Elias George Wakim v Karime Wakim - [2017] NSWSC 1283

Supreme Court

New South Wales

Medium Neutral Citation: Elias George Wakim v Karime Wakim [2017] NSWSC 1283
Hearing dates: 29, 30, 31 August, 1 and 5 September 2017
Decision date: 22 September 2017
Jurisdiction: Equity
Before: Sackar J
Decision:
See [445]

Catchwords:
CONTRACTS — Formation — Intention to create legal relations

ESTOPPEL — Proprietary estoppel — Estoppel by encouragement

FAMILY LAW — Adjustments under Property (Relationships) Act 1984 (NSW)
CIVIL PROCEDURE — Standing of bankrupt
Legislation Cited: Bankruptcy Act 1996 (Cth)
Property (Relationships) Act 1984 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allied Pastoral Holdings Pty Ltd v Cmr of Taxation (Cth) [1983] 1 NSWLR 1
Ashton v Pratt [2015] NSWCA 12
Baumgartner v Baumgartner (1987) 164 CLR 137
Browne v Dunn (1893) 6 R 67
Cox v Journeaux (No 2) (1935) 52 CLR 713
Moss v Eaglestone (2011) 83 NSWLR 476
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Daniel Behman v Tarek Behman [2015] NSWSC 1787
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Fox v Percy (2003) 214 CLR 118
Giumelli v Giumelli (1999) 196 CLR 101
Hamilton v Merck and Co Inc; Hutchinson v Merck Sharp and Dohme (Australia) Pty Ltd (2006) 66 NSWLR 48
Hayes v Marquis (2008) NSWCA 10
John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Milling v Hardie [2014] NSWCA 163
Muschinski v Dodds (1985) 160 CLR 583
Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605
Riches v Hogben [1985] 2 Qd R 292
Sharpless v McKibbin [2007] NSWSC 1498
Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42
Sion v NSW Trustee & Guardian [2013] NSWCA 337
Svenson v Payne (1945) 71 CLR 531
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Watson v Foxman (1995) 49 NSWLR 315
Willmott v Barber (1880) 15 Ch D 96
Category: Principal judgment
Parties: Elias George Wakim (Plaintiff)
Karime Wakim (Defendant)
Representation:
Counsel:
Gregory George (Plaintiff)
Charles Robinson (Defendant)
Solicitors:
Margiotta Solicitors & Attorneys (Plaintiff)
Cambridge Law (Defendant)

File Number(s): 2015/229975
Publication restriction: n/a

Judgment

The proceedings
Background facts
Procedural history
Legal principles
The Bankruptcy Act 1966 (Cth)
Intention to create legal relations
Oral contracts
Constructive trusts
Estoppel by encouragement
The Property (Relationships) Act 1984 (NSW)
Credit

Parties’ submissions
Standing
The Alleged 1990 Agreement
The Plaintiff’s submissions
The Defendant’s submissions

Relief sought
The Plaintiff’s submissions
The Defendant’s submissions

Property (Relationships) Act claim
The Plaintiff’s submissions
The Defendant’s submissions

Credit

The evidence
Overview of the evidence
Evidence of the Plaintiff
Evidence of Mr Rocco Ardino
Evidence of Mr George Kanan
Evidence of Dr Abdul Sam Qureshi
Evidence of Mr Jimmy Kanan
Evidence of Ms Joumana Rizko
Evidence of Dr Brian Kurrle
Evidence of Mr Emile Wakim
Evidence of Mariette Wakim
Evidence of Marie Kanan
Evidence of the Defendant
Evidence of Mr Raed Rahal

Factual consideration
(A) Context and substance of the alleged 1990 conversation
(B) The documents following the Alleged 1990 Agreement
(a) The Defendant’s wills
(b) The Plaintiff’s government forms
(c) The Plaintiff’s Tadros Supreme Court Affidavit
(d) The Police Statement of Brigitte Wakim

(C) The alleged $202,000 consideration
(i) Source of the alleged $202,000 consideration
(a) Monies around the time of the Alleged 1990 Agreement
(b) The $1,045,000 compensation monies in February 2004
(c) The $387,000 in January 2005
(d) The $8,500 in 2007 – 2008
(ii) Payment of the alleged $202,000 consideration
(iii) Receipt of the alleged $202,000 consideration

(D) Plaintiff’s contributions beyond the alleged $202,000 consideration
Conclusion on the evidence

Legal consideration
Standing
Claim for specific performance, constructive trust or estoppel
Claim under the Property (Relationships) Act

Conclusion

Judgment

The proceedings

These proceedings arise from an alleged agreement between a son and his parents where he would receive the house after they died, in return for him providing his parents care until that date, and consideration of $200,000.
The Plaintiff claims he loyally performed such an agreement, and makes claims in contract and estoppel. As a result the Plaintiff seeks an order for specific performance of the agreement and other consequential relief including a declaration the Defendant holds her registered interest in the property on constructive trust for the Plaintiff. In the alternative, the Plaintiff seeks financial adjustment under the Property (Relationships) Act 1984.
The Defendant denies the agreement and performance of the agreement, and further denies the Plaintiff’s entitlement to any of the relief sought.

Background facts

The Plaintiff is the Defendant’s son, and the third eldest of her six children. The Plaintiff was born on 1 November 1958, and the Defendant was born on 7 July 1935.
The Plaintiff’s father, the late Mr Wakim, purchased 28 Rosemont Street Punchbowl (the Punchbowl Property/the Property) in 1972, the year the Defendant and all her children, including the Plaintiff, arrived in Sydney from Lebanon.
The Plaintiff commenced at Punchbowl Boys High School in 1972.
On 3 April 1973 the late Mr Wakim made a will. He appointed his wife, the Defendant, sole executrix and trustee. In the event she did not survive him by 30 days after his death he appointed his eldest son Moussa and the Plaintiff co-executors and trustees. After the payment of all relevant expenses and debt his estate was to be divided amongst all of his children equally.
The Plaintiff left school in 1975 and between then and 1980 had different jobs, first at Brodie Lights, then at Parker Furniture and then joining his brother Moussa in a car business trading as Rosemont Motors.
In 1980 he commenced employment with Nader Petroleum trading as Amoco at Lakemba as a driver attendant and relief manager. Whilst employed on 26 March 1980 he suffered a back injury, resulting in lumbar surgery in 1981. The Plaintiff has not worked since this accident.
On 16 July 1985 the Plaintiff was awarded the sum of $860,000 plus costs by Yeldham J in his claim for damages against Mr Nader. In the same year he was granted an invalid pension.
In 1987 Mr Nader’s trustee in bankruptcy required to take further proceedings against Mr Nader to recover property for the benefit of creditors. The Plaintiff alleged he received a number of payments as the priority creditor from Mr Nader’s estate, including $136,873 and $89,000, between 1987 and 18 January 1993.
In August 1989 the Plaintiff married a Ms Joanne Vendervelde and for a time they moved into an apartment in Punchbowl. They separated in about April or May 1990.
The Plaintiff moved back to live with his parents and asserted in June 1990 he had the relevant conversation with them leading to the pleaded agreement which is set out in paragraph [8] of his first affidavit (the Alleged 1990 Agreement). In summary, the Plaintiff asserted the agreement was that he would provide care and financial assistance out of his pension monies towards groceries, bills, pharmaceuticals and pay the sum of $100 a week for board to his parents. Further, although he was on a disability pension at the time of the conversation, he promised to give his parents $200,000 when he received monies from a compensation claim. In return they agreed he could live in the Property for the rest of his life and it would be solely his upon their death.
On 5 July 1990 the Plaintiff’s invalid pension was converted to a disability pension.
From about July 1990 the Plaintiff was granted rental assistance from the Department of Social Security and further asserted he commenced contributing towards household expenses and other outgoings in connection with the Punchbowl Property.
The Plaintiff asserted he first saw Dr Kurrle at Yagoona Medical Centre in May 1995 and the Defendant first saw Dr Kurrle on 16 June 1995.
On 3 August 1996 the late Mr Wakim died in Bankstown Hospital following a stroke at home.
On 30 July 2000 the Plaintiff was granted a carers allowance from Centrelink.
On 6 April 2004 the Plaintiff received $1,045.115.20 net being settlement monies in Federal Court Proceedings Matter N1926/2001.
In April 2004 the Plaintiff alleged he discussed with the Defendant the Alleged 1990 Agreement, and that he would commence the payment of $200,000 in instalments.
Commencing on 11 May 2004 until 9 June 2004 the Plaintiff alleged he gave the Defendant 17 lots of $10,000 in cash. Between 18 February 2005 and 2 March 2005 he alleged he gave the Defendant a further four payments, two of $10,000 each in cash and two of $6,000 in cash. The Plaintiff asserted that he therefore gave The Defendant a total of $202,000 in the period specified.
In 2006 the Plaintiff commenced proceedings against a Mr Anthony Tadros in the Federal Court. These were struck out in 2007. Following this, the Plaintiff commenced proceedings against Mr Tadros in the NSW Supreme Court.
On 2 August 2007 the Plaintiff asserted he directed his then solicitors Paul Mee Ling to draw a trust cheque in favour of the Defendant for $5,000.
On 13 August 2008 the Plaintiff asserted he directed his then solicitors Paul Mee Ling to draw a trust cheque in favour of the Defendant for $1,500.
On 10 September 2008 the Plaintiff asserted he directed his then solicitors Paul Mee Ling to draw a further trust cheque in her favour for $2,000.
Between 2008 and 2010, a Ms Janice Smith (said to be the Plaintiff’s fiancé) became the Defendant’s carer.
On 17 June 2010 the Defendant made a will at the offices of Thurlow Fisher Solicitors, Bankstown prepared by a Mr Tim Oliffe, solicitor (the 2010 will).
On 29 August 2010 following an incident at the Punchbowl Property, the Plaintiff alleged the Defendant made an admission to his sister in law Brigitte Wakim about the Alleged 1990 Agreement.
On the same day the Plaintiff was arrested and taken to Campsie Police Station and an AVO was issued. It prohibited the Plaintiff from attending at the Property or his brother Sayed’s house at 21 Rosemont Street, Punchbowl.
On 3 September 2010 the AVO was quashed by a Magistrate at Burwood Local Court.
On 5 November 2012 the Plaintiff took the Defendant to the offices of Mr Rocco Ardino, solicitor, in connection with a caveat over the Punchbowl Property and revocation of the then Power of Attorney.
On 6 November 2012 the Plaintiff and the Defendant attended Mr Ardino’s offices a second time.
On 10 November 2012 the Defendant had her will retyped at the Kanan Pharmacy and witnessed by Jim Kanan and Joumana Rizko, replacing Sayed with the Plaintiff as Executor.
On 10 November 2012 the Plaintiff instructed Mr Rocco Ardino to commence proceedings against the Defendant.
On 18 December 2013 the Plaintiff was declared bankrupt by the Federal Court.
On 27 August 2014 the Defendant was admitted to hospital. She was admitted again to hospital in October 2014. She was discharged in January 2015 but readmitted in March/April 2015.
On 10 April 2015 the Defendant listed the Punchbowl Property for sale with Bobb Real Estate. The Plaintiff instructed Mr Ardino to prepare and lodge a caveat (Caveat AJ 424692) over the Punchbowl Property.
On 23 April 2015 the Defendant required Centrelink to remove the Plaintiff from their records as her carer.
On 24 July 2015 the Defendant exchanged contracts for the sale of the Punchbowl Property. It is accepted that this contract has now been rescinded by the purchaser.

