consisted of the following submissions:

1. There is no corroboration of the 2005 or 2016 Representations in Val’s affidavits; and the corroboration thereof by Francine is limited and makes no reference to Raymond “staying for good” at No 36.

2. The 2016 Representations, as deposed to by Raymond (that the deceased told Raymond that, when Val died, the deceased would sell No 34, move to the North Richmond Property, and give No 36 to Raymond) are not operative in circumstances where the deceased died before Val.

3. If the representations were as Raymond says, no reasonable person in the position of Raymond could apprehend that they would have given rise to a right to reside in the property for life or to a life estate.

4. Raymond cannot be said to have suffered detrimental reliance in circumstances where he has received the benefit of free accommodation in No 36 from 2005 until 17 December 2021.

5. The expenditure Raymond alleges to have laid out in respect of the arrangement under which he resided at No 36 are not of a nature or extent that would constitute detrimental reliance in the circumstances of the case.

6. The imposition of a constructive trust would be disproportionate to any detriment that Raymond may have suffered, and the appropriate remedy (if any) would be an award of equitable compensation.

49. It will be convenient first to set out the history of those facts which were not reasonably in dispute before turning to those facts over which there was some level of contest. Factual matters in dispute will be referenced in the following overview and then considered in detail afterwards.

Equitable estoppel claim – factual history

Background history

50. The deceased was born on 7 November 1951 and lived to the age of 67 years. The deceased was born to his mother Val and his father Mr Robert Janson, and they and Kevin lived together in a house in Binda Street, Merrylands West when the deceased was born. In about 1968, Val inherited No 34. Kevin remained in Binda Street and Val, Robert and the deceased moved into No 34.

51. Raymond was born in April 1965 and was 57 years of age at the date of the hearing. Francine was born in October 1968 and was 53 years of age at the date of the hearing.

52. Luke was born in October 1976 and was 45 years of age at the date of the hearing. As stated, until Luke’s appearance at Merrylands West in April 2020, his existence was unknown to Val, Kevin and Raymond. Val was not aware of the deceased ever having been married or having been in a de facto relationship or having had children.

53. Val and Robert separated in about 1985 and Robert moved to the North Richmond Property while the deceased remained at No 34. On 30 July 1991, Kevin sustained a brain injury which left him hospitalised, and Kevin now resides in aged care.

54. Mr Luigi Pennetta and his wife Maria lived at No 36 from some time in the early 1970s when they purchased the property and were therefore the Jansons’ neighbours through much of the 1970s and 1980s. Mr Pennetta sold No 36 to the deceased in or around 1985. Mr Pennetta said that the deceased wanted to purchase No 36 because it was next door to his mother.

55. Raymond and Francine’s daughter Jazmina was born in July 1991 and Raymond and Francine were married in October 1991. Raymond and Francine bought their first home in Smithfield in 1995. From at least the time of his marriage to Francine, Raymond worked from time to time as a taxi driver.

56. Dianne Campbell first met the deceased and Robert in 1992 when she moved into her home in North Richmond, which is opposite the North Richmond Property in which Robert was living at the time. From about 2009 onwards Dianne started making dinners for Robert which she would take over to him.

1996 to 2016: Raymond and deceased meet, Raymond moves in

57. Raymond first met the deceased sometime in 1996. They met at the Merrylands West TAB where it appears Raymond and the deceased were both regular patrons. After their first meeting at the Merrylands West TAB, Raymond and the deceased would regularly meet there at least four days per week, and they became good friends. The deceased gave Raymond the nickname ‘Cabbie’.

58. In December 2002, Raymond and Francine separated and sold their house in Smithfield. Francine moved with Jazmina to Francine’s parents’ home and Raymond moved in with his parents. Sometime in the middle of 2003, Raymond and Francine attempted to rekindle their marriage and they began renting an apartment in Sherwood Road, Merrylands West.

59. Francine first met the deceased in mid-2003 at Merrylands West TAB. Francine would often pick Raymond up from the TAB between mid-2003 and early 2004 and she observed that Raymond was regularly standing with the deceased.

60. Three personal matters arose for Raymond in 2004. First, at the age of 12 years, Jazmina began to complain of bad headaches, and, after collapsing on a number of occasions without warning, Jazmina was diagnosed with a brain tumour. Secondly, Raymond and Francine separated again sometime in the middle of the year, and Francine and Jazmina moved back in with Francine’s parents. Thirdly, by the end of year, having fallen behind on his rent, Raymond’s real estate agent had begun to threaten him with eviction and also contacted Francine in respect of the arrears.

61. By the end of 2004, Raymond and the deceased had been friends for about eight years. The deceased would often ask Raymond about his situation and, one on occasion, counselled Raymond to take a break from attending the TAB. Raymond accepted this advice, took a break for three days, and then returned to the TAB. Raymond alleges that the deceased first made the 2005 Representations on the day of his return to the TAB. There is dispute as to the content of the representations made on this day. Two days after the alleged day of the 2005 Representations, the deceased brought Raymond to No 36.

62. The deceased was a hoarder of household and industrial items which he would store both inside and in the yards of both No 34 and No 36, a behaviour which Val appears to have tolerated. In early 2005, Raymond helped the deceased to move a significant quantity of these items out of the main rooms of No 36 and into the garage. Raymond paid about $80 for the cleaning of the carpets and $180 for No 36 to be fumigated, and the task of moving the items was a full-time effort taking one and a half weeks to complete.

63. The deceased was also careful with money and retained possessions in a frugal manner perhaps consistent with his hoarding behaviours, but he was not completely close-fisted. The deceased appears to have sponsored children in the Philippines and to have done some electrical work for Dianne Campbell without charge. This was a matter which appeared to be in dispute during the hearing, but which Luke later accepted as a background fact relevant to the context in which any representations made by the deceased would have been understood. It is clear as well that the deceased was an avid punter.

64. Raymond moved into No 36 a few weeks after the first work undertaken on No 36 as set out above. Raymond has lived in No 36 from the time he first moved into that property in 2005 on a full time and permanent basis until the present day.

65. After Raymond moved into No 36, the deceased instructed Raymond on what Raymond was to do in respect of Val, No 34 and No 36. Raymond was to answer the door at No 36 when the deceased was not around to let people know that Raymond was living there. A few times each night, Raymond was to walk over to No 34, knock on the window and check that Val was alright and whether she needed anything. The deceased showed Raymond the location of a hidden spare key to No 34.

66. Unless Raymond was away from No 36, every night he would leave the porch light on at No 36, and would, twice a night, walk over to No 34 and check on Val by knocking on the window. Raymond would drive Val to and from the local IGA and Merrylands RSL Club twice a week, and would sometimes walk to the shops himself and carry the groceries home for Val. There was a preponderance of evidence provided by different witnesses in respect of care services provided by Raymond and later Francine to Val during Val’s lifetime, and in respect of financial contributions made by Raymond to the repair and maintenance of No 36. I have not taken Luke to have disputed in any serious way that Raymond undertook the “Initial Work and Assistance” or “Further Work and Assistance” that Raymond alleges to have undertaken, but there was some dispute as to its legal significance and it will be appropriate to set out more fully the evidence concerning the care rendered to Val and the contributions of Raymond to No 36 in the sections below concerning the 2005 Representations and 2016 Representations.

67. In 2009, the deceased asked Raymond for help in acquiring a taxi licence and the deceased passed his taxi course with Raymond’s assistance. Raymond gave the deceased the nickname “Cab”.

68. In 2010, Raymond’s daughter Jazmina underwent surgery in respect of her brain tumour. Raymond began to feel anxious and depressed and reduced his work hours significantly. The deceased took care of Raymond for a period of 6 to 7 months, in which the deceased did all the shopping for Raymond and the deceased consoled Raymond.

69. In or around 2015 or 2016, the deceased and Raymond had a conversation in which the deceased said to Raymond: “Cabbie, there is one thing I would never do, and that is put my mother in a nursing home. I want you to promise me that if anything ever happens to me, you will look after my mother until the day she is laid to rest. Never ever put her in a nursing home.” Raymond replied: “Cab, one hundred percent I will never put her in a nursing home.”

