Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick

[2018] NSWSC 692

Supreme Court

New South Wales

Medium Neutral Citation:	Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692
Hearing dates:	11, 12, 13 April, 16 April 2018 (oral subs)
Decision date:	18 May 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See paras [492]-[501]
Catchwords:	EQUITY – equitable estoppel – proprietary estoppel – where promisor made representations to give property to promisee – whether promisee acted to detriment in reliance on representations – whether wills in favour of Defendant overcame representations – conduct of Defendant
Legislation Cited:	n/a
Cases Cited:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Browne v Dunn (1893) 6 R 67 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Paino v Paino [2006] NSWSC 218 Paino v Paino [2008] NSWCA 276 Riches v Hogben [1985] 2 Qd R 292 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Category:	Principal judgment
Parties:	Lorena Zupicic (Plaintiff) Angela La Camera Paino (as executor of the deceased estate of Mario Novick)
Representation:	Counsel: D Palmer (Plaintiff) A Maroya (Defendant)   Solicitors: Bundock Law (Plaintiff) Photios Vouroudis & Co (Defendant)
File Number(s):	2018/50935

Judgment

Proceedings

Background facts

Legal principles

Equitable estoppel

Intention to enter in legal binding relations

The rule in Browne v Dunn

Parties’ submissions

Plaintiff

Equitable estoppel

Breach of contract

Further considerations

Defendant

Equitable estoppel

Breach of contract

Further considerations

Evidence

Evidence of Ms Lorena Zupicic

Evidence of Edi Zupicic

Evidence of Mr John Aarons

Evidence of Giovanna Moretti

Evidence of Christiane Whitham-Taudien

Evidence of Dr Trachtenberg

Evidence of Mr Eidan Havas

Evidence of Ms Angela La Camera Paino

Consideration

Mr Novick

The Defendant

Defendant’s credit: an overview

Relationship between Defendant and Mr Novick

Defendant’s conduct concerning Mr Novick’s money

Defendant’s control over Mr Novick

Were the promises made?

Did the Plaintiff act to her detriment?

Conclusion

Judgment

Proceedings

1. In these proceedings the Plaintiff contends that in the period 1998 to 2015, Mario Novick her second cousin represented and promised to her that upon his death he would leave all of his estate, including the apartment at Unit 7/10 Barncleuth Square Potts Point NSW, to her as his sole beneficiary (Plaintiff’s Points of Claim dated 9 March 2018 [1]). The primary relief sought is said to arise from equitable estoppel and constructive trust, with an alternative claim made in breach of contract.

2. The alleged representations and promises said to have been made to the Plaintiff were made allegedly in return for the services, work, care and attention she had provided to him. The Plaintiff alleges there was reliance and detriment (Points of Claim [2]-[4]).

3. The Defendant, who on Mr Novick’s death became the registered proprietor of the Potts Point apartment and received moneys from Mr Novick, denies any estoppel or contract claim and generally denies relief to the Plaintiff.

Background facts

4. Where I refer in this judgment to persons by their surnames or otherwise, I intend no disrespect.

5. Mr Novick was born on 21 November 1927 in Italy.

6. He moved from Italy to Australia in 1947. In Australia he worked in various semi-skilled jobs including at Johnson & Johnson in Sydney until approximately 1994 when he retired.

7. In 1994, Mr Novick purchased the apartment in Potts Point. At approximately this time, he encouraged the Plaintiff to emigrate from Croatia to Australia. He was then approximately 67 years old and the Plaintiff was approximately 25 years old.

8. The Plaintiff was born in Croatia and moved to Australia in 1994. She married her husband Edi Zupicic shortly afterwards (Mr Zupicic had also moved from Croatia and had been living in Australia since 1985).

9. When the Plaintiff arrived in Australia in 1994, she had one family contact Mr Novick. Her involvement with Mr Novick and his family was a long one. The Plaintiff had lived with Mr Novick’s mother for a period when she was about five years old.

10. In 1994, the Plaintiff began work as a waitress and cashier on a part-time basis at Dee Why RSL, where she still works to this date.

11. In addition the Plaintiff states that in 1995 she began visiting Mr Novick at his apartment in Potts Point weekly (travelling from the Northern Beaches of Sydney). She would take cooked meals, fruit and groceries and other domestic items to him. Her husband would also do maintenance work on the Potts Point apartment (Plaintiff’s First Affidavit [20]-[21], [30], [40]).