Procedural history

The Plaintiff was declared bankrupt on 18 December 2013 but nonetheless commenced these proceedings by summons on 6 August 2015.
On 12 July 2016 the Plaintiff as the bankrupt entered into a deed of assignment between the official trustee in bankruptcy and Mr Efstratios Karatzas as assignee, where Mr Karatzas purported to take an assignment of a chose in action the subject of these proceedings.
On 13 July 2016 the Defendant applied to have the proceedings dismissed.
On 7 October 2016 according to Pembroke J in his judgment of 25 November 2016, the parties agreed to the substitution of the assignee, Mr Karatzas, as the Plaintiff in the proceedings but reserving the Defendant’s right to challenge the standing of Mr Karatzas.
This agreement was reflected in the orders of Stevenson J on 25 October 2016, which included, by consent of the parties, “Efstratios (Steve) Karatzas be substituted for Elias George Wakim as the Plaintiff in these proceedings.”
On 17 November 2016 two notices of motion came before Pembroke J. The first was the Defendant’s amended notice of motion seeking orders that included the dismissal of the proceedings. The second was the Plaintiff’s notice of motion seeking orders that a caveat lodged by the second named Plaintiff (Mr Karatzas) be extended pending final order in the proceedings and further that the Defendant attend an appointment with a neurocognitive psychologist or neurosurgeon.
Pembroke J delivered judgment on 25 November 2016, forming the view that the Second Plaintiff had no standing and that the recital E in the Deed of Assignment contending that the bankrupt’s interest in the Property was not the property of the bankrupt estate was correct, given it had been acquired with protected money. His Honour therefore ordered “Mr Elias George Wakim be reinstated as Plaintiff in these proceedings.” He made a number of other consequential orders as the result of which the matter was transferred to the Expedition List.
The matter came before me for directions on 9 December 2016 where, among other things, I ordered the Plaintiff file a Statement of Claim on or before 23 December 2016. It appears from various transcripts that while a draft Statement of Claim may have been sent to the Defendant sometime in February 2017, a final Statement of Claim was not filed until 10 March 2017 (T4/8-15; T128/4-9; Transcript of 23 March 2017 T1/46-T2/3).
The 10 March 2017 Statement of Claim recorded Mr Wakim as First Plaintiff and Mr Karatzas as Second Plaintiff.
The matter came before me for final hearing on 29 August 2017, whereby Mr Karatzas was listed as Second Plaintiff, having not been removed from the proceedings by Pembroke J despite his Honour’s finding he lacked standing. The Second Plaintiff made no appearance, and informed the court via Counsel for the Plaintiff he no longer wished to take part in the proceedings.
On 1 September 2017, I ordered the Second Plaintiff be removed from the proceedings. Thus, in the proceedings before me the only active participants were the First Plaintiff and his mother the Defendant, each of whom called a number of witnesses. Thus, the First Plaintiff, Mr George Elias Wakim, is hereafter referred to as the Plaintiff.

Legal principles

The Bankruptcy Act 1966 (Cth)

The Defendant submits the Plaintiff lacks standing as any legal or equitable interest the Plaintiff may have in the Punchbowl Property was excluded from “property divisible amongst the creditors of the bankrupt” pursuant to section 116(1) of the Bankruptcy Act 1996 (Cth) (Bankruptcy Act).
Section 116(2)(g) of the Bankruptcy Act excludes from property divisible among creditors of the bankrupt:

(g) any right of the bankrupt to recover damages or compensation:
(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or
(ii) in respect of the death of the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt;
and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;

Further where, at any time, the whole, or substantially the whole, of the money paid for the purchase, or used in the acquisition, of particular property was protected money within the meaning of section 116(2)(g) of the Bankruptcy Act, that property is similarly excluded from property divisible among the bankruptcy’s creditors: sections 116(2)(n) and 116(3) Bankruptcy Act.
In Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721, Dixon J (as his Honour then was) set out the test for what constitutes an action for personal injury or wrong under section 60(4) of the Bankruptcy Act, being the complementary provision of section 116(2)(g)(i):

The test appears to be whether the damages or part them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.

In Moss v Eaglestone (2011) 83 NSWLR 476 at 486-494, Allsop P (as his Honour then was) reflected on the legislative history of section 116(2)(g)(i) and section 60(4), observing:

… the distinction [in those sections] between person and property is a substantive one. It was a distinction made by courts and judges of the highest authority who declared it to be unjust and harsh that the estate of the bankrupt and the participating creditors should be swelled and advantaged by a wrong to the person or reputation of the bankrupt.

Intention to create legal relations

The Court must make an objective assessment on the state of affairs between the parties in determining whether the parties manifest an intention to create legal relations; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 (Ermogenous) at [25].
As Bathurst CJ explained in Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 at [15]:

It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72 ; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd(1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd(1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).

While there is no presumption “family arrangements” are generally not intended to give rise to legal obligations (Ermogenous at [26]-[27]), the relationship of the parties and the circumstances in which the arrangement was entered into form part of the surrounding circumstances from which it will be determined whether or not a contract came into existence; Ashton v Pratt [2015] NSWCA 12 at [73] per Bathurst CJ (with whom McColl JA and Meagher JA agreed).
Further, the vaguer the conversation purportedly regarding the legal obligation, the less likely the conversation comprised of language of a contract; Ashton at [73]; Sion v NSW Trustee & Guardian [2013] NSWCA 337 at [40]-[41] per Emmett JA (with whom Basten and Barrett JJA agreed).

Oral contracts

It is salutary to repeat the oft-cited words of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, cautioning about the reliability of oral evidence:

Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not …attained or established independently of the nature and consequence of the fact or facts to be proved” including 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”: Helton v Allen (1940) 63 CLR 691 at 712.

Further, as observed by Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451:

[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, 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 of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.

Constructive trusts

The starting point for the elucidation of the law of constructive trusts is the Deane J (with whom Mason J agreed) in Muschinski v Dodds (1985) 160 CLR 583 (Muschinski) at 613-614:

Like express and implied trusts, the constructive trust developed as a remedial relationship superimposed upon common law rights by order of the Chancery Court. It differs from those other forms of trust, however, in that it arises regardless of intention. … the rationale of the constructive trust must still be found essentially in its remedial function which it has predominantly retained. … Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion could be contrary to equitable principle.

His Honour also stated at 620:

… the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do …

His Honour noted that the personal element of the relationship between Mrs Muschinski and Mr Dodds introduced a number of additional “special considerations” to be taken into account when determining whether the conduct of the relevant party bears an unconscionable character. Deane J described it at 622 as "a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home-making and family care".
The High Court embraced Deane J in Muschinski in Baumgartner v Baumgartner (1987) 164 CLR 137 in the principal judgment (Mason CJ, Wilson and Deane J) and with the concurrence of Toohey and Gaudron JJ in their separate judgments. In particular, the plurality at 148 considered Deane J’s judgment in Muschinski as an application of:

... the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them .

Further principles relevant to whether the Court can impose a constructive trust to reflect a claim to a proprietary interest in land were set out by White J in Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42 (Shepherd) at [34]-[55], and subsequently summarised by Rein J in Daniel Behman v Tarek Behman [2015] NSWSC 1787 at [33]:

I derive the following principles from Doolan:
1. the inquiry for the purposes of determining whether there was a common intention is inquiry as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons would have intended: see [34]
2. the intention need not be that the parties have a specific share of the property
3. intention may be established by:
1. agreement as to how the property should be held
2. express statements of intention
3. intentions inferred from conduct

4. a common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture (Pettitt v Pettitt [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1971] AC 886 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342)
5. the intentions may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying of mortgage or the payment of expenses which free up funds for that purpose (see [38]). In the case of ‘the common intention’ constructive trust there is no presumption that the beneficial interest is in proportion with the contribution of the purchase price
6. declarations about intentions before or at the time of the transaction or so close in time after the transaction as to constitute a part of it can be relied on (see [39])
7. a plaintiff must show that he or she acted to his or her detriment in a way referable to the agreement or intention that she have an interest in the property
8. conduct which is insufficient to establish a common intention as to ownership of the property may be sufficient to constitute relevant actions to the plaintiff’s detriment to establish a trust if the common intention is established otherwise
9. conduct may be both the evidence from which an intention that the plaintiff have a beneficial interest can be inferred and the act of detrimental reliance
10. equality is equity but that statement can be departed from when the parties make disproportionate contributions to the acquisition of the property
11. the constructive trust may arise after the acquisition of a property where the common intention is formed at a later time: Doolan at [45] and see Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044 at [55]

Estoppel by encouragement

Mason CJ and Wilson J explained the doctrine of estoppel by encouragement in Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404:

…a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person's land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances.

More recently, Handley AJA (with whom Allsop P and Giles JA agreed) described estoppel by encouragement in Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at [21] as coming into existence:

when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment.

In Giumelli v Giumelli (1999) 196 CLR 101 at 121, the joint judgment of Gleeson CJ, McHugh, Gummow and Callinan JJ approved McPherson J’s explanation in Riches v Hogben [1985] 2 Qd R 292 at 301 of the distinction between equitable principles and the enforcement of contractual obligations:

What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise. If there is such a promise, then the plaintiff must resort to the law of contract in order to enforce it, it being the function of equity to supplement the law not to replace it. The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates ... Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff’s part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.

In Milling v Hardie [2014] NSWCA 163 at [50] - [52], Macfarlan JA added a “not-inconsistent fourth requirement of an estoppel by encouragement” is "the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights"; Willmott v Barber (1880) 15 Ch D 96 at 105 per Fry J, cited with approval in Svenson v Payne (1945) 71 CLR 531 at 542.

The Property (Relationships) Act 1984 (NSW)

In the alternative, the Plaintiff makes a claim for adjustment of the property interests in the Punchbowl Property pursuant to Part 3 of the Property (Relationships) Act 1984 (NSW) (PRA), by reason of the “close personal relationship” alleged between the Plaintiff, his late father, and the Defendant.
Section 5 of the PRA sets out the definition of a domestic relationship:

5 Domestic relationships
(1) For the purposes of this Act, a domestic relationship is:
(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward; or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

Section 14 of the PRA provides a party to a domestic relationship may apply to the Supreme Court for an order under Pt 3 for the adjustment of interests with respect to the property of the parties to the relationship. Section 20(1) of the PRA relevantly provides that on an application, the Court may make such order adjusting the interests of the parties in the property as to it seems just and equitable, having regard to:

the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties, or either of them, or to the financial resources of the parties or either of them, and the contributions made by either of the parties to the relationship, including any contributions in the capacity of homemaker, to the welfare of the other party or to the welfare of the family constituted by the parties.

McColl JA (with whom in this respect Beazley JA agreed) summarised the principles relevant to the evaluative task under section 20 in Hayes v Marquis (2008) NSWCA 10 at [106]-[108]:

In considering the s 20 task, however, the Court must recognise the discretionary nature of the exercise and must approach consideration of a s 20 order in the manner laid down in House v R [1936] HCA 40 ; (1936) 55 CLR 499 (at 504–505) per Dixon, Evatt and McTiernan JJ. As Campbell JA explained:
Another type of task concerns the evaluative task that the primary judge has performed, of deciding what, in all the circumstances, having regard to the factors listed in section 20, seems just and equitable. Part of that task involves weighing the various matters that need to be taken into account. Part of that task can involve deciding what is the most appropriate methodology to use, in the circumstances, to carry out the evaluative task. Insofar as the appeal involves the question of as at what date the valuation should be taken, that is a question of the appropriate methodology to carry out the statutory task. Each of those aspects of the evaluative task involves the exercise of a judicial discretion. Its discretionary nature is underlined by the expression “to it seems” when section 20 talks of the adjustment that “to it seems just and equitable”. (emphasis in original)

[107] Exercising the discretion under s 20 required the primary judge to identify and (so far as possible) value the contributions that are being taken into account and identify and (so far as possible) value the property concerning which it is open to the court to make an adjustment. The final step in the process of arriving at an order is to make a "holistic value judgment", that is to say, to decide what adjustment of property seems just and equitable having regard to the contributions identified in s 20(1)(a) and (b): Manns v Kennedy (at [64]).
[108] While the Court has “a broad discretion” in determining the approach to adopt in considering what order to make under s 20, two approaches are usually referred to, global and asset-by-asset: Saric v Steward [2006] NSWCA 260 (at [63]) per McColl JA (Handley and Santow JJA agreeing); Kardos v Sarbutt (at [51]); Bilous v Mudaliar [2006] NSWCA 38 at [42] per Ipp JA (Giles and McColl JJA agreeing). Care must be taken when either is adopted to conduct that might be described as a cross-checking process as described by Ipp JA in Bilous (at [43]):
If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets.