2016 onwards: alleged change of arrangement, deceased dies

70. In March or April 2016, Raymond alleges that he and the deceased had a conversation from which the 2016 Representations were said to have arisen. There is a dispute as to the content of these representations.

71. In late 2016, Raymond’s daughter Jazmina moved to Los Angeles. Jazmina had asked both Francine and Raymond to help her with the move, but Raymond declined, prompting a conversation between Raymond and Francine which tends to confirm Raymond’s allegations in respect of the 2016 Representations. This evidence will be considered below.

72. Mr Jack Chemuel is a friend of Raymond of about 15 years who first met the deceased at the Merrylands West TAB around 2015. In or around April or May 2017, Jack moved into No 36 with Raymond after Raymond and he discussed that Jack could stay there on the basis that Jack would contribute about $100 per week towards groceries. Jack resided at No 36 for about one and a half years.

73. At the outset, Jack protested that he ought to speak to the deceased about this arrangement because he knew that the deceased owned No 36, but Raymond told him that that was unnecessary. Upon Jack asking the deceased whether the deceased was happy with the arrangement discussed by Jack and Raymond, the deceased told Jack that the arrangement would have nothing to do with the deceased because No 36 was Raymond’s place.

70. On two occasions during his stay at No 36, Jack complained to the deceased about the state of the walls and the air conditioning at No 36, to which the deceased replied that No 36 was Raymond’s place and that Jack should take up those issues with Raymond. Raymond subsequently purchased paint and a new air conditioner. When Jack observed that Raymond spent his own money on these repairs, Jack asked Raymond why this was the case, to which Raymond replied: “[The deceased] promised me when the old lady dies, this place is mine, and that’s why I look after it and spend the money.”

71. In around early 2019, the neighbouring properties at No 30 and No 32 of the same street as No 34 and No 36 had been demolished and new houses were being built on the properties. The deceased was approached by the developer of those properties about selling both No 34 and No 36. Raymond recounted the conversation he and the deceased had afterwards, in which the deceased said: “I told [the developer] to come see me when the old ladys (sic) gone and he’d have to speak to you about your place”.

72. The deceased had a medical episode while driving on 23 April 2019 and was involved in the car accident that resulted in his death. Raymond was contacted by a police officer who told Raymond that Raymond was listed as the deceased’s next of kin in the Roads and Maritime Services records.

73. Raymond and Francine were the ones to break the news of the deceased’s car accident to Val at No 34 and they took Val to Westmead Hospital where the deceased had been transported. After learning of the deceased’s death at the hospital, Val asked Raymond and Francine that they not leave her. Raymond told Val that he would never leave her, in honour of the deceased. When a social worker approached Val to discuss Val’s living arrangements, Val, Raymond and Francine discussed with the social worker that Raymond and Francine would continue to support Val so that she would not need to go into aged care. Raymond told the social worker that he had made a promise to the deceased that Val would never go into aged care.

74. Raymond and the deceased shared a close friendship. The deceased and Raymond would regularly visit one another across No 34 and No 36 and have hours-long conversations. The pair were known as close friends by their fellow regular patrons of the Merrylands West TAB. Raymond and Francine organised the deceased’s funeral and Raymond wrote the eulogy.

Other relevant matters

79. In the period from 2005 to about 2017, Raymond would assist the deceased with the payment of rates and utilities for No 36. Raymond would pay the deceased for any bill presented to him by the deceased. Raymond also assisted the deceased with the payment of council and water rates at the North Richmond Property. Raymond’s contributions to the rates bills were for the whole amount at times and for partial amounts at other times. The deceased stopped asking Raymond for money for the rates at North Richmond after a dispute between the deceased and Hawkesbury Council over an increase in rates.

80. I have set out the history of procedural events from the deceased’s death until the date of the hearing. To that history can be added Raymond’s evidence that he did not at first believe Luke’s assertion of his parentage by the deceased since the deceased never told Raymond that the deceased had any children. I also accept Raymond’s evidence that, until such time as he sought legal advice about his rights in late June 2021, he was not aware of his right to claim provision from the deceased’s estate or of the time limitation on making such a claim.

81. The parties tendered a joint exhibit (PD1) setting out agreed facts in respect of the rent which might be obtained for properties in Merrylands West and for No 36 specifically. The relevance of this evidence is its use by Luke to submit that Raymond did not suffer the sort of detriment recognised in equity as giving rise to an equitable estoppel where he was enjoying rent-free accommodation in No 36. The exhibit provides, relevantly, the following agreed facts:

1.   The rent which might be obtained for a 3 bedroom Merrylands home in proper condition is as follows […]:

a.   2005 - $250 per week.

b.   2007 - $300 per week.

c.   2009 - $320 per week.

d.   2010 - $320 per week.

e.   2013 - $360 per week.

f.   2017 - $440 per week.

2.   The rent which might be obtained for 1 bedroom Merrylands home in proper condition is as follows […]:

a.   2005-2007:   unknown.

b.   2008-2010:   $165 per week.

c.   2010-2012:   $185 per week.

d.   2012:            $255 per week.

e.   2013:            $265 per week.

f.   2014-2017:    $280 per week.

g.   2017:            $280 per week.

3.   The agreed market rent for the property at [No 36] for the period after the deceased’s death on 23 April 2019 is $365 per week.

82. Raymond accepted in cross-examination that his contributions requested by the deceased were much less than the $380 per week which Raymond had been paying in rent for his unit in Sherwood Road, Merrylands West.

83. Raymond also accepted in cross-examination that he had never accumulated any asset of significance during his life because of his gambling problem, and that the difference between his expenses on No 36 and the rent he might otherwise have paid elsewhere would have allowed him to accumulate funds to invest in property.

84. On the final day of the hearing, the parties foreshadowed the tendering by the defendant of two pieces of correspondence whereby Luke’s solicitors advised Val’s solicitors of the results of two DNA tests proving Luke’s parentage by the deceased. The first was a letter to Val’s solicitors dated 15 February 2021 attaching DNA test results of 12 February 2021, and the second was an email to the Associate to Hallen J, copying Val’s solicitors, dated 15 June 2021 attaching DNA test results of 14 June 2021. I will make an order in chambers for the tender of these documents as exhibits, and I have considered the written submissions of the parties sent to my Associate after the completion of the hearing in respect of the exhibits. The overriding point of the submissions was to reveal the agreement of the parties that Val would have appreciated the effect of the DNA tests by June 2021.

Factual dispute – the deceased’s place of residence over time

85. The fact of which property or properties the deceased resided in throughout his life is relevant to both the equitable estoppel claim and the family provision application in this case. It is relevant to the former insofar as Raymond claims that the deceased resided for some period at No 36 prior to the 2016 Representations and then ceased to reside at No 36 after the 2016 Representations, and relevant in addressing the substance of some of Luke’s evidence and submissions that Raymond occupied No 36 as a lessee. It is also relevant to the family provision application insofar as common household membership is a requisite element of Raymond’s eligibility under s 57(1)(e) of the Succession Act.

86. The deceased’s death certificate lists his place of residence as No 34. Given that Val is listed as the informant on the deceased’s death certificate, it can be inferred that she provided this information to the Registry of Births, Deaths and Marriages. The same can be said of the letters of administration in respect of the deceased’s estate which also list the deceased’s place of residence as No 34. These instruments are significant pieces of objective evidence, created before Luke ever appeared at Merrylands West, supporting a finding that the deceased resided at No 34 at the time of his death.

87. Val’s evidence in her affidavit of 28 January 2021, filed initially in the related proceedings in which she pursued a family provision application, was that she and the deceased lived together at No 34 on a full time and permanent basis from the date of the deceased’s birth until the date of the deceased’s death. She gave this evidence alongside assertions that she and the deceased were interdependent from around 1985 and that they were living in a close personal relationship at the time of the deceased’s death. Val’s evidence in this respect is clearly directed to the pursuit of her family provision application. Nonetheless, Val also deposed that the deceased occasionally visited the North Richmond Property and would sometimes spend the night there if he had an accountant’s appointment or had a job to do electrical work in or around the Richmond area.