12. From 1994 to 2016, it appears that Mr Novick and the Plaintiff had a close family relationship. Although the precise extent of this relationship is contested, it appears on one view (Plaintiff’s First Affidavit [17]-[19], [27]; Mr Zupicic’s First Affidavit [14]):

1. Mr Novick would stay at the Plaintiff’s home in the Northern Beaches of Sydney for Christmas and Easter for a number of days.

2. Mr Novick would often visit the Plaintiff’s home on weekends on a weekly or fortnightly basis to spend time with her family.

3. Mr Novick and the Plaintiff enjoyed each other’s company and Mr Novick liked having frequent contact with her family, such as talking with Mr Zupicic and babysitting or playing games with her two sons when they were young.

4. The Plaintiff would take Mr Novick to his doctor’s appointments in Potts Point, or specialists in Chatswood and Darlinghurst.

13. On 5 March 1997, the Plaintiff and her brother Elido Gobo purchased property in Croatia from Mr Novick for an amount of $4000 (Exhibit P1). Whether Mr Novick received this amount from the Plaintiff is, on one view, contested.

14. In 1998, the Plaintiff asserts Mr Novick requested more assistance from her in washing his clothes, cleaning, doing the shopping and errands. She alleges Mr Novick then stated (Plaintiff’s First Affidavit [21]):

I want to repay you and your family for all the work you have done for me and the work you are going to do for me in the future. Instead of me paying you, I am just going to leave you everything I have in my Will.

15. From 1998 to 2016, the Plaintiff alleges Mr Novick made similar representations to her repeatedly on average every three to four months (Plaintiff’s Second Affidavit [4]-[5]). He would allegedly say:

Lorena you have been wonderful to me and I know you will be looking after me for some time. I want to repay you for all of your effort by leaving you everything I have in my Will.

16. In response to these representations, the Plaintiff asserts on her understanding and expectation that she was to receive the whole of Mr Novick’s estate. She applied countless days of her life and spent money giving and providing help and services to Mr Novick (Plaintiff’s Third Affidavit [6]-[8]).

17. In October 1998, Mr Novick had hip-replacement surgery, and the Plaintiff states she assisted him daily for four weeks in his recovery. This involved activities such as cleaning, cooking, shopping and washing clothes (Plaintiff’s First Affidavit [31]).

18. In 5 April 2006, the Defendant was awarded an amount of $2,046,575.90 in separate and unrelated proceedings in relation to her then de facto relationship with Salvatore Paino (Paino v Paino [2006] NSWSC 218).

19. In 2007, Mr Aarons moved into an apartment three doors along from Mr Novick’s apartment in Potts Point (Mr Aarons’ Affidavit [1]). He became friends with Mr Novick.

20. On 29 October 2008, the Defendant successfully appealed the award of $2,046,575.90 provided to her in Paino v Paino [2006] NSWSC 218 as incorrectly failing to accept the expert evidence of the value of properties owned by Salvatore Paino on the island of Filicudi off the coast of Sicily (Paino v Paino [2008] NSWCA 276).

21. At Christmas of 2009 the Defendant alleges she first met Mr Novick when she invited her friend Giovanna Moretti and her partner Hasan to come to her home for Christmas lunch. When Ms Moretti said she was running late as they were visiting an elderly friend Mr Novick, the Defendant invited Mr Novick to join them for Christmas lunch with Ms Moretti and Hasan (Defendant’s First Affidavit [6]). However on the evidence of Ms Moretti and the Plaintiff the Defendant first met Mr Novick in August 2013 (Plaintiff’s First Affidavit [42]; Ms Moretti Affidavit [12]).

22. From 2010 to 2016, the Plaintiff alleges she would also pay yearly for Mr Novick’s car registration, insurance and fuel. Her husband would fix and maintain the car (Plaintiff’s First Affidavit [25]).

23. In 2010, Mr Novick developed a heart condition which required frequent visits to doctors. The Plaintiff asserts she continued to collect him and drive him to each of his appointments from 2010 until his death (Plaintiff’s First Affidavit [34]).

24. On 19 January 2011, in unrelated proceedings, the Defendant lodged a caveat (AG12258P) on a property in McLachlan Avenue Darlinghurst NSW (Exhibit P3, 101-2). The registered proprietor of this property was listed as Luigi Tancredi. The caveat was issued by virtue of an alleged equitable interest pursuant to a partnership agreement between the Defendant and Mr Tancredi as of 9 July 2009. The caveat was lodged by Coopers Law Firm, Double Bay.