Brereton J provided further guidance on the application of section 20 of the PRA in Sharpless v McKibbin [2007] NSWSC 1498 – the primary case relied upon by the Plaintiff on this point in these proceedings. Brereton J noted at [3]-[4]:

[3] Once it is established that there was a domestic relationship between the parties, the exercise of jurisdiction under s 20 involves three main steps. The first is the identification and valuation of the property of the parties, which determines the “divisible pool of property” — that is, “the property of the parties to the relationship or either of them” referred to in s 20 which may be the subject of an adjustive property order under that section. The second is the identification, evaluation and weighing of the respective contributions of the parties of the types referred to in s 20, and typically though not invariably results in an apportionment between the parties on a percentage basis of the overall contributions (of the types referred to in s 20) of each of them, made to the date of hearing. The third is the determination of what order is required sufficiently to reflect and recognise the applicant’s contributions, in the context of the contributions as a whole of both partners, and typically results in an order that leaves the applicant with that percentage identified in the second step of the divisible property identified in the first step [Evans v Marmont (1997) 42 NSWLR 70 ; (1997) 21 Fam LR 760; (1997) DFC 94–184; Jones v Grech (2001) 27 Fam LR 711; (2001) DFC 95–234; [2001] NSWCA 208; Kardos v Sarbutt (2006) 34 Fam LR 550 ; [2006] NSWCA 11].
[4] Accordingly, the principal issues are:
• Was there a domestic relationship between the parties;
• What is the divisible pool of property;
• What were the respective contributions of the parties under s 20; and
• What order should be made, as a matter of justice and equity, to reflect and recognise those contributions?

Credit

A judge is not bound to accept all or any of that which a witness attests to, even if the witness is not cross examined; see the authorities collected by O’Loughlin J in Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [118]-[123].
However, in making assessments of credibility, trial judges should refrain from drawing inferences too willingly from the demeanour of witnesses. Contemporaneous documents will almost always be a far more reliable guide than observations of a witness’s demeanour, especially when they are created against interest. As noted by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [30]-[31]:

30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in as appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):
“... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility.

The rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) may also be relevant to a judge’s assessment of a witness’s credibility. Hunt J subjected the rule in Browne v Dunn to his typically lucid analysis in Allied Pastoral Holdings Pty Ltd v Cmr of Taxation(Cth) [1983] 1 NSWLR 1 at 26. Putting or failing to put material matters to a party or witness will often have a significant effect on a trial judge’s ability to form an opinion on that matter or at least the witness’s credit.

Parties’ submissions

Standing

The Defendant submits the Plaintiff lacks standing as he failed to discharge his evidentiary onus of showing the funds said to be the source of the consideration under the Alleged 1990 Agreement was “protected money” under section 116 of the Bankruptcy Act. The Defendant notes the only evidence the Plaintiff can rely on is Exhibit P3, being the reconciliation of Mr Nader’s estate document dated 18 January 1993, and the Federal Court Orders at Annexure B to Mr George Wakim’s affidavit dated 5 August 2015, in addition to his oral assertions (T584/38-47) that he received the money following a suit against Mr Nader’s trustee (T315/30-T319/45; Defendant’s opening submissions [6]-[8]; Defendant’s closing submissions [9]-[15]).
The Plaintiff submits he was not bankrupt at the date these proceedings were commenced, which he asserts was the 10 March 2017, the date the Statement of Claim was filed (PCB 34), pursuant to reg 19 of the Uniform Civil Procedure Rules 2005 (NSW). According to the Plaintiff, his bankruptcy period ended in December 2016 and he was thereafter free and able to deal with his property as he wished (T325/22-37).

The Alleged 1990 Agreement

The Plaintiff’s submissions

The Plaintiff relies on evidence of the Alleged 1990 Agreement to claim either by way of contract, constructive trust, or estoppel, that he is entitled the Punchbowl Property upon the Defendant’s death.
Specifically, the Plaintiff submits he entered into the Alleged 1990 Agreement with the Defendant and her husband/the Plaintiff’s father, to the effect the Plaintiff would receive the Punchbowl Property in return for him living and caring for them for the rest of their lives, paying $100/wk in rent, and, at the suggestion of the Plaintiff, paying them $200,000 when he received his compensation money (SOC [14]-[16]). The Plaintiff alleges he ultimately paid the Defendant an extra $2,000 through grace (T289/1-5).
As evidence of the Alleged 1990 Agreement, the Plaintiff notes first, the parties were not in the practice of recording agreements in writing, with the Plaintiff’s investment of $900,000 with his brother never reflected in writing, and the Plaintiff noting at T57/36 his Dad did not do things in writing (Plaintiff’s closing submissions [15]-[16]).
Next, the Plaintiff submits he had the funds to pay the Defendant $202,000, following his award of $1.4 million in the Federal Court Proceedings paid out from 2004. Further, the Plaintiff submits he paid the Defendant the $202,000 across 21 instalments between 10 May 2004 and 2 March 2005 (GW2 [6]).
Finally, the Plaintiff relies on the Police Statement of the Defendant’s daughter-in-law, Brigitte Wakim (Exhibit P1) where she recalls the Defendant telling her the Plaintiff would “put the papers on the house to say that he has given me $200,000 and everyone will lose shares in the house,” and the Defendant’s acceptance in cross-examination at T253/5-28. The Plaintiff relies on this, and in particular the mention of the $200,000, as evidence in favour of the Defendant knowing about the Alleged 1990 Agreement and accepting she had been paid the consideration (Plaintiff’s closing submissions [32]-[34]; T303/5-10). The Defendant also invites the Court to make a Jones v Dunkel inference for the failure of Brigitte Wakim to give evidence, since she was apparently in Court (Plaintiff’s closing submissions [34]).

The Defendant’s submissions

The Defendant denies ever making the Alleged 1990 Agreement or sharing a common intention with the Plaintiff, and ever receiving any monies from the Plaintiff in performance of any agreement.
The Defendant first draws attention to the fact the Alleged 1990 Agreement took place orally 27 years ago, with the Plaintiff being the only witness alleging it took place. There are no contemporaneous records, nor witnesses to corroborate his version of events. The Defendant submits the Plaintiff’s ability to recount the conversation in some detail, without there being any notes to support his recollection, speaks to the unlikelihood of the conversation ever taking place (Defendant’s closing submissions [17]-[19]).
Further, the Defendant submits the fact the Plaintiff did not have $200,000 at the time of the Alleged 1990 Agreement, and was not certain he would ever recover such money, also suggests the Alleged Agreement was never made (Defendant’s closing submissions [21]-[22]).
Additional factors the Defendant points to as evidence of there being no Alleged 1990 Agreement include the Plaintiff recording he was homeless in a 2010 application for housing assistance, the Defendant’s 2010 and 2012 wills leaving her estate to her children in equal shares, the 2012 caveat reflecting the Defendant was the only person with interest in the Punchbowl Property, and the Plaintiff’s failure to list his purported interest in the Punchbowl Property in his 2013 affidavit where he sets out his assets and liabilities (Defendant’s closing submissions [23]-[28]).
In respect of the statement of Brigitte Wakim, the Plaintiff submits that taking into account the circumstances, the evidence should be seen as a repetition of a representation by the Plaintiff to the Defendant, rather than an admission that funds had been paid by the Plaintiff to the Defendant as consideration in the Alleged 1990 Agreement (Defendant’s closing submissions [30]). Further, the Defendant submits a Jones v Dunkel inference should not be drawn as the document itself is the highest the matter can be taken (T320/31-49).

Relief sought

The Plaintiff’s submissions

By way of relief, the Plaintiff submits he is entitled to specific performance of the Alleged 1990 Agreement as his payment of $202,000 between 2004 and 2005 was part-performance of the Agreement (SOC, Prayers [1]). However, Counsel for the Plaintiff also notes in closing written submissions, while not a concession, it “might be difficult for the Court to conclude” the parties had any intention of entering into a contract, given the absence of any written document supporting the Plaintiff’s claim and the parties’ comparative inexperience in legal matters (Plaintiff’s closing submissions [40]).
In the alternative, the Plaintiff seeks an injunction restraining the Defendant from disposing of or encumbering the Punchbowl Property prior to her death, and a declaration that upon her death the Trustee of her estate will hold the Property on constructive trust in favour of the Plaintiff (SOC, Prayers [1]-[4]), reflecting a “common intention” between the parties that the Plaintiff would receive a beneficial interest in the Punchbowl Property pursuant to the Alleged 1990 Agreement.
In the further alternative, the Plaintiff submits the doctrine of estoppel is enlivened as the Plaintiff has relied on, and acted upon, the promises, representations or encouragement the Defendant and his father made him in 1990, and will suffer detriment should the Defendant abandon its position (Plaintiff’s supplementary opening submissions [26]-[27]; Plaintiff’s closing submissions [43]).
The Plaintiff submits the detriment he will suffer is “multi-factorial” and includes losing the right to live in and own the Punchbowl Property after the Defendant’s death, losing the benefit of the $202,000 he allegedly paid to the Defendant, and the detriment he has already suffered such as not purchasing a house of his own, caring for his father from 1990-1996 and the Defendant from 1990-2015, and not having a permanent relationship because the Defendant would not allow him to have one (Plaintiff’s supplementary opening submissions [43]; Plaintiff’s closing submissions [26]).

The Defendant’s submissions

The Defendant submits that by reason of there being no agreement or common intention between the parties as alleged by the Plaintiff, nor any payments made by the Plaintiff to the Defendant, the Defendant is not entitled to any relief, whether by way of contract, constructive trust, equitable compensation, or estoppel.
In relation to the contractual claim, the Defendant submits the Alleged 1990 Agreement is unenforceable by virtue of section 23C and 54A of the Conveyancing Act 1919 (NSW), the alleged part performance of the Plaintiff is not referable to some contract of the general nature of that alleged, and the Court cannot be satisfied it is unconscientious for the Defendant to rely upon the lack of writing of the alleged 1990 agreement.
In relation to the constructive trust claim, the Defendant submits there is no common intention expressed in oral agreement, nor inferred from the conduct of the parties, entitling the Defendant to a beneficial interest in the Punchbowl Property (Defendant’s closing submissions [18]-[20]). The Defendant relies on Shepherd in highlighting joint occupation and/or the carrying out of household duties do not alone amount to conduct inferring a common intention the legal interest in the property is subject to the beneficial interest of the claimant (Defendant’s closing submissions [19]).
In relation to the estoppel claim, the Defendant submits there has no clear and unequivocal representation, and the conduct of the Plaintiff he relies upon to assert conduct to his detriment cannot be ascribed to representations made by either the Defendant or his father, and do not sound in detriment but in benefit, given the Plaintiff’s circumstances (Defendant’s closing submissions [21]-[23]).

Property (Relationships) Act claim

The Plaintiff’s submissions

On one view of it, very little attention was paid to this claim, with the sole focus of the proceedings being on the question of the Alleged 1990 Agreement and those acts said to be consistent with that agreement. The Plaintiff did not address this claim in written submissions, and only briefly raised it in oral closing submissions.
By way of summary, as an alternative the Plaintiff submits it is entitled to an order under Part 3 of the PRA for an adjustment of the property interests in the Punchbowl Property to reflect the contribution he has made to the Defendant for care and maintenance (Plaintiff’s opening submissions [12]; T313/42-46). Without the Plaintiff’s care, he alleges the Defendant could not have continued to live in the house from 2000 because “she needed care if nothing else her prescriptions and medicines and going to and from doctors” (T315/10-14).
In terms of quantum, the Plaintiff says he should be entitled to either all or a percentage of the increase in the value of the Punchbowl Property, since he did not make a contribution to the purchase price of the Property (T313/16-20), and that the value should be as at 2000 since that was the date the Defendant conceded the Plaintiff became her carer (T227/36-38; T313/29-34).

The Defendant’s submissions

The Defendant submits a claim under the PRA should fail as the relationship between the Plaintiff and Defendant does not meet the definition of a “domestic relationship” under section 5 of the PRA (T3223-5; Defendant’s closing submissions [24]-[29]). The Defendant relies on Shepherd v Doolan [2005] NSWSC 42 in asserting mere joint occupation of a house is not sufficient to establish a relationship for the purposes of section 5.
The Defendant submits there is no evidence the Plaintiff did more than take the Defendant to her medical appointments and assisting with her pharmaceuticals (T322/4-45), pointing to the contributions made by the Defendant’s daughter and daughter-in-law (T322/46–T323/6), and the Defendant’s remarks in re-examination that the Plaintiff would make himself a coffee and leave the Defendant to clean it up (T324/1-9). The Defendant also notes she was in her early 50s when the Plaintiff moved in, and yet there was nothing in the Plaintiff’s evidence as to the level and change of care he provided her over the years (T324/11-15). Further, the Defendant states the Plaintiff stated in cross-examination he had to tell the Defendant he could no longer care for her in the same way since he was obliged to pay more attention to his litigation (T324/23-32).