88. Val gave evidence in her affidavit of 28 January 2021, in the context of her family provision claim against the estate of the deceased, that she and the deceased contributed to each other’s welfare financially and otherwise. She said that she and the deceased were heavily reliant on each other. To summarise that evidence:

1. The deceased undertook domestic duties at No 34 such as feeding the cats, maintaining the lawns, and taking out the bins. The deceased attended to all the maintenance and repairs of No 34, including all plumbing and electricity repairs and paid all expenses in connection to the same. The deceased purchased Chinese food every Friday night for dinner and fish and chips on Saturday for lunch and shared these meals together. The deceased watched television with Val at No 34 every evening.

2. Without having a formal arrangement, the deceased and Val split the payment of household and everyday living expenses. The deceased paid for maintenance and repairs costs (in full), petrol for the lawn mower (in full), petrol for the car (in full, though Val later says that she gave him sundry cash for petrol), telephone bills (in full), and home and contents insurance of No 34. They split food and groceries and the costs of dining out and entertainment. Val estimated their contributions were roughly equal on the payment of bills.

3. The deceased regularly transported Val to and from medical appointments, shopping centres, and social events at the Merrylands Bowling Club.

4. Val attended to household chores within No 34, including washing, ironing and cleaning; cooking meals for herself and the deceased; answering the phone and collecting the mail; and contributing money for petrol occasionally.

5. Val allowed the deceased to live in No 34 rent free. Richard also had the benefit of the sole use of Val’s car.

89. In a later affidavit of 22 October 2021, Val said that, when a bill fell due, at least on a monthly basis, the deceased usually handed Val an envelope with money for the payment of some of Val’s bills.

90. Further in her affidavit of 28 January 2021, Val gave evidence that she was not cohabitating with another person but explained that there had been no fence between No 34 and No 36 for as long as she could remember, and that she and the deceased would regularly visit No 36 and that Raymond would regularly visit No 34, often multiple times per day. In evidence was a photograph taken from the backyard of No 36 looking over the backyard of No 34 which suggested that there was little separation between the two backyards. In her affidavit of 22 October 2021, Val gave evidence that the deceased spent more time at No 36 than he did at No 34, and that the deceased and Raymond were good friends who got on well together and that the deceased spent hours at No 36 talking with Raymond.

91. There was photographic evidence of the rooms at No 36 that the deceased used for storage of furniture and personal effects and of the deceased’s bedroom at No 36. The storage rooms appear significantly cluttered with household items and upturned furniture, and the ceilings appear collapsed in places. By contrast, the photographs of the deceased’s bedroom where he kept his cloths and toiletries and slept depict a more organised space.

92. In his affidavit of 10 July 2021, Raymond gave evidence that, between 2005 and 2016, the deceased used No 36 as at least one of his homes, and then that, after the 2016 Representations in March or April of 2016, the deceased ceased to use No 36 as his home and treated Raymond in a real way as the owner of No 36.

93. In respect of the period from 2005 to 2016, Raymond said that the deceased kept a key at No 36 and that the deceased did not knock before entering No 36. The deceased used two of the rooms at No 36 in which he kept clothes and household effects. The deceased would sleep once a month at North Richmond, three or four nights of the week at No 34, and the rest of the time at No 36. The deceased usually ate dinner with Val at No 34. Raymond would also cook for the deceased and they ate together from time to time. The deceased showered at No 36, washed and dried his clothes at No 36, and would stock No 36 with food. Raymond and the deceased shared at least some grocery items.

94. In respect of the period from 2016 until the deceased’s death, Raymond said that, from the day after the date of the 2016 Representations, the deceased stopped using his set of keys to enter No 36. The deceased began knocking at the door of No 36 and would wait for Raymond to invite him in. The deceased expressed to Raymond that it would not be right for the deceased to enter No 36 when Raymond was not around, even for the deceased to pick up items from the deceased’s room at No 36, because No 36 was Raymond’s place. As will be seen, this is important evidence concerning the 2016 Representations and is explored later in these reasons.

95. As has been set out above, Jack Chemuel and Raymond gave evidence of conversations with the deceased about the repair and redevelopment of No 36 which indicated that the deceased treated No 36 as Raymond’s property, insofar as the deceased did not consider himself the authority over the property and directed questions about the property to Raymond. These instances occurred after 2016.

96. Francine’s evidence in cross-examination was that the deceased was living full-time with his mother at No 34 “as far as [she] was aware but [she did] know that he had a bedroom set up for him at No 36.”

97. Kevin’s evidence in cross-examination was that the deceased lived full-time with Val at No 34 until he died. Kevin did not reference whether the deceased ever lived at No 36. Kevin’s affidavit evidence recounted instances in 2017 and 2018 or 2019 which implied that the deceased was not living at No 36 at those times.

98. Dianne Campbell gave evidence that she would see the deceased frequently attend his father’s property, usually about three times per week, although on rare occasions she would not see the deceased there for up to a few weeks. Dianne did not contextualise this observation by reference to any particular year or period of years.

99. Raymond Esber said in his affidavit that he would visit the deceased at No 34. As will be explored later, the evidence of Dianne Campbell and Raymond Esber tends to support a conclusion that Raymond (Daniel) was the deceased’s tenant at No 36, a conclusion that I have not ultimately accepted. This position is contrary to Raymond’s case as a whole, and to the proposition within Raymond’s case that the 2016 Representations symbolised a turning point at which the deceased chose to cease exercising authority over No 36. The position implied is that the deceased resided at No 34 and that he used No 36 as an investment property.

100. Luigi Pennetta gave evidence that the deceased had, at some early time in the mid-1980s, leased No 36 to tenants but that the deceased had decided not to lease No 36 any further after a negative experience of those tenants.

101. All the evidence justifies the uncontroversial conclusion that the deceased resided at No 34 at the date of his death. As to whether the deceased ever resided at No 36 and, in particular, whether he resided there until he made the 2016 Representations, I am satisfied the deceased resided across both No 34 and No 36 until the time that Raymond alleges the 2016 Representations to have occurred, at which time the deceased commenced treating No 36, in practical terms, not with the unrestricted authority of the owner of one’s own property, but rather as Raymond’s property. I have come to this conclusion because the evidence satisfies me that the deceased, until the time of the 2016 Representations, came and went from both No 34 and No 36 as he pleased and had the space to sleep in either house as he desired, but that after that time he regarded matters concerning the state of repair of No 36 as matters for Raymond, and not him, to address; the deceased would not enter No 36 without Raymond’s invitation; and the deceased treated the occupation of No 36 by Jack Chemuel as a matter solely within Raymond’s discretion.

102. I reach this conclusion notwithstanding that the deceased kept a bedroom and storage rooms in No 36 and spent substantial periods of time at No 36 until his death, and that there is nothing in the evidence of any of the witnesses that excludes a finding that the deceased slept at No 36 from time to time and used some part of No 36 for storage, even after the time of the 2016 Representations. I am satisfied that, to the extent that these facts were true in the wake of the 2016 Representations, it was Raymond that permitted this state of affairs to continue after that time. That is consistent with the broader picture of a decades-long friendship conducted across two neighbouring properties, in which Raymond would have felt an understandably profound sense of gratitude for the generosity of his closest friend so as to allow the deceased to use No 36 for storage and as a place to stay apart from his mother from time to time.

Factual dispute – the 2005 Representations

103. There is next a factual dispute as to whether the 2005 Representations were made and, if so, what the content of those representations was. These are really the same question, in circumstances where, as I understand it, Luke has accepted that some representations must have occurred which led to Raymond residing in No 36 from 2005 until the present. The issue is as to what the deceased represented to Raymond in late 2004 or early 2005.

104. The first of Luke’s submissions in respect of this factual question was that the 2005 Representations were not corroborated by Val’s affidavits and were only corroborated by Francine’s evidence to a limited extent. I will treat Francine’s evidence separately below, but for present purposes it bears remarking on Val’s evidence in this respect.