25. On 1 June 2011, Mark Kennedy of Anderson & Sjoquist Lawyers prepared a will for execution by Mr Novick. This will would have appointed the Plaintiff as the executor and trustee of Mr Novick’s estate and provided the whole of his estate to her absolutely (Exhibit P4). This will was sent to Mr Novick but no evidence is available that this will was ever signed or executed.

26. In 2012, the Plaintiff alleges Mr Novick said (Plaintiff’s First Affidavit [35]-[36]; Plaintiff’s Third Affidavit [4]):

You work so hard and you always come and help me. You feed me, clean my clothes and clean my house. Why don’t I sell this apartment and give you the money from the sale and I can move into your house at Mona Vale. That way you would not have to work so hard and travel so much.

I have given you everything in my Will because you are the one who is helping me and you are the closest member of my family.

27. On 5 April 2013, in unrelated proceedings, the Defendant lodged a further caveat (AH663491Y) on the property in McLachlan Avenue Darlinghurst NSW (Exhibit P3, 103-4). The interest alleged was beneficial ownership of the property on trust, by virtue that the Defendant alleged the registered proprietor (Mr Tancredi) used funds belonging to her to purchase the property.

28. In August 2013, the Plaintiff and her husband travelled overseas for a four week holiday. They arranged for Giovanna Moretti (a good friend of Mr Novick) to look after him. However, it appears she fell sick and arranged for the Defendant to assist with his care (Plaintiff’s First Affidavit [42]). The relationship between Mr Novick and the Defendant evidently strengthened.

29. On 27 March 2014, in unrelated proceedings, the Court ordered by consent that Mr Tancredi held the property in McLachlan Avenue Darlinghurst NSW on trust for the Defendant (that is, Ms Paino) (Exhibit P3, 106). Mr Tancredi also undertook to make no claim against the Defendant in relation to an amount of jewellery.

30. In May 2014, Mr Zupicic is asserted to have renovated the Defendant’s kitchen at a cost of approximately $11,000 on materials and fittings (Mr Zupicic’s First Affidavit [28]). I note, however, the Plaintiff’s first affidavit at paragraph 24 alleges kitchen renovations occurred in May 2015.

31. On 9 May 2014, Mr Tancredi transferred the property in McLachlan Avenue Darlinghurst NSW to the Defendant for nil consideration (Exhibit P3, 105).

32. In 14 August 2014, Mr Novick gave the Defendant an Enduring Power of Attorney (Exhibit ALCP1 Tab 7).

33. On 6 June 2014, Mr Novick made a will appointing the Defendant as sole executor and beneficiary drafted by Rhodes Associates solicitors. Jeremy Charles George Rhodes and Angela La Camera Paino were the executors and trustees (the June 2014 will) (Exhibit P3, 49-52). On or about 24 August 2014, Mr Novick made a will which provided, subject to any testamentary, estate or succession duties or otherwise, that the entirety of his estate would go to the Defendant (the August 2014 will). This will provided for Eidan Havas and Deborah Searle as executors and trustees (Exhibit P3, 53-56).

34. On 27 August 2014, the Defendant entered into a mortgage over the property in McLachlan Avenue Darlinghurst NSW, with the mortgagee listed as ANZ Bank (Exhibit P3, 107-8).

35. In 2015, the Plaintiff alleges Mr Novick said (Plaintiff’s First Affidavit [22]):

Lorena I have made sure you will be repaid for all your help, my Will says that you get all of my Estate. Don’t worry you will get everything.

36. In February 2015, Mr Zupicic is asserted to have installed an air conditioning unit in Mr Novick’s apartment at a cost of approximately $2,000 (Plaintiff’s First Affidavit [24]).

37. In 28 July 2015, Mr Novick entered into a reverse mortgage with Commonwealth Bank of Australia (an Equity Unlock Loan for Seniors) with an opening balance available for drawdown of $213,950 (Exhibit P2, 7-20). On 30 July 2015, Mr Novick made a statutory declaration witnessed by Mr Havas in relation to this loan, noting he had received independent legal advice in relation to the reverse mortgage (Exhibit P3, 48; Exhibit P2, 25). In cross-examination, Mr Havas stated he had advised Mr Novick in writing not to take out the loan or reverse mortgage because he believed it was imprudent (including his belief the interest rate was exorbitant) (T154/6-49).

38. On 30 July 2015, Mr Novick wrote a note to the Defendant, stating (Exhibit D1):

Dear Angela,

Please accept this gift as a token of my appreciation for all your devotion & care of me you are an angel.