Credit

Neither party made extensive submissions on credibility. In respect of the Defendant, the Plaintiff submits she was a “determined lady,” intent on telling her story to the Court. The Plaintiff also notes her apparent ability to understand and speak English despite having an interpreter, answering questions allegedly 29 times in English (T306/37-48).
The Plaintiff raised in closing submissions he no longer intended to rely on the evidence of Mr Ardino (T306/1-6).
In respect of the Plaintiff, the Defendant submits his narrative was “manifestly unreasonable” and self-serving (Defendant’s closing submissions [31]).

The evidence

The Plaintiff called a number of witnesses to give evidence, apart from himself. Mr Ardino his current solicitor gave evidence along with a Mr George Kanan, a pharmacist and Dr Brian Kurrle who has treated both the Plaintiff and the Defendant.
The Plaintiff read further affidavits of Dr Qureshi, Mr Jimmy Kana and Ms Joumana Rizko, but none of these witnesses were called. Mr Karatzas was ultimately not called, nor was his affidavit read.
Apart from the Defendant herself the Defendant’s son Emile Wakim and daughter Marie Kannan were called, along with her former daughter in law Mariette Wakim (formerly married to the Defendant’s son Moussa). Three affidavits of Mr Raed Rahal were also read but he was not called.

Overview of the evidence

Before I deal with each of the witnesses and their evidence I propose to record my general impressions.
In my view, the Plaintiff, notwithstanding being a serial litigator, was entirely unsatisfactory as a witness. He presented as evasive and non-responsive (see T47/4-T48/29), with a tendency of answering back (see T89/35-42).
He has a history of dishonesty, being sentenced on 17 September 1980 to 18 months’ imprisonment with six months non-parole for conspiracy to defraud, receiving a two year good behaviour bond on appeal (T47/5-42). My impression of the witness was that he carried this dishonesty with him into the witness box, making implausible statements such as he never gambled without The Defendant (T65/11-25), and unsupported denials in the face of contemporaneous records to the contrary (see T86/14-28).
His solicitor Mr Rocco Ardino was also, in my view, an entirely unsatisfactory witness. Although the Plaintiff invited me to no longer have regard to the evidence of Mr Ardino (T306/2-6), I should observe Mr Ardino placed himself in an invidious professional setting which seriously undermined his credibility as a witness, let alone a solicitor.
As a material witness called in support of the Plaintiff’s case in a particularly crucial respect, Mr Ardino showed little if any judgment in instructing Counsel whilst at the same time giving evidence. I have significant reservations about him as an accurate historian but worse his credibility is in my mind very much under a cloud. There is little doubt that from time to time he has acted for the Defendant again on matters material to this litigation. In light of this, the prudence of Mr Ardino participating in this case as instructing solicitor on behalf of the Plaintiff in proceedings against the Defendant and purporting to give relevant and material evidence in the same proceedings about the very issue at the core of them, is seriously questionable. To take instructions from the Plaintiff in order to prepare affidavits and preparing his own affidavits on similar topics in order to corroborate the Plaintiff’s case is somewhat disquieting.
The Defendant, although somewhat frail and with multiple health issues, is clearly a redoubtable and feisty woman. I am in no doubt she not only did her best to tell the truth but that her version of events does have, on critical aspects, significant corroboration. In my mind, she gave entirely plausible and consistent evidence as to the extent to which the Plaintiff actually assisted around the house over the years, particularly in relation to his so called financial contributions. Having observed her carefully whilst she gave her evidence and whilst there were inconsistencies from time to time her basic story is not only credible but very much supported by her banking records.
Those of her other children who gave evidence did so, I am satisfied, accurately and truthfully. They have assisted me to piece together, I believe, an accurate account of the Plaintiff’s behaviour not only towards the Defendant but towards other members of his family. In my view they made appropriate concessions when due but on balance they were each satisfactory.

Evidence of the Plaintiff

The Plaintiff swore a number of affidavits, 5 August 2015 (GW1), 25 August 2015 (GW2), 1 March 2016 (GW3) and 28 April 2017 (GW4).
In his affidavit of 5 August he sets out in the first person and verbatim what he said took place by way of conversation between himself and the Defendant and his father “on or about June 1990” (GW1 [8]).
The thrust of the conversation was to the effect that his father indicated to him that he and the Defendant had discussed the situation and would like the Plaintiff to come and live with them permanently to look after them and to assist them financially with various household expenses. The Plaintiff indicated he readily agreed to such a proposition including assisting his parents with housework. He also alleged that he informed his parents that he was expecting compensation monies and he was so grateful at them promising him ownership of the house to the exclusion of his siblings that he was prepared to promise to pay his parents $200,000 from his compensation monies.
The Plaintiff then asserted that he set about fulfilling that promise by providing domestic care and monies (GW1 [9], [11]).
The Plaintiff asserted however that this arrangement came to a somewhat abrupt end when the Defendant was discharged from hospital after a hip replacement. She indicated to the Plaintiff that she wanted to live with her other son Moussa and his wife (GW1 [10], [12]).
The Plaintiff asserted that shortly after receiving some settlement money in February 2004 ($1,045,115.20 net), he had a conversation with the Defendant in which he informed her that since he had just received those monies he would keep his end of the bargain and that he would pay the $200,000 (GW1 [16]).
The Plaintiff asserted he commenced giving the Defendant instalments of lump sums in varying amounts in cash which was at her request (GW1 [17]-[18]).
Further he asserted that upon making the last instalment the Defendant told him that he would be happy to know that she was going to make a new will in which he was the only person entitled to take the whole house upon her death (GW1 [19]).
In addition to the $200,000 the Plaintiff asserted he made financial contributions towards the payment of all outgoings including rates, insurance, upkeep and the like (GW1 [23]-[24]).
The Plaintiff also asserted that he ceased a number of relationships he had with females over time because of the Defendant’s extreme jealousy of his female partners (GW1 [23]).
In his affidavit of 25 August 2015 he gave greater detail with reference to his banking records as to what he had done with his settlement monies (GW2 [3]).
The Plaintiff asserted a further conversation with the Defendant in which they discussed the manner in which the instalments would be paid. He asserted that he told the Defendant that he could not withdraw more than $10,000 at a time. According to the Plaintiff the Defendant indicated she was happy with this arrangement (GW2 [4]).
On 11 May 2014 he asserted he commenced paying her instalments of $10,000 at a time except for the last two instalments which were of $6,000 each. All of the monies were paid to the Defendant, he asserted, in cash (GW2 [5]). The Plaintiff selected numerous dates and amounts from his Commonwealth bank account which he asserted he paid to the Defendant (GW2 [6]).