105. In her 28 January 2021 affidavit, after setting out at length the contributions she and the deceased made to one another’s wellbeing, Val said (at pars 21-22) that Raymond had lived at No 36 from about 2005 on a full time and permanent basis, that she would often hear the deceased tell Raymond to look after her when the deceased left home, and that Val would ask after Raymond to the deceased if she did not see Raymond for a couple of days.

106. Val then said (at pars 40-41) that, after the deceased’s death, she became heavily dependent on her carer, Francine, and her neighbour, Raymond, for all her daily care needs and for the upkeep of No 34. Summarising that evidence, Val said:

1. Raymond would attend in the morning every day to bring a copy of the newspaper and feed Val’s cats and would attend in the afternoon to feed the cats again. Raymond would maintain Val’s lawns and gardens.

2. Francine would attend from about 9:00am to about 7:00pm every day, provided Francine had no prior commitments. There, Francine would shower Val every second day, and this would occur in No 36 because No 34 did not have the facilities to shower Val in this way.

3. Francine used household appliances in No 36 belonging to Raymond for Val’s benefit. Val would receive treatment for her breast cancer at No 36 because No 34 was cluttered with the deceased’s belongings. Val would spend time with Raymond and Francine at No 36.

4. Francine would prepare Val’s lunch and dinner and they would eat meals with Raymond at No 34. Francine and Raymond would pick up Chinese food and fish and chips for Val in an effort to continue the traditions shared by Val and the deceased.

1. Ray and Val had a system whereby Raymond would leave on the front light at No 36 to tell Val he was home safe and because it made Val feel safe to know Raymond was around. If the light were not on, Val would call Francine to contact Raymond to ask after him.

107. In the context of both Luke’s claim to No 36 on intestacy and her own family provision application, Val made the following relevant observations in respect of Raymond (emphasis added):

42.   If [No 36] is no longer an accessible resource to me then:

a.   Ray and Francine will no longer be able to care for me the same way they have been. Ray will need to find alternative accommodation, and I believe Francine will not be able to visit as often. … a new carer will not be able to provide me with the level of love and friendship I need, and have, with Ray and Francine for the last 16 years. I believe Richard would have wanted the arrangement between Ray and I to continue after his death.

…

c.   I am unsure how I will cope without Ray residing next door. He has been a great source of strength to me after the passing of Richard. As an elderly lady who lives alone, Ray makes me feel safe. If Ray no longer resides at [No 36], I will lose the will to live.

d.   I may need to go into care, which is the absolute last thing I want. …

43.   Further to my care needs listed in paragraphs 40,41 and 42 above, details of my other needs, both present and likely include:

…

i.   I have a moral obligation to care for Ray. Should he no longer be able to reside in [No 36], I will need to pay for his accommodation elsewhere. …

…

48.   I have lived next door to Ray for 16 years and as a woman living by myself, feel secure with him residing next door to me.

49.   Ray [evidence not read in light of objection] lived in [No 36] rent free. I have continued this arrangement after Richard’s lifetime, and Ray is now financially dependent on me. Ray and I have an agreement that he and Francine will care for me, in return for Ray, residing in [No 36] rent free.

108. Returning briefly to the factual history at [61], I contextualised this factual dispute by recording that the deceased recognised that Raymond found himself in a difficult position and counselled Raymond to take a short break from attending the Merrylands West TAB. Raymond’s evidence is that, upon his return to the TAB in late 2004 or early 2005, he and the deceased had the conversation from which the 2005 Representations first sprung. Val did not (because she could not) give evidence of the conversation at the Merrylands West TAB from which the 2005 Representations are said to have sprung, but the evidence she did give in her 28 January 2021 affidavit is important. Val acknowledged the existence of an ‘arrangement’ by which Raymond (and Francine) would provide care to her in return for which Raymond could reside at No 36 rent free. She implied that this arrangement had commenced in the deceased’s lifetime and that the deceased had orchestrated it. She affirmed this evidence before Raymond had sought legal advice on his claims, such that it carries a quality of independence. In this way, counsel for Luke’s submission that Val did not corroborate the 2005 Representations evades the implication in Val’s evidence that the arrangement arising from the 2005 Representations was extant in 2021 and had been extant since before the deceased’s death.

109. It is now convenient to turn to the chronological evidence provided by all the witnesses in respect of the 2005 Representations. Foreshadowing the conversation at the Merrylands West TAB in late 2004 or early 2005, Francine gave evidence in her affidavit of 13 August 2021 at pars 8-10 that she had received a phone call from the real estate agent of her and Raymond’s apartment in Sherwood Road and this led her to seek out Raymond to check on him. Francine relayed the following at par 10:

10   After work, I went over to see Raymond at the apartment and rang the doorbell but he didn’t answer. I then went to the TAB, Raymond was not there either. I saw Rick there and asked:

[Francine]:   “Hey Rick, I’m looking for Raymond have you seen him today? I’m kinda worried”

[Deceased]:   “he hasn’t been around for a few days”

[Francine]:   “oh my God, where could he be now? I’m really worried”

[Deceased]:   “Nah, I told him to cut the punting, it’s okay he told me everything, don’t worry I’m gonna look after Cabbie”

[Francine]:   “Really I’m surprised he told you but I’m glad he was able to talk to someone, thanks Rick, he’s lucky to have a friend like you”.

110. Raymond relayed the conversation giving rise to the 2005 Representations in his 10 July 2021 affidavit at par 19:

19.   After 3 days I returned to the TAB and saw [the deceased]. He appeared excited to see me and asked

[Deceased]:   “Cabbie, how much rent you paying?”

[Raymond]:   “$380 a week, why?”

[Deceased]:   “You know what I’ve been thinking, I’ve got a house next door to the old lady’s, I used to have people living there but they were a lot of trouble so I don’t want to rent it to anyone anymore, I’ve got a lot of stuff there like fridges, electrical wires and other stuff, help me clean it up, we can move the stuff into the garage, then we’ll have to get the carpets cleaned and get the place fumigated and then you can move in.”

[Raymond]:   “Really, that would be amazing but how much do you want?”

[Deceased]:   “I don’t want any money, just pay to have the carpets cleaned and the place fumigated, pay all the bills, help pay the rates and I need you to look after the old lady whenever I’m not around.”

[Raymond]:   “Look after the old lady, what you mean?”

[Deceased]:   “When I go to North Richmond to do work on the farm, or if I travel just keep an eye on the place, at night leave your outside light on so people will know someone’s around, the old lady will feel safer if you do that, if my old lady needs something like a lift to the club or needs something from the shops or wants to go to the shops, whatever she needs.”

[Raymond]:   “Are you serious?”

[Deceased]:   “Yeah cabbie, I want to help you out and at the same time you’ll be helping me out.”

[Raymond]:   “You don’t ever need to worry about your mum or the place, I’ll be there to look after everything.”

[Deceased]:   “Cabbie stick to your promise and I’ll look after you and you will stay there for good.” [Raymond] hugged [the deceased].

[Deceased]:   “Cabbie.”

[Raymond]:   “Sorry Rick I’m just overwhelmed, no one has ever done anything like this for me, ever.”

[Deceased]:   “Don’t worry Cabbie, you’ve got a home now.”

[Raymond]:   “Thanks Bro.”

[Deceased]:   “Just remember if I’m not around and someone knocks at ya door always make sure to answer so then they know someone’s living here and a couple of times during the night I need you to walk out and head over to the old lady’s place and walk around so people see someone going there so they know someone lives there cause with all the trees and bush you can’t tell anyone lives there, okay cabbie?”

[Raymond]:   “I understand, whatever you ask I will do, you have my word as a gentleman.”

111. Next, Francine gave evidence in her affidavit of 13 August 2021 at par 11 that Raymond called her about moving in to No 36. They had the following conversation:

11   In early 2005 Raymond rang me:

Raymond:   “Hey Fran, do you think you could borrow your Dad’s four wheel drive and give me a hand to move”

[Francine]:   “Oh my god, you did get evicted”

Raymond:   “nah, I gave notice”

[Francine]:   “but where are you going to go?”

Raymond:   “you know my mate Rick?”