Love Mario

39. On 5 August 2015, Mr Novick transferred an amount of $50,000 to the Defendant’s account with ANZ Bank (Exhibit D2). This corresponds to a drawdown of $50,000 from Mr Novick’s reverse mortgage loan on that date (Exhibit P2, 56).

40. On 12 August 2015, Mr Novick transferred a further amount of $50,000 to the Defendant’s account with ANZ Bank (Exhibit D2). This corresponds to a drawdown of $55,000 from Mr Novick’s reverse mortgage loan on that date (Exhibit P2, 56).

41. I should note Exhibit P2 pages 56-70 expose a number of further substantial transactions involving drawdowns from Mr Novick’s reverse mortgage loan.

42. The Defendant has accepted she would make withdrawals from Mr Novick’s reverse mortgage loan, and that for example she had access to his personal banking card and PIN (T193/37-41).

43. In approximately October 2015, the Defendant moved into Mr Novick’s apartment in Potts Point (Defendant’s First Affidavit [69]). The Defendant appears to have taken a role in caring for the Defendant, evidenced for example in a note compiled by the Defendant to Catholic Care Services which she arranged for Mr Novick (Exhibit ALCP1 Tab 4):

PLEASE:

- DO NOT ANSWER THE PHONE UNLESS ASKED BY MARIO

- DO NOT ASK FOR MUSIC UNLESS HE WISHES TO HAVE IT ON HIMSELF

- DO NOT OFFER TO COOK FOR HIM

- DO NOT RUSH TO DO YOUR WORK as food cleaning requires time

- DO NOT SIT DOWN TO HOLD LONG CONVERSATIONS WITH HIM

- DO NOT ASK HIM PERSONAL QUESTIONS

44. On 18 November 2015, Mr Novick allegedly composed a note and an accompanying four page statement to the solicitor Mr Havas (Exhibit D7). This note recorded Mr Novick’s apparent dissatisfaction with the care offered to him by the Plaintiff and Mr Zupicic. It also recorded the following other observations (with all spelling or grammatical errors reproduced):

I only went back to visit my mother in 1973 when I met Lorena my second cousin for the first time when she was 5 years old. She was living in my house with parents (rent free). After she married Edi Zupicic, they came to Australia (about 22 years ago.

Over this time I would spend Xmas with them and visit them occasionally … after Lorena & her brothr asked me to sell them a peace of land in Croatia we agred to pay me 2500$ each her brother pay me immediatly buth Lorena only gave me $1500 after all this years.

…

I started to look at them [the Zupicic family] in a differend way and feeling very upset an I could not trusted them especially when I found out that they had open my safe to look for the deed for my home and my will as I did not made the will shortly after I received by post a will prepeared by they solicitor with the letter asked me to sign leaving everything to Lorena; I was estremely upsed & tored up [sic].

45. From approximately August 2016 until his death, the Plaintiff alleges that Mr Novick’s health deteriorated requiring frequent hospitalisation. The Plaintiff asserts that when Mr Novick was in hospital she would visit him on multiple occasions each week (Plaintiff’s First Affidavit [49]-[50]).

46. On 10 August 2016, the Defendant sold the property at McLachlan Avenue Darlinghurst NSW to a third party for a consideration of $740,000 (Exhibit P3, 109).

47. On 10 November 2016, the Defendant entered into a contract for the purchase of a property in Morton Street, Parramatta for the price of $580,000 and a deposit of $58,000. The Defendant provided an address of Unit 7/10 Barncleuth Square Potts Point NSW (Exhibit P5).

48. In April 2017, a number of withdrawals were made from Mr Novick’s reverse mortgage loan including for example $1,500 on 24 April 2017 and $3,000 on 27 April 2017 (Exhibit P2, 65).

49. On 24 April 2017, Mr Novick wrote a letter to the Defendant, a part of which is translated from Italian (ALCP1 Tab 2):

My Dear My Dearest Angela

Happy Birthday & Many Happy Returns

In Italian: You have been the most beautiful thing which ever came in my life my love for you is eternal & growing stronger & stronger

A warm hug

Mario Novick

50. Between 12 April 2017 and 2 May 2017 Mr Novick was in St Vincents hospital with pneumonia (Exhibit ALCP1 Tab 6).

51. During May 2017, further withdrawals were made from Mr Novick’s reverse mortgage loan including for $2,500 on 3 May 2017, $1,000 on 6 May 2017, $2,000 on 8 May 2017, $2,000 on 9 May 2017, $2,000 on 10 May 2017 and $2,000 on 18 May 2017 (Exhibit P2, 65).