In his affidavit of 1 March 2016 which was in response to the Defendant’s affidavit of 18 November 2015, the Plaintiff set out numerous other disputes he had with his other brothers and sisters. He asserted that in 2001 he entered into a business venture which his younger brother Joseph and other members of the family to which he contributed some $900,000. He only received he asserted $387,000 back. These disputes were ongoing between 2004 and 2005 and the matters were ultimately not determined because he went bankrupt in 2013 (GW3 [6]).
The Plaintiff asserted that after the disputes with his younger brother about the advancement of the $900,000 other members of the family ceased to visit the family home (GW3 [11]).
The Plaintiff asserted that the 10 November 2012 will made by the Defendant was prepared and signed at the Kanan Pharmacy at Punchbowl. The Defendant was present along with Mr Jimmy Kanan and Joumana Rizko. The Plaintiff was also there (GW3 [11]).
Prior to taking the Defendant to the pharmacy, he asserted she showed him the will of 17 June 2010. When he saw it he was shocked because he realised he was not the sole beneficiary of the Punchbowl Property. As a result he had a substantial argument with the Defendant about it and accused her of misleading and deceiving him for years. He said he told the Defendant then that if she did not amend the will reflecting the agreement whereby he was to be named sole beneficiary he would take immediate legal action against her claiming damages. The Plaintiff said the Defendant refused to alter the will. She told him that she had made her mind up and that he should drive her up to the pharmacy to sort out the will otherwise she would start walking. The Plaintiff said he relented and decided to drive her. The Defendant told him that she wanted to remove Sayed as an executor and replace him with the Plaintiff instead (GW3 [11]).
The Plaintiff said that later that day he gave instructions to his solicitor Mr Ardino to commence proceedings against the Defendant for damages. Notwithstanding those instructions, along with alleged subsequent reminders, no steps were at the time taken to commence proceedings against the Defendant (GW3 [11]).
The Plaintiff asserted that on 5 November 2012 he took the Defendant to Mr Ardino’s offices in order to have a Power of Attorney in favour of his brother’s Emile and Sayed revoked. The Plaintiff asserted that he waited outside the office whilst Mr Ardino conferred with the Defendant. When they got home the Defendant showed him the documents which Mr Ardino had prepared and asked him to check them. The Plaintiff asserted that having checked the caveat Mr Ardino had put the Defendant as both the legal and equitable owner of the Property. The Plaintiff believed Mr Ardino had made an error (GW3 [20]).
The next day (6 November) he took the Defendant back to Mr Ardino’s offices to correct the caveat which had been drawn back. The Plaintiff asserted Mr Ardino was too busy to see them but he read the documents in his presence and then told the Defendant there was a real error which needed to be corrected but he would not be able to do it for a few days. Mr Ardino said that the Defendant would need to come back to see him. The Plaintiff asserted that is the last he heard of the caveat or correcting it (GW3 [20]).
The Plaintiff asserted he had been the full time carer for his father since 1990 until his death in 1996 and for the Defendant since 1990 until April 2015. He asserted he was granted a carers allowance by Centrelink on 31 July 2000 and continued to receive it until April 2015 when the Defendant had him removed from the Centrelink record (GW3 [30]).
In response to paragraph 38 of the Defendant’s affidavit, the Plaintiff referred to an amount comprising a cheque for $66,506.17. The Plaintiff asserted that that was his money which the Defendant held in trust for him (GW3 [35]). In his affidavit of 28 April 2017 the Plaintiff asserted that his father paid $15,600 for the Punchbowl Property in March 1971. The Plaintiff further asserted that a mortgage was obtained to complete the purchase which was discharged in about 1981. The Plaintiff further asserted that his father took out a further mortgage on 19 September 1984 with Westpac and it was discharged in February 1986 (GW3 [31]).
The Plaintiff also asserted that on 2 August 2007 he directed his then solicitors Paul Mee Ling to draw a cheque in the Defendant’s favour for $5,000, on 13 August 2008 for $1,500, and on 10 September 2008 for $2,000 (GW4 [21]).
In oral evidence in chief the Plaintiff said that after the 1990 conversation with his parents he took them to medical appointments, hospitals and did various chores around the house (T33/40-50).
After his father died the Plaintiff asserted that he cleaned the house, washed dishes, took the Defendant to the doctors, got her medication ready, and bought things for the house (T35/15-25).
The Plaintiff asserted he also cut the lawn, did whatever repairs needed around the house, took the rubbish out and did general maintenance (T35/30-39). As at 1990 the Plaintiff was unable to work because of his back injury (T35/44-49).
The Plaintiff took the Defendant from time to time to see both medical and non-medical professionals. She would see the orthopaedic surgeon every two, three or four months (T36/35-50).
He said he would arrange the Defendant’s medications and put them into a plastic container. He would arrange her medications for a week at a time (T38/35-50).
In 2015 the Plaintiff was also taking medication. Nothing he took, he said, made him drowsy because he had been taking similar medications since 1980 (T39/40-50).
After 2004 he said he would take the Defendant clubbing. He would take her to clubs, pubs and hotel clubs. When he took the Defendant out the Defendant gambled. She would walk around whichever club or pub that she happened to be in, sit on a chair and start putting $100 or $50 notes into machines. She specifically asked him not to tell family members what she was doing. They would leave home to go to the clubs at about 10.00pm or midnight and stay until closing time which was about 6 in the morning (T42/5-50).
Although the Defendant at the time was well into her 70s she would sit up all night until 6 in the morning according to the Plaintiff (T43/15-25).
The Plaintiff in cross-examination indicated he was, and had been for years, on various forms of medication including Panadeine Forte and at times Endone (T43/25-35).
The Plaintiff agreed that he had injured himself at Nader’s Petrol Station three days into the job. He made a workers compensation claim and a common law claim (T46/25-45).
The accident happened on 26 March 1980 (T47/1-3).
The Plaintiff agreed that in September 1980 he was sentenced to 18 months imprisonment with a non-parole period of six months for conspiracy to defraud. He said he successfully appealed to the Court of Criminal Appeal and received a two year good behaviour bond (T47/4-45).
When he got married he was unemployed. His wife had some money and she provided the funds for both of them (T51/20-35).
Although he sued Mr Nader as a result of the injury at the petrol station, Mr Nader went bankrupt. He received some dividends from time to time from the Nader bankrupt estate (T51/45-50).
When the Plaintiff separated from his wife he had no capacity to pay any rent (T52/10-15).
The Plaintiff denied he went home so that he could be looked after by his parents although he accepted that in 1990 he was not well enough to work (T52/20-50).
The Plaintiff agreed that his back injury has prevented him since 1980 from going back to employment (T53/10-20).
The Plaintiff asserted that he did receive $250,000 from the trustee of Nader’s bankrupt estate in 1991 but that was not the source of any money he gave to the Defendant (T54/15-25).
The Plaintiff could not pay the Defendant or his father the monies he got from the Mr Nader’s trustee’s estate because he needed that to fund other litigation (T55/5-10).
In 2007 the Plaintiff agreed that he commenced proceedings against Mr Anthony Tadros and his brother Joseph and his sister Maree and others in the family (T55/40-50).
The Plaintiff agreed that in the course of those proceedings he swore an affidavit dated 11 April 2013 (T56/9-11).
The Plaintiff agreed that between 1990 and 1996 when his father died he did not seek any form of acknowledgement in writing as to the promise he alleged his father made (T57/15-20).
The Plaintiff did not make any note of the conversation he had with his parents (T57/45-50).
The Plaintiff agreed that he did not write to his father and the Defendant setting out what had been agreed. When he had the conversation with them in June 1990 he spoke to them in both English and Arabic. He did so because the Defendant could understand English easier and because his father was not so good in English (T48/10-25).
The Plaintiff was asked whether he simply went through his bank statements to look for amounts that amounted to $202,000. He denied that. He agreed that he did not obtain a receipt from the Defendant or any acknowledgement because it was not necessary for him to do so (T61/10-25).
In his 2013 affidavit (dealing with assets and liabilities) he agreed he did not nominate the debt owed by the Defendant nor any interest in the property (T62/15-25).
It was put to the Plaintiff that in his 2013 affidavit he explained that having received his proceeds of $1,045.000 in early 2004 he gave $900,000 to his brother Joseph between 2004 and 2008 and of the remaining $145,000 he asserted he spent the balance on legal proceedings, and further that there was no mention of the $200,000 he said he paid the Defendant. It was further put to the Plaintiff that the assertion he had made about the contract with the Defendant and father was a recently contrived arrangement to recover money from them. He denied this (T63/5-20).
It was put to the Plaintiff that if he had an interest in the house that would have been set out in his affidavit of 2013. His answer was that he did not type it out, his solicitors did (T63/25-30).
The Plaintiff asserted that the pattern of payments to the Defendant in May and June 2004 was nothing special, it just happened to be whenever he was near a bank and so that it was merely random whenever he had the opportunity (T64/10-15).
When asked why he paid the Defendant three lots of $10,000 on 12 May, he said he could only draw $10,000 out at a time and the Defendant asked for that amount (T64/30-45).
The Plaintiff agreed that he did not make any notes on any piece of paper or even on bank statements that the monies in cash were being handed to the Defendant (T65/1-7).
The Plaintiff asserted that he never gambled at all whether it be poker machines, cards or races (T65/10-20).
The Plaintiff agreed that on 29 June 2010 he made an application for housing assistance. He was engaged at the time to the person who became his carer. They had been engaged since 2003 (T67/1-10). In the application for housing he indicated that conditions at home were unstable because of endless arguments (T67/20-25).
It was put the Plaintiff that he informed the Department that he had no interest in the Property he was living in (T67/40-50).
He had arguments with his parents about the women he associated with. His parents wanted him to marry a particular catholic, Australian/Lebanese girl (T72/45-50).
It was put the Plaintiff that he had made a number of complaints to the Police in 2005 which he could not recall (T73/40-50).
The Plaintiff agreed that in 2010 he was applying for housing and had he been accepted he would have moved out (T76/20-30).
In July 2012 he discovered the 2010 will and spoke to the Defendant. He then took her to see Mr Ardino (T76/40-50).
The Plaintiff asserted the Defendant wanted to revoke the Power of Attorney and remove his brother as executor and replace him (T77/20-25).
The Plaintiff asserted that when he discovered the Defendant had not stuck to the agreement about the house on the will he instructed Mr Ardino to commence proceedings against the Defendant (T78/15-25).
The Plaintiff had his attention drawn to the fact that although he asserted he told Mr Ardino in 2012 to commence proceedings against the Defendant he made no reference in his August 2013 affidavit to any liability on her part or to the Property (T79/20-35).
The Plaintiff agreed that he did not ask the Defendant for a document which would establish there was an agreement between them when she made her 2012 will (T82/10-20).
The Plaintiff agreed that he met Mr Karatzas in a pub and he only knew him through that association but he was prepared to assign all his assets to him (T83/40-50).
He met Mr Karatzas some years ago but he could not recall how many years (T84/25-30).
If Mr Karatzas had not agreed to the assignment, the Plaintiff had no one else to whom he could assign the cause of action (T85/5-15).
The Plaintiff did not recall an altercation at the hospital with staff in about September 2014 (T85/30-50).
The Plaintiff agreed that when the Defendant was in hospital he used her ATM card and took $200 out of her account for himself (T87/25-40).
The Plaintiff denied he discussed the contents of Dr Kurrle’s affidavit with him prior to him swearing it (T92/45-50).
The Plaintiff was asked whether when he met with Mr Ardino concerning the caveat and the alleged error. The Plaintiff denied that he ever spoke to Mr Ardino about the contents of the caveat and said he never in fact went in with the Defendant when she saw Mr Ardino (T105/35-50).
The Plaintiff was asked why did not simply go and get a bank cheque for the amount that he was providing to his brother. He said his brother wanted it all in cash he said (T108/1-7).
The Plaintiff agreed he could have drawn one bank cheque for $200,000 for the Defendant (T109/45-50).
On re-examination the Plaintiff indicated he was a priority creditor in relation to the Nader proceedings. He was entitled to a payment of $136,873.00 as a result (T113/42-48).

Evidence of Mr Rocco Ardino

Mr Ardino swore one affidavit in these proceedings of 28 April 2017 (RA).
Mr Ardino is a solicitor from Norton Street, Leichhardt, currently practising under supervision (T118/5-40).
Mr Ardino’s affidavit purported to respond to a number of matters in the Defendant’s affidavit of 18 November 2015.
Mr Ardino asserted the Defendant’s understanding of spoken English was reasonably good and that she was always able to make herself understood in English. Mr Ardino asserted the Plaintiff brought the Defendant to his Leichhardt office not to prepare a will. He had never received any instructions from her to prepare a will nor has he ever done so (RA [4]-[5]).
He was unaware of the Plaintiff and the Defendant going to a pharmacy to have documents witnessed (RA [7]).
On 5 November 2012 he recalled the Plaintiff bringing the Defendant to his office. During the course of the meeting she informed Mr Ardino she had lost confidence in her two sons Sayed Wakim and Emile Wakim. She was worried that one or other would sign a transfer and sell her home without her knowledge. Mr Ardino said he advised her to immediately revoke the Power of Attorney and prepared a notice of revocation. He also prepared a caveat to lodge against the title on the Punchbowl Property (RA [8]).
On 6 November 2012 Mr Ardino said the Defendant came back to his office and although he was unable to confer with her for any lengthy period she indicated to him that the caveat was wrong and said “the Property belongs to George when I die. We have an agreement about this.” Mr Ardino said he realised he had made an error in the caveat and advised the Defendant not to use the caveat in any way and that a new appointment should be made in a few days’ time. He accepted he had no further contact with the Defendant about any changes to the caveat (RA [9]).
Mr Ardino said that on or about 10 November 2012 he received a phone call from the Plaintiff indicating that the wanted to sue the Defendant. Due to heavy commitments, proceedings were not commenced however until 6 August 2015 (RA [11]).
Mr Ardino asserted he prepared an affidavit on behalf of the Defendant in relation to the Plaintiff’s Federal Court proceedings. Before the Defendant swore the affidavit Mr Ardino said he conferred with her at length in English and in the absence of the Plaintiff (RA [12]).
In cross-examination Mr Ardino agreed that he had been practising for in excess of 30 years since 1976 and principally did litigation (T118/23-35).
Mr Ardino agreed he originally acted for Mr Tadros in proceedings and then ultimately Mr Wakim. They were in the same interest he asserted (T122/15-40).
He then acted for Mr Wakim on his bankruptcy (T123/25-40).
Mr Ardino acted for Mr Wakim in other matters including a common law matter concerning a dog bite and action against the Police (T125/10-25).
He agreed he had also sworn a number of affidavits in the current proceedings (T125/25-30).
Mr Ardino also agreed that at the point where the Statement of Claim was issued he was acting for both Mr Wakim and Mr Karatzas (T128/25-35).
Mr Ardino agreed he swore an affidavit of 1 March 2016.
Mr Ardino agreed that when the Defendant came to him concerned about her two sons he thought a caveat might protect her against either of them exercising the Power of Attorney (T136/45-50).
Mr Ardino agreed that at this point he was acting for the Defendant in relation to the caveat (T137/35-40).
Mr Ardino could not be sure whether he prepared a diary note of his conference or meeting with the Defendant on 5 or 6 November 2012. Mr Ardino thought he would have a note but he had not looked for one (T138/35-50).
It was then drawn to Mr Ardino’s attention that his affidavit in the proceedings had a different version of what occurred when the Defendant and the Plaintiff returned on 6 November. In his 2016 affidavit he did not attribute any comments or remarks to the Defendant whereas he did in his affidavit before the court of 28 April 2017.
Mr Ardino described it as a difference of focus (T139/5-40).
Mr Ardino said that “they both made it clear” that there had been a previous agreement. It was put to him that if that were true he would have said so in his March 2016 affidavit. Mr Ardino said it was true (T140/15-30).
Mr Ardino agreed that his 2016 affidavit did not attribute any remarks to the Defendant and that would be because he must have forgotten that she did say something (T141/5-20).
In 2016 and 2017 he had made no attempt to try to find any contemporaneous diary note. For both affidavits he had to rely entirely on his recollection of events (T141/20-30).
Between November 2012 and June 2015 Mr Ardino did turn his mind to the possibility of conflict of interest but he did not know that there was any intimate knowledge that he had of any nature or of any actual conflict (T142/15-20).
Mr Ardino agreed that his 2016 affidavit was a more accurate account than his current 2017 account which he thought was possible (T143/1-10). Further, it was put to him any embellishment should be discounted insofar as there was any difference between the two versions and that the Court should prefer the earlier version to which he responded “Yes I have no objection to that”. He further said that he agreed the earlier account was likely to be more accurate (T143/10-25).
Mr Ardino’s knowledge of arrangement in the first instance came when he read Brigitte Wakim’s statement to the Police (T143/40-45).
By 10 November the Plaintiff was asking Mr Ardino to commence litigation against the Defendant. That raised a question about the existence of the agreement and at least gave an indication that there was potentially going to be a big argument about it (T146/25-40).