[Francine]:   “Yeah”

Raymond:   “he’s got a place and asked me if I wanted to move in”

[Francine]:   “that’s fantastic, Rick’s a good friend you better make sure you don’t stuff that up and get behind in your rent”

Raymond:   “he doesn’t want any rent”

[Francine]:   “what, are you sure?”

Raymond:   “yep, we have an agreement”

[Francine]:   “really and what’s that?”

Raymond:   “I look after his mum if he’s not around and I pay all the bills”

[Francine]:   “that’s awesome.”

112. Francine said that she did help Raymond move in to No 36, and recounted the following conversation with the deceased on the day she helped Raymond move, in her affidavit of 13 August 2021 at par 13:

13   Raymond started unloading the four-wheel drive, I saw [the deceased] come out from 36 he walked over to me, winked and said:

[Deceased]:   “I told you I’d look after him”

[Francine]:   “yes you did”

[Deceased]:   “welcome to Cabbie’s home”

[Francine]:   “thanks for looking out for him”

[Deceased]:   “he’ll be right” Raymond came out to get more stuff from the car.

[Deceased]:   “come on Cabbie hurry up we’re missing out on thousands”

113. Raymond gave the following evidence on the 2005 Representations in cross-examination:

1. Raymond said that he never asked to be made a tenant of No 36, and nor did he ask the deceased to create a document setting out the terms and conditions on which Raymond occupied No 36. Raymond explained that this was because the deceased explained that Raymond could stay there for good.

2. Raymond accepted the suggestion that the deceased could have turned around and told Raymond to leave No 36 and that Raymond would have left near the start of his time at No 36, but not, say, 10 or 15 years later in light of what Raymond considered to be the promise the deceased had made to him.

3. Raymond accepted that the arrangement was very advantageous to Raymond insofar as Raymond was not paying as much rent as in his previous unit and Raymond could work full-time.

4. To the suggestion that the 2005 Representations, taken with the assistance Raymond was providing to Val, did not instil in Raymond the expectation that he could simply live there for the rest of his life, Raymond said that he did have that expectation.

114. Luigi Pennetta said that, on a visit to Val in or around 2005, the deceased introduced Mr Pennetta to Raymond who was now living at No 36. The deceased told Mr Pennetta: “Ray’s my friend he works as a taxi driver and he helps me a lot looking after mum in the daytime when I am at work so I can go out and do my jobs.”

115. Raymond said that, for a period of 8 weeks in 2009 when the deceased went on an overseas holiday, he assisted Val by driving her to and from medical appointments, mowing the lawns at No 34 and No 36, and handling the rubbish and the mail for Val.

116. Raymond said that, in 2014 or 2015, he helped the deceased to replace clay pipes in No 36 and this project took about four days. The replacement pipes cost $200 or $300, and Raymond paid about $500 for a plumber to unblock the old pipes on two occasions prior to the replacement.

117. I have set out other relevant facts in the factual history relayed above, including that Raymond assisted the deceased to acquire a taxi licence in 2009; that the deceased cared for Raymond for a period of 6 to 7 months in 2010 while Raymond grappled with anxiety and depression over his daughter’s medical condition; and the consistent assistance Raymond provided to Val by way of grocery shopping and transportation for Val.

118. As I have foreshadowed, the significance of the evidence set out in this section is coloured by evidence of events occurring later in time. It is appropriate that I determine the relevant findings of facts in respect of the 2005 Representations in the section below in which I consider the equitable estoppel claim as a whole. It is convenient to turn to the evidence regarding the 2016 Representations next.

Factual dispute – the 2016 Representations

119. Returning to the factual history at [70], I foreshadowed a conversation between Raymond and the deceased in 2015 or 2016 in which the deceased told Raymond: “I want you to promise me that if anything ever happens to me, you will look after my mother until the day she is laid to rest. Never ever put her in a nursing home.” This conversation is evidence to the effect that, at least by this point in time, the deceased had begun to consider his mother’s care, to which Raymond had been contributing for around eleven years, in the hypothetical scenario in which he predeceased his mother. It is evidence that the deceased saw an active role for Raymond in his mother’s life after the deceased’s hypothetical death.

Content of the 2016 Representations

120. The alleged conversation in March or April 2016 giving rise to the 2016 Representations was set out in Raymond’s affidavit of 10 July 2021 at par 57:

50.   In March or April 2017, [the deceased] and I had lunch together in the lounge room of No 36. … We had the following conversation:

[Deceased]:   “Cabbie, when the old lady’s gone I’m gonna sell her place and move to North Richmond and finish off the house that I started building and I’m gonna give you 36, is that alright?”

[Raymond]:   “What, you serious?”

[Deceased]:   “Yeah, you’ve been there for me like I’ve been there for you, you’ve looked after the old lady and took care of the place like you said you would.”

[Raymond]:   “Cab that would be amazing, you are not only looking after me but you are also helping me look after my daughter because one day I can leave it to her.”

[Deceased]:   “Okay then, done.” [Raymond] cried and hugged [the deceased].

[Raymond]:   “Thank you my brother.”

[Deceased]:   “Come on let’s get out of here I gotta get to the first race cause Penza has a good ride in the first, could be thousands there for us.”

121. Raymond gave evidence that, on the day of this conversation, the deceased complained to Raymond of headaches. Raymond, thinking of his daughter, suggested to the deceased make a will. The deceased responded to this suggestion by saying: “I told you once the old lady’s gone I’m gonna sell her place and give you the house and I’m out of here that’s it, there you know my Will.”

122. In cross-examination, Raymond said that he did not expect to receive No 36 by way of a will because he understood that the deceased did not believe in making a will. Raymond said that he expected that, had the deceased made a will, the deceased would have left No 36 to him that way, but as the deceased did not have a will, Raymond understood that, if Val predeceased the deceased, the deceased would gift No 36 to Raymond while the deceased was still alive by signing the title over to Raymond.

123. Now is a convenient moment to interpose certain evidence of Luigi Pennetta bearing on the deceased’s attitude towards his testamentary dispositions. Mr Pennetta recalled a conversation with the deceased at No 34, the timing of which he could not specify, to the following effect:

[Mr Pennetta]:   “What’s the matter Ricky?”

[Deceased]:   “Wills are shit! They are a piece of paper worth nothing.”

[Mr Pennetta]:   “Why what do you mean?”

[Deceased]:   “After all the years of helping my uncle I got nothing and lost out.”

[Deceased]:   “Who looks after my Mum will get the lot.”

[Mr Pennetta]:   “Good on ya, I’m in the same boat I have no kids who looks after me and Maria (my wife) can have the lot too.”

124. Next, Luigi Pennetta said that he and the deceased had a conversation after a few years of Raymond living at No 36 in which the deceased told Mr Pennetta: “I am happy with Ray he looks after Mum he can have 36 when Mum goes for all he has done for me and my Mum.”

125. Finally, Luigi Pennetta said that he made contact with Raymond at No 36 when he learnt, on 7 November 2021, of Val’s death. Mr Pennetta said to Raymond: “Yes, [the deceased] told me about his promise he said to me who looks after Mum gets the lot.” Raymond replied: “I know [the deceased] was a man of his word.”

126. Returning to the conversations on the day of the 2016 Representations, as I have already set out, Raymond gave evidence that, the day after these conversations, the deceased stopped using his set of keys to enter No 36 and the deceased began knocking at the door and would wait for Raymond to invite him in on the basis that the deceased now considered No 36 to be Raymond’s place.

127. In her 19 August 2021 affidavit, Val gave evidence of a conversation occurring “a few years before [her] son’s death” between herself and the deceased at No 34. She said that the deceased left in the early afternoon to go see Raymond at No 36. Around 6:30pm that evening, being Val and the deceased’s usual dinner time, Val noticed the deceased had not returned. Val walked out to the boundary of No 34 and No 36 and called out to the deceased to return for dinner. She said the deceased walked out of No 36 and replied that he was still talking to Raymond. Val called out again about an hour later and the deceased returned to No 34. There they had the following conversation:

[Val]:   “All that talking while your dinner is getting cold. Eat your meal, then go to talk.”