In my view however, accepting the Defendant said these words, taken literally the words need some massaging before they could amount to an admission. First, there is no reference to the Alleged 1990 Agreement, or any agreement of the sort, only an assertion allegedly made by the Plaintiff to the Defendant. Further, the Defendant was not stating the Plaintiff had paid the $200,000 and was entitled to the Punchbowl Property, but merely expressing her fear that he might make such a claim (as he has done in these proceedings). True it is that the reference to the $200,000 shows awareness on the Defendant’s part of at least part of the Alleged 1990 Agreement. However, against the backdrop of the Defendant’s denials of ever being paid the $200,000, and the absence of proof in my view any such payment was paid, I am not satisfied this statement rises any higher than a threat by him to commence proceedings over the Punchbowl Property based on the Alleged 1990 Agreement, and certainly can in no way be construed as an admission.
I also note I am not satisfied a Jones v Dunkel inference should be drawn by the failure of the Defendant to call Brigitte Wakim, even though she was apparently sitting in court (T251/1-10). It is true she may have been able to shed some light as to the different dates on her statement, but in relation to the critical aspect of her statement (being the words attributed to the Defendant), in my view she could not add anything further to what is already in the statement.
The only other piece of evidence which appeared to support the Plaintiff’s case were the remarks allegedly made by the Defendant to Mr Ardino regarding the caveat over the Punchbowl Property (RO [9]), but the Plaintiff requested in closing submissions the Court no longer have regard to these remarks (T306/2-6). In my view, there was little need for invitation on this point. In Mr Ardino’s affidavit of 1 March 2016 (D6) he asserted the Plaintiff asked him to check the schedule to the caveat as he was the equitable owner of the Punchbowl Property (at [7]). The Plaintiff denied saying those words to Mr Ardino (T105/33-44). Further, in his affidavit of 28 April 2017, Mr Ardino asserted the Defendant told him the caveat was wrong and the Punchbowl Property belonged to the Plaintiff when she died (at [9]).
Mr Ardino was confronted with this critical difference in his two affidavits in cross-examination, and it is no surprise he was prompted ultimately to agree that his 2016 account was more accurate (T143/5-10). Indeed he expressly conceded the earlier account where no statement was attributed to the Defendant on 6 November 2012 was more likely to be an accurate account of what occurred (T143/17-20). He also conceded he relied entirely upon his recollection of events for both his 2016 and 2017 affidavit, and further had made no attempt to locate any contemporaneous note of either attendance (T141/15-25).
On these grounds, I am not satisfied Mr Ardino’s evidence corroborates the Plaintiff’s case in any way, as accepted by the Plaintiff himself. In terms of documentary evidence, the Plaintiff is therefore left with Ms Wakim’s Police Statement which, as I have said, does not in my view assist the Plaintiff’s case in any real way, particularly in light of the complete void of other evidence going to the existence of the Alleged 1990 Agreement.

(C) The alleged $202,000 consideration

Evidence regarding the (i) source, (ii) payment, and (iii) receipt of the alleged $202,000 consideration further confirm, in my view, there was no Alleged 1990 Agreement, nor any part performance of this agreement.

(i) Source of the alleged $202,000 consideration

The Plaintiff’s choice of where and when he sourced the $202,000 consideration, and the monies he alleged he sourced the consideration from, raise serious questions about whether the payment was ever made.

(a) Monies around the time of the Alleged 1990 Agreement

First, on the evidence it is difficult to make sense of why the Plaintiff did not pay his parents the $200,000 consideration he allegedly promised them at an earlier date than some fourteen years after the Alleged 1990 Agreement. In closing written submissions, the Plaintiff asserts Mr Nader’s trustee in bankruptcy appeared to have paid the Plaintiff directly or on account a total of $277,878 by 1993, relying on the reconciliation of Mr Nader’s estate document dated 18 January 1993 (P3) (Plaintiff’s closing submissions [22]). The problems with this assertion are first, it assumes the Plaintiff was the priority creditor, secondly, the Plaintiff, while raising it in cross-examination (T54/49-T55/4), omitted to make reference to such monies in all four of his affidavits (T54/19-20), and thirdly, there are no banking records to support the Plaintiff being distributed all, or even some of those monies.
Even assuming the Plaintiff’s assertion he was the priority creditor (T285/5-10; T113/47-50) and was paid this sum is correct, then there is little reason for why he did not pay his parents the $200,000 consideration once he was paid those funds and while his father was still alive, with the Plaintiff simply stating he needed monies to continue in his litigation, and his parents were not pressing for the money (T55/6-10). In my view, the failure of the Plaintiff to pay his parents even just a small portion of the alleged consideration in first few years after the Alleged 1990 Agreement speaks to the unlikelihood of the Agreement ever taking place.

(b) The $1,045,000 compensation monies in February 2004

The Plaintiff claims he sourced the $202,000 consideration from the $1,045,000 he received in February 2004 as his net “compensation monies” from the Nader claim (Plaintiff’s further opening submissions [21]; GW1 [16]-[18]; GW2 [3]-[7]; T54/25-28; T61/43-45; T107/31-34). However, the Plaintiff’s own assertions and banking records do not corroborate this claim.
On 6 April 2004, $1,045,000 is deposited into the Plaintiff’s Westpac Account by way of trust cheque from his then solicitor, Paul Mee Ling. On 7 April and following there are numerous cash withdrawals upon those monies the largest of which is a withdrawal of $200,000 at the Haymarket Branch of Westpac on 16 April 2004 (T107/6-10). The Plaintiff indicated those monies were paid to his brother Joseph and others in respect of the failed business venture ultimately the subject of litigation (T106/21-50). The Westpac Account was closed on 30 April 2004 with a bank cheque being issued to the Plaintiff in the sum of $199,601.30. Together with some other monies, the amount of $207,747.70 was deposited into what was then his new ‘Cash Management Call Account’ at the Commonwealth Bank of Australia (CBA Account) on 30 April 2004 (GW2 [3]; GW2 Annexure K and L).
While it is clear the Plaintiff had “ample means” to pay the Defendant the $200,000 in 2004 (Plaintiff’s closing submissions [23]), it is also clear payment to the Defendant was not his priority.
The Plaintiff asserted in his Tadros Supreme Court Affidavit (D1) he gave $900,000 of the $1,045,000 to his brother Joseph for the proposed business venture, and spent the balance of the $145,000 on legal proceedings (D1 [7]; see also T107/21-24). On that basis alone, he would never have had a spare $200,000 or $202,000 to give anyone, most importantly the Defendant, in 2004 and 2005. Consistent with this, there is simply no mention in his Tadros Supreme Court Affidavit of him giving any of his compensation monies to the Defendant.
Thus, assuming for the moment the Plaintiff did pay the Defendant $202,000 as alleged, his own evidence from 2013 makes clear it could not have been sourced from the compensation monies in February 2004.

(c) The $387,000 in January 2005

There is evidence of $387,000 being paid into his CBA Account on 27 January 2005, which the Plaintiff asserted was payback from his brother Joseph for the $900,000 he invested (GW3 [6], [19]). However, the $387,000 appears to dissipate quickly, with $150,000 more or less paid straight out in two lots ($58,000 and $97,000). Indeed, according to the Plaintiff, he spent the whole of the $387,000 on “further litigation” against his brothers. The Plaintiff asserted this in a conversation he recounted between himself and the Defendant regarding the Defendant’s decision to appoint Emile and Sayed as her Powers of Attorney (GW [19]).

(d) The $8,500 in 2007 – 2008

The Plaintiff also asserts the Defendant was paid a total of $8,500 from the Plaintiff’s compensation monies (Plaintiff’s closing submissions [21]; GW2 [21] and Annexure D). There is evidence on the trust ledger of Paul Mee Ling Solicitors (PCB 212-215) of three amounts totalling $8,500 being debited to ‘Karime Wakim’ ($5,000 on 2 August 2007, $1,500 on 13 August 2008, and $2,000 on 10 September 2007). However, there are no banking records from the Defendant at that time to confirm receipt of such monies, the Defendant denies ever receiving these monies (T233/15-30), the Plaintiff gives no explanation as to why he gives these monies to the Defendant, and they are in any case not said to form part of the $202,000 consideration (GW2 [21]).
On the evidence, it is therefore entirely unclear where the Plaintiff could have sourced the $202,000 he allegedly paid the Defendant, bringing into question whether the payments were ever actually made.

(ii) Payment of the alleged $202,000 consideration

Not only is the source of the alleged $202,000 consideration perplexing, but so too is the alleged method of payment.
The Plaintiff nominated a selection of withdrawals (21 in total) from his CBA Account in May and June 2004 and February and March 2005, which he asserted were payments in cash to the Defendant, totalling $202,000 (GW2 [6]). The first issue with these nominated payments is how the Plaintiff was able to identify the payments as those made to the Defendant. The Plaintiff accepted he made no notes recording these withdrawals as payments to the Defendant (T64/48-T65/5). The Plaintiff also accepted the timing of the withdrawals was completely arbitrary: “Yeah, it was just random, whatever. Whenever I had an opportunity” (T64/12-15).
In my view it is remarkable to the point of incredible the Plaintiff could recall exactly what dates the payments were withdrawn, and identify exactly how much those payments were, some ten years on from making the payments without so much as a note or a method to trigger his memory. For example, there is no explanation for why and how the Plaintiff could recall a withdrawal of $6,000 on 7 March 2005 apparently had nothing to do with the Defendant but the two amounts of $6,000 withdrawn on 28 February and 2 March of the same year did. His ability precisely to recall the timing of such payments is also in noticeable contrast to his inability to recall other details of payments in his CBA Account at the time, for example where various credits came from in May and June 2004 (T110/30-T111/40).
Similarly, in my view the Plaintiff was unable sufficiently to explain why the funds were withdrawn in such increments. The Plaintiff accepted he could have given the Defendant a cheque for the $200,000 consideration at the time he began paying her instalments (T109/44-50), since he had $207,747.70 deposited into his CBA Account from his Westpac Account on 30 April 2004. However, the Plaintiff asserted he paid the Defendant in instalments as he wanted to keep some funds for himself (T110/9-14), and the Defendant agreed to this (GW2 [4]).
Even if the Plaintiff did in fact want to conserve some funds, this does not explain why the Plaintiff withdrew several instalments allegedly for the Defendant on a single day, instead of a single withdrawal. For example, on 12 May 2017, the Plaintiff alleged the three lots of $10,000 he withdrew were for the Defendant, despite the Defendant apparently requesting the $30,000 in one payment (T64/27-30). Similarly on 21 May 2004, the Plaintiff withdrew two lots of $10,000, allegedly to pay the Defendant, rather than withdrawing a single amount of $20,000.
The Plaintiff’s explanation for these multiple withdrawals on a single day is, again, difficult to comprehend. The Plaintiff alleged he was concerned he would be reported if he withdrew more than $10,000 (T64/24-35). In my view, this explanation, viewed against his banking records, cannot be accepted. On 16 April 2004 (only a few weeks before first allegedly paying the Defendant) the Plaintiff appeared to have no concerns or difficulties withdrawing and paying his brother $200,000 in cash (T107/4-35). Further, on 12 May, the very day he allegedly withdrew the first lots of $10,000 for the Defendant, his bank records also appear to show a cash withdrawal, by arrangement, of $100,000.
Further unexplained anomalies in the alleged payments include the gap between payment in June 2004 and February 2005, and why the final withdrawals were two lots of $6,000, when there was only $10,000 left for the Plaintiff to pay. He gives no explanation as to why he could not have simply withdrawn the two amounts of $5,000 each, or a further $10,000, to comprise the total of $200,000. He also gives no evidence to support Counsel for the Plaintiff’s claim he paid the extra $2,000 out of “grace” (T289/1-5).