[Deceased]:   “Yes, all that talking was about you.”

[Val]:      “Me? What for?”

[Deceased]:   “Cabbie [a nickname attributed to Raymond], and I have reached an agreement.”

[Val]:   “Oh, really? What about?”

[Deceased]:   “Cabbie’s going to look after you when I am not around. Then, one day when you’re not around I’m going to sell your house, move to the farm, and going to give [No 36] to Cabbie.”

[Val]:   “Why anyone would want to live up at North Richmond, I’ll never know.”

[Deceased]:   “I want to finish building the house up there.”

[Val]:   “Well, before you go giving anyone a house, make sure you think hard about it.”

[Deceased]:   “Yes, I have. I have given Cabbie my word.”

[Val]:   “Right, OK then. Well come and eat your dinner.”

128. Raymond and Francine gave evidence that Jazmina moved to Los Angeles in 2016 for work, and that Jazmina asked her parents to accompany her to help her establish herself in her new city. Raymond gave evidence that he declined Jazmina’s request because he wanted to honour his promise to the deceased that he would look after Val. Francine’s evidence on this episode was more expansive. She deposed to a conversation she had with Raymond about his declining to help Jazmina resettle in Los Angeles:

[Francine]:   “I can’t believe you’re not going to come and help your daughter”

[Raymond]:   “You know I can’t”

[Francine]:   “I don’t get it. Don’t you want to look after your daughter?”

[Raymond]:   “Keeping my word I’m looking after everybody”

[Francine]:   “nope still don’t get it, how is that looking after your daughter?”

[Raymond]:   “I promised Rick I’d look after Val and him”

[Francine]:   “yeah I know, and you have but seriously”

[Raymond]:   “Well because I’ve kept my promise, Rick told me when Val goes he’s gonna sell her place at 34 and move to North Richmond and he’s gonna give me 36!”

[Francine]:   “what?”

[Raymond]:   “yeah so see one day when I’m gone, I can leave it for Jazmina”

[Francine]:   “I can’t believe it, you know the first time I met Rick you said that he was the nicest bloke I’ll ever meet, shit you weren’t wrong”

[Raymond]:   “I told you”

129. In early 2017, after returning from Los Angeles, Francine visited Raymond at No 36 where Raymond and the deceased were having lunch. While Raymond was in the kitchen, Francine and the deceased had the following conversation:

[Deceased]:   “did you settle ya girl in?”

[Francine]:   “yes but it was so hard to leave her”

[Francine]:   “Listen Rick, Raymond told me about you giving him this place when your mum’s gone” [The deceased], nodded and winked at me.

[Deceased]:   “I told you not to worry, I would look after him”

[Francine]:   “yes you did and my God how you have. Thank you”

130. Francine was asked in cross-examination about this conversation with the deceased in early 2017. Francine accepted that there was no specific mention of No 36 but said that she presumed that the deceased knew what she was saying, and she knew what he was saying.

131. I interpose here to note Raymond’s concession that he did make some overseas trips in recent years. Between 2013 and 2015, Raymond says he travelled to Thailand 3 or 4 times per year, and once per year between 2016 and 2017, staying 2 or 3 weeks at a time. 2017 was the last time Raymond travelled until he visited Jazmina in Los Angeles in 2020. The deceased prompted Raymond to travel on the occasion in 2017 over Raymond’s protests that he wanted to stay and help care for Val. On his 2020 trip, Raymond spoke to Francine on the phone every day to check on Val, and I infer that Raymond felt able to leave Val given that Francine could assist Val while he was away.

[413] Further, in the English case of Jennings v Rice [2002] EWCA Civ 159, the Court of Appeal noted the following about the nature of detriment that may be occasioned to a plaintiff in a case where the care of the promisor was part of the subject-matter of the promise or representation.

51. … Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant’s expectations. Detriment can be quantified with reasonable precision if it consists solely of expenditure on improvements to another person's house, and in some cases of that sort an equitable charge for the expenditure may be sufficient to satisfy the equity (see Snell's Equity 30th ed para 39-21 and the authorities mentioned in that paragraph). But the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms. Moreover the claimant may not be motivated solely by reliance on the benefactor’s assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the court has to exercise a wide judgmental discretion.

[Emphasis added]

[414] I accept that, in the present case, the “burden of care” described above is a description of a part of the relevant detriment claimed. While the plaintiffs did not live in the same house as the deceased (and so could be said to be under a lesser burden of care, especially given the presence of professional carers), they nonetheless did alter their life-style to accommodate the deceased’s needs, and to provide companionship and support as the deceased aged over a number of years.

[415] There were submissions made to the effect that the conduct said to amount to reliance had benefited the deceased but, as the defendant pointed out in oral submissions, the relevant question is not whether the conduct was to the benefit of the deceased but whether reliance on the representation or promise was detrimental such that it would now be unconscionable for the deceased, through her executor, to resile therefrom. Moreover, as I understood them, those submissions as to benefit went more to the proposition that, first, the deceased had intended the plaintiffs to rely on the promise, well understanding what would be involved in its performance; or, second, that on the contractual claim there had been no complaint as to the manner of performance of the obligations asserted to have been agreed on the part of the plaintiffs.)

[416] Thus, I find that detrimental reliance sufficient to render it unconscionable for the deceased to resile from the testamentary promises has been established; and the elements of proprietary estoppel made out (and it is unnecessary to consider the alternative claim in promissory estoppel).

215. In Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 (Zupicic v Paino), Sackar J held at [482]-[491] that the plaintiff acted to her detriment on the particular facts of that case, which involved the plaintiff doing such things for the deceased representor as: preparing food, spending Christmas and Easter over many years, taking him to medical appointments from time to time, bringing him clothes, refurbishing his kitchen, installing an air conditioner in his apartment, keeping him company, and cleaning and washing his belongings. Sackar J was also satisfied that a reason for the plaintiff refusing a promotion at work was to remain flexible to attend on the deceased representor. At [491]-[495], Sackar J wrote (emphasis added):

[491] The detriment so called although in a family setting to some extent is perhaps a misnomer but it was the additional time, energy and effort expended by the Plaintiff partly I accept out of a sense of familial obligation but I am equally certain as a result of the many promises from Mr Novick to leave her his entire estate. The travelling from the Northern Beaches to the Eastern Suburbs over the years was not and is still not an easy journey. In turn the Plaintiff and her family made a room available in their home at Mona Vale, where I am certain Mr Novick stayed happily from time to time over Christmas, New Year, Easter and on some weekends. Having an extra person in the house or at the dinner table over a long period, even when they are family can be and often is a burden. That burden is one that family members often willingly assume nonetheless it requires effort and in this case because of the distance between them considerable effort on the part of the Plaintiff. I am satisfied the considerable time and expended effort on Mr Novick over the many years would not have been done by the Plaintiff were it not for the promises made by him to her in relation to his estate. Those efforts were expended over at least 20 years. The cost in terms of money and time would be impossible accurately to quantify but on any view it was clearly very substantial.

Conclusion

[492] I am satisfied that over the many years Mr Novick indeed made the various promises which the Plaintiff and others have given evidence to the effect that as a result of looking after him he would leave his estate to her. I am also satisfied that the Plaintiff relied to her detriment upon those promises. The detriment suffered by dedicating time and effort to Mr Novick was life changing. Those years cannot be regained.

…

[494] In my view given the length of time over which the Plaintiff carried out the various activities as a result of his promises as I have found it would in my view be unconscionable to permit him to resile from the promises made and the expectations which he created in the mind of the Plaintiff and which caused her to expend the time and effort as alleged. In the circumstances in my view Mr Novick should be held to those promises.

[495] Further in my view this is a matter in which the mere measure of money is insufficient to recognise that which the Plaintiff has done in reliance upon Mr Novick’s promises. A substantial fulfilment of the assumption upon which the Plaintiff’s actions were based in my view requires her to be placed in a position whereas as far as can be now she obtains the benefit of what is left of his estate.

216. Luke’s submission does not give proper credit to Raymond’s contributions to Val’s care over a period of close to 17 years, which, to my mind, was the underpinning aim of the deceased’s offer that Raymond reside at No 36 in the first place. It is clear that Raymond fulfilled his duty with dedication up until the date of the 2016 Representations, then beyond that time until the date of the deceased’s death, and then right up until Val’s death in 2021. As Sackar J observed in Zupicic v Paino at [491], and as I consider to be a matter of human experience, the provision of care to a person requiring assistance, be they elderly or otherwise, can be a substantial burden – a word I use intending no disrespect whatsoever – on the care provider’s lifestyle, one which requires the expenditure of time and a wealth of emotional effort. I consider it the case that that burden is further pronounced when the person being cared for is not a relative but rather a neighbour or family friend. It is a burden which equity, in the circumstances of a given case, can recognise as giving rise to an equitable estoppel. In that context, Raymond’s outlay of some indeterminable sum of money towards renovations on No 36, the maintenance of the two adjacent properties in apparently squalid conditions owing to the deceased’s hoarding, and the payment of bills and rates, forms part of a broader picture in which Raymond changed the course of his life to dedicate almost two decades to aiding his friend to provide for his ailing mother.

217. The second component of Luke’s submission on the detriment issue was that Raymond cannot be said to have suffered a relevant detriment where he was inhabiting No 36 rent-free, or for the sundry expenses required of him by the deceased’s 2005 Representations, and therefore received the benefit of accommodation below the market rate, in circumstances where he was facing eviction from his rental property.

218. The law of equitable estoppel requires that the assessment of a plaintiff’s detriment involve consideration of any countervailing benefit that has accrued to them under the arrangement encouraged by the representations: Q (a pseudonym) v E Co (a pseudonym) at [154]-[157] (Meagher JA). Flowing from that is the further proposition, stated by Meagher JA in Q (a pseudonym) v E Co (a pseudonym) at [154], that: “[i]t is possible to conceive of cases in which a party relying on an expectation will have benefitted so greatly through his or her reliance that he or she would suffer no prejudice or disadvantage if the expectation were departed from.”

219. I do not consider that this is a case where the benefit of accommodation below market rate is so significant, when compared to the detriment of providing care and assistance to Val, that it has obviated that detriment, and that is for the reason that Raymond restructured his life for 17 years to provide care and assistance to Val in such a way that he fulfils the description of Ward CJ in Eq in Moore v Aubusson of the plaintiff’s situation in that case (at [411]):

[411] … That seems to me to be evidence of life-changing decisions in their personal lives that have had irreversible consequences (in the sense that one cannot now “turn the clock back” after the personal sacrifices that will inevitably have been made over the years in order to provide the assistance that was given), sufficient to meet the test for detrimental reliance approved in Sidhu v Van Dyke.

220. The third and final component of Luke’s submission on the detriment issue was that the deceased was in fact the primary care giver to his mother, and accordingly that Raymond’s contributions to Val’s care must have been limited as a result. One could add to that submission the suggestion that Francine shared the load in respect of Val’s care from 2016 onwards, though the basis upon which Francine provided care to Val (i.e., whether Francine was paid to do so by Val or Raymond, or otherwise) was not clearly established by the evidence. Val’s evidence would support a finding that the deceased was her primary carer until the time of his death, after which time Raymond and Francine were clearly her primary carers. Raymond accepted in cross-examination the suggestion that the deceased was the primary carer for his mother between 2004 and 2016. I do not think it is really relevant that the Court make a finding as to who was the ‘primary’ carer for Val at any given time because I do not take that term to have any real content. The relevant question is whether Raymond in fact suffered detriment by providing care services to Val, and the evidence does not support a finding that the deceased’s own contributions to Val’s care were of such quality as to make Raymond’s contributions less burdensome. The reality of the situation was that Raymond performed care services when the deceased could not, and it was in those situations that Raymond provided a service that was critical to the proper conduct of Val’s and the deceased’s lives. Over the course of 17 years, those contributions were substantial.

Detrimental reliance makes departure from expectation unconscionable

221. Next, as a matter of law, I am satisfied that the detrimental reliance by Raymond on the deceased’s 2005 Representations has made it unconscionable for the legal personal representative of the deceased’s estate to depart from the representations. In essence this is because Raymond fulfilled the conditions asked of him in the deceased’s 2005 Representations by dutifully expending the social and emotional energy and financial expense necessary. Satisfied as I am of Raymond’s assumption in fact, and the extent of his detrimental reliance, I am satisfied that it would be unconscionable for the deceased’s estate to avoid his obligation to make good his representation merely on the basis that he died completely unexpectedly before he had completed the transfer which I am satisfied he intended to cause to occur.

222. In the context of the unconscionability element, it bears remarking on the fact that Raymond expects to receive a 30 percent share of Val’s estate under Val’s 2021 Will, given evidence that Val’s intention for that gift was to make up for the failure of the devolution of the deceased’s estate to fulfil Raymond’s expectation to receive No 36. I am not satisfied that Val’s gift makes the deceased’s estate’s administrator’s departure from the deceased’s representations any less unconscionable. In the first place, Val’s actions are not those of the deceased’s estate; but crucially the gift that Raymond can expect to receive under Val’s 2021 Will is not at all commensurate with the proprietary assumption encouraged in Raymond and was unlikely ever to be commensurate with it.

Appropriate relief

223. The final matter to be addressed then is as to the appropriate relief in Raymond’s favour. I am satisfied that the relief sought in Raymond’s statement of claim is appropriate, namely that the Court declare that the administrator of the deceased’s estate hold the property to which I have referred in these reasons as No 36 on constructive trust in favour of Raymond, and order that the administrator transfer the property to Raymond, though I will stipulate a time frame of 28 days in which the transfer must occur. The “prima facie entitlement” of a representee in an action for equitable estoppel is the crystallisation of the assumed state of affairs, subject to any qualification necessary to avoid disproportionate injustice to others: Giumelli v Giumelli at 123 [42], 125 [50] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Moore v Aubusson at [417]-[423] (Ward CJ in Eq). Though Luke is the rightful beneficiary of the whole of the deceased’s estate on intestacy, his absence from Merrylands West throughout the deceased’s life has had the effect that no injustice will be visited upon him if he were not to have possession of No 36.

224. For the avoidance of doubt, I have found that Raymond is successful in his equitable estoppel claim on the basis of both the 2005 Representations and the 2016 Representations. The analysis of the elements of reliance, detriment and unconscionability are apposite to both pleaded permutations of the claim when the evidence of the almost 17-year period in which Raymond provided care to Val is viewed as a historical whole. The relief sought by Raymond reflects the claim pleaded on the basis of the 2016 Representations and is appropriate in the circumstances.

225. The appropriate costs order will be that Raymond is paid his costs on the ordinary basis, and that Luke is paid his costs on the indemnity basis, out of the deceased’s estate.

Family provision claim – consideration

226. In accordance with the observation of Kiefel CJ, Gageler and Keane JJ in Boensch v Pascoe (2019) 268 CLR 593 at 600-1; [2019] HCA 49 at [7], it is appropriate that the Court record nominal findings on the issues arising in the family provision claim notwithstanding that Raymond has been successful in his equitable estoppel claim. I have set out the relevant evidence above, but this is one of those uncomfortable cases where a successful appeal of my decision on the equitable estoppel claim could turn on innumerable factors of both a factual and legal nature, any number of which would influence the determination of the family provision claim. The Court must do what it can in the circumstances.

227. The first issue in the family provision claim is whether, given that Raymond’s family provision application had been made later than 12 months after the date of the death of the deceased, the Court ought to order otherwise, on sufficient cause being shown, that Raymond be permitted to make his family provision application: Succession Act, s 58(2). I would have determined that Raymond has shown cause for his delay of about 1 year and 3 months. The deceased died in April 2019 and Luke appeared to Val and Raymond only in April 2020, that being the end of the 12-month limitation period imposed by s 58(2). I have accepted Raymond’s evidence that he did not believe Luke’s bare assertion at that time that Luke was the deceased’s son, and that Raymond had no reason to believe it. The only real reason Raymond would have had to believe that his position in No 36 was unstable was the appearance of Luke at Merrylands West along with some reasonable basis for Luke’s claim that he was entitled to the deceased’s estate on intestacy as the deceased’s biological son. Raymond (and Val) would have been on notice of the likelihood of Luke’s parentage in February 2021 and then satisfied of it in June 2021. The delay from either of those months until Raymond’s filing of his statement of claim in July 2021 is therefore explicable and not prejudicial to Luke.