(iii) Receipt of the alleged $202,000 consideration

The absence of evidence going to the Defendant’s receipt of the alleged $202,000 consideration further speaks to the unlikelihood of the Plaintiff ever making such a payment.
First, the Defendant’s bank statements show no deposits of any of the cash amounts the Plaintiff asserts he gave her, consistent with her claims she never received any money from the Plaintiff (KW [37]; T232/4-6).
There are two notably sizeable deposits in her Pinnacle Credit Union account (DCB 41-47) that require some attention, but not because they can in anyway be attributed to the Plaintiff as payments of the $202,000 consideration. First there is the $66,501.35 which plainly came into the Defendant’s account by reason of 11 cheques totalling $38,525.40 deposited on 15 April 2004, and a further 8 cheques totalling $27,975.95 deposited on 19 April 2004. Several weeks later on 10 May 2004 a cheque is then drawn for $66,506.17. An analysis of the Defendant’s bank statement suggests the cheque was first drawn to ‘Joe Wakim J R Investments’ but presumably this was in favour of the wrong payee as it was redeposited into the account and redrawn on the same day but payable to ‘J & R Investments.’
According to the Plaintiff, the $66,506.17 was being held on trust by the Defendant for him (GW3 [35]). The Defendant also acknowledged the $66,506.17 had been given to her by the Plaintiff to deposit into her account and be held on trust for him at [5] in her affidavit dated 15 June 2011 sworn in the 2007 Tadros Federal Court Proceedings, annexed to her only affidavit in these proceedings (DCB 33-36). Both affidavits were notably prepared on instructions by Mr Ardino. And yet the Plaintiff, on instructions, chose to put to the Defendant in cross-examination the two amounts totalling $66,506.17 comprised her winnings on poker machines (T235/22-25; T237/12-22). In the light of the evidence filed in the case that was not only an absurd proposition but frankly quite disgraceful. This is not the place at which to dwell on the conduct of either the Plaintiff or more importantly that of Mr Ardino. However the point is that if these were proceeds of gambling - as was put quite precisely to the Defendant - they were the Plaintiff’s proceeds of gambling; given both parties on the evidence accept the money was initially the Plaintiff’s. Further, it should be noted even these monies were not paid to the Defendant as part of the allegedly promised $200,000 consideration, but paid on via the Defendant’s bank account to the Plaintiff’s brother and his business associates.
The only other amount of substance apparent from the Defendant’s bank account is the deposit of a cheque of $50,000 into her account on 14 December 2004. Prior to the deposit of that amount, and being paid her pension that same day, the Defendant was $3.14 in credit. The Plaintiff attempted to put to the Defendant that somehow the cheque for $50,000 was part of the $202,000 allegedly given to the Defendant in cash, and further that she or someone at her direction had converted the cash into a cheque and paid it into her account (T242/10-T246/20). That proposition was simply not established at least by anything said by the Defendant in her evidence, nor indeed the Plaintiff.
The Defendant did say that at some point the Plaintiff and his brother Joseph had a discussion which led to her receiving at least on one view of her evidence $50,000, which she did not want (T238/36-40). Certainly on the Plaintiff’s case he never once gave the Defendant $50,000 in one go. Nor did he ever give the Defendant a cheque. All the monies he gave to her he said were in cash. In any event the cheque for $50,000 was paid into her account on 14 December 2004. However, by 23 February 2005 a substantial portion of it (some $32,749) had gone, with a cheque payable to a Mr “Tony Trados” (presumably Mr Tadros) for $11,250 on 11 January 2005, and $21,499 payable to the Plaintiff on 23 February 2005. Thus, given the unknown source of the $50,000 and where most of the funds ended up, there is no basis for asserting the $50,000 deposited in the Defendant’s account was somehow attributable to the Plaintiff as part of his alleged consideration.
In the absence of any bank records reflecting deposits by the Defendant of the Plaintiff’s alleged payments of the $202,000 consideration, the only other possibility is that the Defendant somehow stored this cash herself. The Plaintiff claimed following payment of his first instalment of $10,000 cash he saw the Defendant take it into her bedroom and close the door (GW2 [5]), and Counsel for the Plaintiff invited me to infer in closing oral submissions there was a “safety deposit box” where the money may have gone (T278/25-27). No proposition of the kind was ever put to the Defendant, nor was this issue explored in cross-examination at all, nor elaborated upon by the Plaintiff. Given the amount of cash that was allegedly being handled (such as $30,000 in one day), one would expect some details on the factual context as to the precise circumstances of how and where this cash was exchanged or stored.
The following exchange took place between Counsel for the Defendant and the Plaintiff in cross-examination at T61/16-20:

Q. Mr Wakim, did you simply go through your bank statements and look for amounts that amounted to $202,000 and say these are the amounts I gave to my mother?
A. No. It was not necessary because I ‑ what appeared here is what I gave her.

In my view, in light of the above-mentioned inconsistencies, the proposition put to the Plaintiff is correct. I am satisfied based on the absence of any credible money trail corroborating the Plaintiff’s alleged payment of $202,000 and the Defendant’s receipt of the funds, coupled with the Plaintiff’s inexplicable and inconsistent assertions about the source and payment of the $202,000, the Plaintiff’s evidence regarding the alleged payment of $202,000 to the Defendant is a construct.

(D) Plaintiff’s contributions beyond the alleged $202,000 consideration

Finally, I am satisfied the Plaintiff did no more than assist the Defendant in ways and means one would expect from an adult son living with his elderly mother. In my view, the evidence going to the Plaintiff’s (and others) contributions at the Punchbowl Property fortify my view the Alleged 1990 Agreement never took place, and even if it did, the Plaintiff never performed his side of the bargain in terms of making contributions in addition to the alleged $202,000 consideration.
First, it is clear the Defendant was being cared for by a number of family members and friends, as well as the Plaintiff. The Plaintiff asserted he received a Carer’s Allowance from Centrelink from 31 July 2000 to April 2015, but “[d]uring this time, my mother also had various full time carers who were receiving the full Centrelink Carer’s payments” (GW3 [30]). It is clear these people include a Ms Janice Smith, who looked after the Defendant “on a full time basis” from 2008 to 2010 while she was the Plaintiff’s fiancé (GW3 [7]), and the Defendant’s granddaughter Karime who the Plaintiff also referred to as the Defendant’s “full time carer” when she was discharged from the hospital in 2015 (GW1 [12]). Further, from 1991 to 1995, the Defendant’s son (Moussa) and daughter in law (Mariette) were also living in the house with the Plaintiff, the Defendant, and their late father. Even after they moved, Mariette Wakim alleged, and I accept, she continued to return to the Punchbowl Property to assist with cleaning, cooking and washing (MW [20]), and claimed the care has since been shared between herself, her daughter, the Defendant’s two daughters, and Sayed Wakim’s wife (MW [21]).

I do accept the Plaintiff provided some care to the Defendant, particularly in taking her to medical appointments (AQ [7]) and organising her medication (T191/28-31). However, first, it is clear that at least some of these trips were also for his benefit. The Plaintiff would also have his scripts filled at the pharmacist, Mr Kanan (T39/24-30; T168/4-16; GK [6]), was also a patient of Dr Brian Kurrle (BK [4]) and had to regularly attend Yagoona Medical Centre as a patient like the Defendant (GW4 [27](iii)). Secondly, it is also clear the Plaintiff did not exclusively take care of the Defendant’s medical appointments, with numerous other family members giving evidence of taking her to the doctors and the hospital (T185/24-27; T187/29-31; T194/47-50; T228/10-20). Thirdly, while Mr Kanan said the Plaintiff would pay for the Defendant’s medication (GK [5]), he produced no records to corroborate how much was in fact paid, and there was no evidence as to whose money the Plaintiff was using.
Similarly, while I accept the Plaintiff may have occasionally taken the Defendant “clubbing” so they could gamble (T42/1-10), in my view it is most likely such trips were for the Plaintiff’s own benefit. The Plaintiff asserted he would sit by the Defendant for six to eight hours while she gambled (T43/5-10). The Plaintiff gave the following details in examination in chief at T42/26-20:

Q. When you say, "gambled" would you tell the Court what that means, or what you saw her do?
A. I saw her sort of walked around whichever club or pub I had happened to take her to, or she wanted to go to, and she walked around, selected whichever machine she wanted to use, sat on a chair, and started putting, I think, $100 notes, or $50 notes into it and started playing.
Q. On average how often did you take your mother clubbing of to the club and to the pub between 2004 and 2015?
A. Well at most times every day, but sorry, but not let me correct that. Not a day, every day but in this instance, it was at night. She would never leave home, she would never leave home or would not ask me to take her out until between ten to about 12 at night, because she didn't she asked me, she doesn't she specifically said, "I don't want the family members to see us going out at this hour".
A. I saw her sort of walked around whichever club or pub I had happened to take her to, or she wanted to go to, and she walked around, selected whichever machine she wanted to use, sat on a chair, and started putting, I think, $100 notes, or $50 notes into it and started playing.

These details were never put to the Defendant, although she did agree in cross-examination she was gambling on poker machines in April 2004, but qualified this by saying she was only gambling with $20.00 (T235/15-21).
While I accept the Defendant therefore may have participated in the gambling on occasions, in my view the Plaintiff’s assertion he observed the Defendant for hours on end is implausible. Indeed, the Plaintiff, when asked by the Court whether he also participated in the gambling, responded “I was – more about gambling together” (T43/22-25). The Plaintiff later attempted to clarify this, stating “No, no, so what I meant was when I said that, I said I take mum and we'll both be sitting together, and we would both be spending time, you know” and asserting he never gambled without the Defendant (T65/11-25). Again, no witness was called to corroborate the Plaintiff on this. In my view, the evidence clearly suggests otherwise. The unexplained deposits of thousands of dollars into his account (T110/40-47; T111/1-35), the withdrawals of significant sums at locations such as the Lidcombe Catholic Club and the Punchbowl Hotel, and the Defendant’s assertion the Plaintiff “had a gambling problem” (KW [29]) lead to a strong inference that while the Plaintiff may have accompanied the Defendant to the poker machines, this was to meet his own needs as opposed to hers.
Further, assuming the Plaintiff’s disability pension is genuine, it is, in my view, highly improbable the Plaintiff not only agreed to but also provided physical assistance around the house. According to the Plaintiff, as part of the Alleged 1990 Agreement the Defendant requested and the Plaintiff agreed to “doing the housework and the house maintenance and repairs wherever necessary as well as the gardening and the shopping” (GW1 [8]). And yet the Plaintiff accepted in cross-examination (T35/40-43) and stated in sworn evidence (GW1 [7]) he was so injured from his 1980 work injury that he could not work a day since then. So much is evident from his affidavits, where his occupation is recorded as “Disability Pensioner” on all four of them.
Indeed, the Defendant asserted it was she who had “always looked after” the Plaintiff (KW [37]), and “he was just making himself a coffee, he drink it and I will do the cooking, cleaning and washing for him” (T268/34-38). This is consistent with the Plaintiff’s sworn evidence “I returned home because I became anaemic as I was not eating properly and was deeply involved with my bankruptcy litigation” (GW4 [14]). In addition to physical limitations, it is also difficult to conceive how the Plaintiff had time to provide care which “consumed almost about 20 hours of my time every day” (T35/16-23), in light of the Plaintiff’s continuous run of court proceedings and medical appointments.
In addition, there is no direct evidence to support the Plaintiff’s claim he paid $100 per week in rent to the Defendant, as conceded by Counsel for the Plaintiff (T316/29-31). There is a Centrelink Rent Certificate issued 11 February 2009 (PCB 156-159) prepared by the Plaintiff and signed by the Defendant on 23 February 2009, declaring the Plaintiff paid $100 per week for board and lodging. However, there are no bank statements reflecting this regular payment, nor any evidence from the Plaintiff as to how, when, and with what funds the $100 was paid. The Defendant also denied ever receiving the payments, asserting “He never give me anything” (T263/10-25). In this context, I am satisfied the Centrelink Rent Certificate can be viewed as no more than a repetition of the Plaintiff’s claim he was paying $100 per week on rent, falling well short of evidence of any such contribution actually being made. Without any objective contemporaneous material corroborating the Plaintiff’s assertion he paid rent, the more likely inference to be drawn is that in fact no such contribution was made.
There is also no evidence of other financial contributions the Plaintiff claimed he provided (GW1 [23]-[24]; GW2 [7]). For example, the Plaintiff claims by way of ‘Particulars of Contributions’ (PCB 30-33), his care included purchasing groceries and other household items, paying regularly monies from the Plaintiff’s pension to support household expenditure, and paying rates and insurance in respect of the Punchbowl Property. And yet the Plaintiff is unable to provide a single receipt as proof of expenditure on behalf of the Defendant. Mariette Wakim claimed her and her husband paid the majority of grocery bills while living with the Defendant and the late Mr Wakim from 1991 to 1995 (MW [10]), and never saw the Plaintiff pay for anything (T182/14-17). The Defendant made similar claims (KW [37]).
In fact, on the evidence the situation appears to be the inverse, with the Plaintiff accepting at least on the occasion he used the Defendant’s money for his own benefit. For example, in cross-examination, after initially telling the Court he used the Defendant’s ATM card while she was in hospital “only when she needed something herself” (T87/1-3), the Plaintiff later added he took $200 because “I needed some for myself” (T87/30-34). Further, he conceded he was not in fact paying all the bills as “my pension can only be stretched so much…” (T87/22-25). The evidence from the Defence tells a different story, with the Defendant asserting the Plaintiff took her pension money “for many years”, and the family members recalling numerous and distinct occasions of when the Plaintiff was requesting money both from them and the Defendant (see MW [18]-[19]; [23]; [29]; EW [19]; [23]; MK [21]).
Further, on the evidence it appears the Plaintiff was not only, at least on the occasion, using the Defendant’s money, but was also using the Defendant’s Pinnacle Credit Union account from time to time to deposit and withdraw funds. The Plaintiff concedes this (GW3 [32]), agreeing to the Defendant’s statement “At times he used my bank account to deposit his money and to withdraw it” (KW [35]). The $66,506.17 held on trust for the Plaintiff in the Defendant’s account is a prime example of this. Upon further examination of the Defendant’s banking records I am also satisfied it is likely the Plaintiff used her account for other purposes on other occasions.
For example there is a deposit on 20 December 2004 of $2,057.10 comprising two cheques. It seems to me on the basis at least of the cross-examination by the Plaintiff’s Counsel on the earlier amounts making up the $66,506.17 (T235/22-25; T237/12-22) the two cheques are likely to be attributable to receipts from gambling undertaken by the Plaintiff. Further there is a deposit of $1,500 on 4 January 2005 comprising of one cheque, which, on the evidence the Plaintiff is likely to be responsible for. The Plaintiff stated he would withdraw monies from the monies he deposited to pay for all things the Defendant needed (GW3 [32]).
There is certainly evidence of significant cash withdrawals, for example, $5,000 on 17 December 2004, $1,800 on 20 December 2004, $1,000 on 29 December 2004, $1,000 on 21 and 25 January 2005, $5,000 and $1,000 on 31 January 2005. There is no reason to suppose the Defendant was responsible for such withdrawals rather than the Plaintiff, especially given the Plaintiff’s evidence he would use the Defendant’s bank account. However, there is also no evidence to support the Plaintiff’s contention he used such withdrawals to pay for the Defendant’s needs (see [425] above). On these grounds, in my view the most likely inference is the Plaintiff was operating the Defendant’s account virtually at will, freely taking monies from her account for his personal use, even if they were monies he initially deposited.
Viewed as a whole, I am further satisfied that in addition to not making any payment of $202,000, the Plaintiff did not offer any notable assistance to the Defendant that went beyond any care his siblings were providing, and beyond the care one would expect a son to provide his elderly mother. In my view, this confirms there was never any Alleged 1990 Agreement or arrangement to a similar effect obliging the Plaintiff to provide additional care to the Defendant and the late Mr Wakim.