228. The second issue is whether Raymond is a person who was, at any particular time, wholly or partly dependent on the deceased person: Succession Act, ss 57(1)(e)(i), 59(1)(a). The question is: “has reliance on another to fulfil a need been shown?” and it is a question of fact: Spata v Tumino [2018] NSWCA 17 at [71], [78] (Payne JA, with whom Macfarlan JA and Sackville AJA agreed at [1] and [132] respectively). The role of the word “partly” in the statutory language is to set the requisite level of dependency at a “more than minimal”, rather than a “significant” or “substantial”, level: Chisak v Presot [2022] NSWCA 100 at [47], [57] (White JA, with whom Macfarlan and Gleeson JJA agreed at [1] and [2] respectively). Luke relied on two propositions stated in Spata v Tumino on this issue:

1. “Legal title to property is a relevant factor to be considered when addressing the question of dependency upon another for accommodation but is not, of itself, determinative of the question”: Spata v Tumino at [84] (Payne JA); and

2. “[R]eliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence”: Spata v Tumino [2018] NSWCA 17 at [82] (Payne JA).

229. I would have determined that Raymond was at least partly dependent on the deceased for at least the period of 6 or 7 months in 2010 in which the deceased did all shopping for Raymond and in which the deceased offered emotional support to Raymond in circumstances where Raymond was anxious and depressed in light of his daughter’s brain surgery and he reduced his work hours significantly. The evidence of that fact was not challenged. That fact elevates Raymond’s case above one in which he was merely lodging in another’s property without paying rent. Above and beyond that fact is that the very impetus for Raymond’s moving in to No 36 in early 2005 was the financial and emotional difficulty Raymond was facing in 2004: Raymond needed security of housing and social stability, and the deceased provided that by allowing him to reside at No 36. Even if it can be said that Raymond could have improved his position sufficiently to secure his own housing at some point in time, the statutory test is such that “[d]ependency may exist irrespective of whether the dependent person is financially or physically able to support himself or herself”: Tobin v Ezekiel (2012) 83 NSWLR 757 at 787; [2012] NSWCA 285 at [110] (Meagher JA, with whom Basten and Campbell JJA agreed at 761 [1] and 764 [19] respectively).

230. The third issue is whether Raymond is a person who was, at the particular time of being wholly or partly dependent on the deceased person, or at any other time, a member of the household of which the deceased was a member: Succession Act, ss 57(1)(e)(ii), 59(1)(a). In Yesilhat v Calokerinos [2021] NSWCA 110 at [133], Brereton JA (with whom Bathurst CJ agreed at [1]) stated:

[133] It is also inherent in the concept of membership of the same household that the members of the household be living together. The notion of membership of a household involves a common residence in which two or more persons not only share the facilities but also live together. Membership of (as distinct from presence in) a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree, and there are no hard and fast rules, at least generally, the minimum requirements include at least some element of residing (as distinct from visiting), and mutual living so that there is a quasi-family unit (as distinct from boarding). The fact that a person lives in the residence of another only periodically, or for a very short period, is insufficient to render him or her a member of the other’s household, as the required degree of continuity and permanency is not present. Where one person occasionally stays over at the other’s house, but maintains his or her own separate accommodation as a principal place of residence, it cannot be said that they are living together or members of the same household, notwithstanding that the emotional relationship between them is substantial, strong, loving, intense, and enduring. In this respect, there is a distinction between a visitor and a resident, which may be easier to recognise than precisely describe; but residence involves aspects of continuity and permanence, and indicia such as use of the place as an address, and as a location where personal items and effects are kept and the activities of daily living (such as sleeping, washing and dressing) are performed.

231. I have above found that the deceased resided across both No 34 and No 36 until the time of the 2016 Representations. It cannot be said that the deceased was merely a visitor at No 36, and nor that he was merely a boarder there. It also cannot be said, to engage the phraseology of Brereton JA quoted above, that the deceased “occasionally stay[ed] over at [Raymond’s] house, but maintained his or her own separate accommodation as a principal place of residence” at No 34. The deceased kept personal items and effects at No 36 and he slept there. The picture presented by the evidence of the period between the 2005 Representations and the 2016 Representations is that the deceased treated the two properties as one unified domestic space in which he could move freely, and into which he had invited Raymond to reside as well. I would therefore have determined that Raymond and the deceased were members of the one household for some period of time between the 2005 Representations and the 2016 Representations.

232. The fourth issue is whether, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application: Succession Act, s 59(1)(b). The test in this respect is whether Raymond would be regarded as a natural object of the deceased’s testamentary intentions: Sun v Chapman [2022] NSWCA 132 at [120] (White JA), [193] (Brereton JA). I would have determined that he was one. From the 2016 Representations at the latest until the date of his death, the deceased intended that No 36 would be given inter vivos to Raymond in recognition of Raymond’s support in caring for Val. I have already stated that that was not a testamentary intention, but it was an intention that Raymond benefit significantly from the deceased’s estate during the deceased’s lifetime. Raymond contributed in a substantial way to Val’s welfare and therefore to the deceased’s life. The deceased clearly considered Raymond to be a natural beneficiary of his property, and his contributions to the deceased’s and Val’s lives justify that status in an objective sense.

233. The fifth issue is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Raymond has not been made by the operation of the intestacy rules in relation to the estate of the deceased: Succession Act, s 59(1)(c). I would have determined that adequate provision had not been made for Raymond’s proper maintenance, in that the deceased did not discharge his moral duty to provide for Raymond in circumstances where he made no provision for Raymond and the intestacy rules left the entirety of the deceased’s estate to his only child. Raymond and the deceased’s friendship was rich and enduring, and they contributed substantially to each other’s lives for around 14 years. Raymond has demonstrated his need for provision in respect of his housing security and medical conditions. I have considered that the deceased (and later Val) allowed Raymond to reside rent-free at No 36 for around 16 years and I accept that this was a significant benefit to Raymond, but I do not consider, in all the circumstances in the case, that that fact alone would absolve the deceased of his moral duty to make adequate and proper provision for Raymond: to do so would be to ignore the substance of the relationship between Raymond and the deceased that Raymond resided at No 36 in return for Raymond’s contributions to Val’s welfare. Ultimately, I am satisfied that, had he not predeceased his mother, the deceased would have remained true to his word to Raymond and gift No 36 to him, wholly in accordance with community expectations.

234. The sixth and final issue is whether the Court thinks it ought to make an order for provision out of the estate of the deceased for the maintenance, education or advancement in life of Raymond, having regard to the facts known to the Court at the time the order is made; and, if so, what order: Succession Act, s 59(2). I would have determined that the Court ought to make an order that Raymond receive $750,000 by way of provision from the deceased’s estate. To do so would be to ensure that Raymond could purchase suitable accommodation and possibly retain a sum for contingencies. That figure would reflect the deceased’s clear intention to benefit Raymond for his assistance rendered to Val and the strength of their friendship. After the payment of costs out of the estate, that order would leave Luke with a figure just shy of $1.5 million, primarily in the form of the North Richmond Property.

Orders

235. Given Raymond has been successful in his equitable estoppel claim on the basis of the 2016 Representations, the Court:

1. Declares that the defendant as administrator of the estate of the late Richard John Janson (the deceased) holds the deceased’s property at [No 36] on trust for the plaintiff.

2. Order that the defendant as administrator of the deceased’s estate cause [No 36] to be transferred to the plaintiff within 28 days of these orders.

3. Orders that the plaintiff’s costs be paid out of the deceased’s estate on the ordinary basis.

4. Orders that the defendant’s costs be paid out of the deceased’s estate on the indemnity basis.

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Decision last updated: 16 December 2022