Conclusion on the evidence

In my view, there is no real evidence, beyond the Plaintiff’s own account, that the Alleged 1990 Agreement was ever reached, and the Plaintiff performed his obligations under that Agreement. On the evidence, the Plaintiff’s account must be seen as a construct.
I am satisfied the context surrounding the 1990 conversation, the documents that followed, the details of the alleged $202,000 payment and the lack of details regarding the Plaintiff’s care for the Defendant make clear the 1990 conversation and similar conversations that followed (GW1 [16], [19]; GW2 [4], [5], [9], [16]; GW3 [21], [31]; GW4 [18]) never took place, the Alleged 1990 Agreement was never made, and the Plaintiff never performed any obligations, including the payment of $202,000 consideration, pursuant to such an agreement.

Legal consideration

Standing

As I have found there was no Alleged 1990 Agreement and the Plaintiff did not pay the Defendant the $200,000 consideration, there is strictly no need to consider the question of standing.
This is notwithstanding Pembroke J‘s interlocutory findings on 25 November 2016 that the Plaintiff’s payment of $200,000 “represented the proceeds of a compensation payment that he had received for personal injuries” and therefore was not divisible property under the Bankruptcy Act pursuant to section 116(2)(n) and 116(3). It is clear these findings were on a prima facie basis, subject to the evidence being tested. It appears little, if any, evidence, submissions and analysis went to proving the Plaintiff’s assertion the $200,000 was protected monies, with Pembroke J noting in the proceedings before him “the argument and submissions were directed to the application and construction of the Bankruptcy Act and their effect on the constitution of the proceedings.”
With the benefit of financial records, affidavits, sworn testimony and cross-examination, I am satisfied there was no consideration paid, and thus no money to determine whether it was protected or not under the Bankruptcy Act.
However, if I am wrong and the Plaintiff did pay the Defendant the alleged $200,000 or $202,000 consideration, on the face of the evidence, as I found, the money did not appear to come from protected monies as defined under the Bankruptcy Act. Therefore the cause of action would have been vested in the official trustee in bankruptcy pursuant to section 58 of the Bankruptcy Act, and the proceedings should not have commenced.
In my view, the Plaintiff’s assertion the Plaintiff was not bankrupt at the commencement of the proceedings as the Statement of Claim was filed on 10 March 2017 is erroneous. The Plaintiff relied on UCPR reg. 19, which I presume to mean reg. 19.2(4) which provides:

If a person is added as a party under this rule, the date of commencement of the proceedings in relation to that person is taken to be the date on which the amended document is filed.

I am not satisfied this regulation has any application in these proceedings. First, there has been no amendment of a Statement of Claim. As set out in the Procedural History, these proceedings were commenced by way of summons by the Plaintiff on 6 August 2015, and simply continued by way of Statement of Claim on 10 March 2017. Relevantly, in both pleadings the Plaintiff is recorded as a party to the proceedings (with Mr Karatzas added as a party in the Statement of Claim). Thus, on this point alone, the Plaintiff does not qualify as a person “added as a party” under reg. 19.
Further, in my view, the policy behind reg. 19.2(4) intended it only to apply to parties de novo. As explained by Handley JA in Hamilton v Merck and Co Inc; Hutchinson v Merck Sharp and Dohme (Australia) Pty Ltd (2006) 66 NSWLR 48 at [153]:

153 As a general rule amendments to a statement of claim take effect from the date of commencement of proceedings: Baldry v Jackson [1976] 2 NSWLR 415, although a court can order that they take effect at a later date: Middleton v O’Neill (1943) 43 SR (NSW) 178. There is an exception in the case of amendments which add new parties because, under UCPR Pt 19 r 19.2(4), proceedings in relation to such persons are commenced on the date the amended document is filed. Where the application to add additional parties is filed close to the expiration of a limitation period the delay before the amendment has been allowed, and the amended statement of claim filed, could cause hardship and injustice.

The Plaintiff, while temporarily (from 25 October 2016 – 25 November 2016) not a party to the proceedings, cannot on any view be considered a “new” party come the 10 March 2017 Statement of Claim. The Plaintiff was the relevant party who commenced proceedings almost 18 months prior to the Statement of Claim, and thus faced no risk of hardship and injustice by virtue of being reinstated in the proceedings on 25 November 2016.
In my view, it is therefore clear reg. 19 has no application to the Plaintiff in these proceedings, and cannot be relied upon to support his standing in these proceedings. However as I have said, given my findings on the Alleged 1990 Agreement, these observations are purely academic.

Claim for specific performance, constructive trust or estoppel

Given my findings on the evidence, I am satisfied the Plaintiff has no grounds for a claim premised on there being either an enforceable oral contract where the Plaintiff would receive the Punchbowl Property following the death of his parents, a common intention to grant a proprietary interest in that land, or conduct creating an assumption such a proprietary interest would be granted. Further, even if there was such an agreement, common intention or conduct, I am not satisfied the Plaintiff has made any contributions, financial or otherwise, pursuant to, or in reliance of, any sort of agreement, intention or assumption alleged.

Claim under the Property (Relationships) Act

I am also not satisfied that in the alternative, an adjustment of property would be just and equitable under the PRA to reflect the contributions provided by the Defendant. While there may have been a domestic relationship as the term is understood under the Property (Relationships) Act, as I have found, the Plaintiff’s allegations of the contributions he made to the Punchbowl Property and to the Defendant were grossly exaggerated (see [416]-[430] above). Over and above bare assertion, there was no evidence as to the Plaintiff’s expenditure, nor any explanation for how the Plaintiff was capable of doing any housework of any substance and regularly with his debilitating work injury. Further, in my view there would be no adjustment that would entitle him to a provision of the estate over and above what he is set to inherit under the 2012 will, being a share in the Punchbowl Property equal with this siblings.
On these grounds, in my view is no evidence to justify an adjustment in the Plaintiff’s interests in the Punchbowl Property on a just and equitable basis.

Conclusion

For the above reasons, I am satisfied the Plaintiff’s claim should fail on all grounds. In my view, there was no Alleged 1990 Agreement, nor common intention or conduct of a similar effect, entitling the Plaintiff to the Punchbowl Property upon the death of the Defendant and the late Mr Wakim, provided he performed his obligations under that agreement. Further, in my view the Plaintiff did not make any contributions, including payment of the alleged $202,000 or $200,000 consideration, which would entitle him to the Punchbowl Property had any Alleged 1990 Agreement been reached. Similarly, the lack of evidence supporting contributions the Plaintiff alleged he made to the Defendant and Punchbowl Property satisfies me that even if no Alleged 1990 Agreement existed, the Plaintiff should not be entitled to an adjustment in the value of the Punchbowl Property under the PRA.
In light of my reasons, I invite the parties to prepare short minutes and, if the need arises, to be heard on the question of costs.

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Decision last updated: 22 September 2017

Medium Neutral Citation:	Elias George Wakim v Karime Wakim [2017] NSWSC 1283
Hearing dates:	29, 30, 31 August, 1 and 5 September 2017
Decision date:	22 September 2017
Jurisdiction:	Equity
Before:	Sackar J
Decision:	See [445]
Catchwords:	CONTRACTS — Formation — Intention to create legal relations ESTOPPEL — Proprietary estoppel — Estoppel by encouragement FAMILY LAW — Adjustments under Property (Relationships) Act 1984 (NSW) CIVIL PROCEDURE — Standing of bankrupt
Legislation Cited:	Bankruptcy Act 1996 (Cth) Property (Relationships) Act 1984 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Cmr of Taxation (Cth) [1983] 1 NSWLR 1 Ashton v Pratt [2015] NSWCA 12 Baumgartner v Baumgartner (1987) 164 CLR 137 Browne v Dunn (1893) 6 R 67 Cox v Journeaux (No 2) (1935) 52 CLR 713 Moss v Eaglestone (2011) 83 NSWLR 476 Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 Daniel Behman v Tarek Behman [2015] NSWSC 1787 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Fox v Percy (2003) 214 CLR 118 Giumelli v Giumelli (1999) 196 CLR 101 Hamilton v Merck and Co Inc; Hutchinson v Merck Sharp and Dohme (Australia) Pty Ltd (2006) 66 NSWLR 48 Hayes v Marquis (2008) NSWCA 10 John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Milling v Hardie [2014] NSWCA 163 Muschinski v Dodds (1985) 160 CLR 583 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 Riches v Hogben [1985] 2 Qd R 292 Sharpless v McKibbin [2007] NSWSC 1498 Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42 Sion v NSW Trustee & Guardian [2013] NSWCA 337 Svenson v Payne (1945) 71 CLR 531 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315 Willmott v Barber (1880) 15 Ch D 96
Category:	Principal judgment
Parties:	Elias George Wakim (Plaintiff) Karime Wakim (Defendant)
Representation:	Counsel: Gregory George (Plaintiff) Charles Robinson (Defendant) Solicitors: Margiotta Solicitors & Attorneys (Plaintiff) Cambridge Law (Defendant)
File Number(s):	2015/229975
Publication restriction:	n/a