52. On 25 May 2017, Mr Novick made a further will providing the entirety of his estate to the Defendant. In this will, the Defendant was also listed as executor and trustee (the 2017 will) (Exhibit P3, 86-8). This will was prepared with the assistance of Mr Vouroudis (who did not give evidence) who made a file note on 25 May 2017 at 11:00am (Exhibit P3, 57-61) of his meeting with Mr Novick, the Defendant and a Maria Sanfilippo. This note recorded, amongst other observations:

1. The Defendant appears to have introduced Mr Novick to Mr Vouroudis, as the note records “Angela said to Mario that he should speak to me to get the best advice”.

2. Mr Vouroudis met Mr Novick in a café, apparently as Mr Novick was unable to ascend the stairs to the office.

3. Mr Vouroudis noted “Mario appeared very lucid and willing to speak to me.”

4. Mario then purportedly set out his life details, including being born in 21 November 1927 in Italy, moving to Australia in 1947 where he first worked in South Australia and working at a power station and at a turbine station. He then moved to Sydney where he worked in a Pyrmont power station and spent five years in Tasmania in an aluminium plant. He moved back to Sydney, working for a British motor company for 2 years and then got a job with Johnson & Johnson as a mechanic for 27 years before retiring in 1992.

1. Mr Novick apparently told Mr Vouroudis the only asset he had was his unit valued at $500,000. He alleged he had borrowed $220,000 from Commonwealth Bank to pay for levies on the unit when a lift was installed two years ago. No mention was made of a gift to the Defendant of $105,000 or substantial sums of money spent on refurbishment of the unit as Mr Novick said the things in his house “have no value whatsoever”.

2. Mr Novick asserted the Defendant had saved his life when he was sick in 2011. Mr Vouroudis noted Mr Novick said “I would have died if she did not take me home to look after me”. Mr Novick alleged the Defendant was excellent in caring for him and doing things such as housework.

53. There is no mention in Mr Vouroudis’ note of his knowledge of the two prior 2014 wills or when he prepared the May 2017 will. However it seems on 25 May 2017 a will was executed.

54. Seemingly on 27 May 2017, the Defendant recorded a conversation between Mr Novick and Mr Zupicic at paragraph 137 of her first affidavit (also recorded at Exhibit D6). This conversation included the statements:

Edi:   Ok, listen if you don’t want us to see you but that’s not very nice because Lorena has been with you all her life. I mean she comes there and all of a sudden you tell her not to come, that’s not nice. I don’t care Mario, but Lorena and if you make the decision and tell her not to come you are going to break her heart, don’t you think?

Mario:   Oh boy! Edi, Edi I am not well I will call you when I feel better, until I feel better I don’t want anybody to come and visit me.

…

Edi:   You know, as I said to you, I don’t care but you should say or you should have some respect to Lorena because Lorena has been with you a long time. Every time she did a lot of things with … She always had you for Christmas and Easter. Every time she comes to see you she brings you something. You can’t tell her now, Lorena fuck off, I don’t want to see you now! Because that’s not nice that’s not you is it? Mario that’s how it is, isn’t it?

Mario:   I get along with everybody but I don’t know what’s happening now.

55. On 29 May 2017 Mr Novick was admitted to St Vincents hospital with pneumonia. He was discharged on 15 June 2017 (Exhibit ALCP1 Tab 6).

56. In June 2017, further large withdrawals were made from Mr Novick’s reverse mortgage loan including $2,600 on 1 June 2017, $2,000 on 5 June 2017 and $3,000 on 6 June 2017. A further $2,000 was withdrawn from an ATM in the Star Hotel on 6 June 2017 (Exhibit P2, 66).

57. On 1 July 2017, $1,000 was withdrawn from Mr Novick’s reverse mortgage loan at The Star Pyrmont (Exhibit P2, 67).

58. On 6 July 2017, a further $2,300 was withdrawn. On 16 July 2017, $2,000 was withdrawn and on 17 July 2018, $10,000 and $2,000 was withdrawn (Exhibit P2, 67).

59. On 18 July 2017, the Defendant prepared a note, which Mr Novick appears to have signed below (Exhibit D3):

[In apparently the Defendant’s handwriting]

I Mario Novick have asked Angela Paino to write this note after I spoke to my lawyer to make sure it will be confirmed in writing that she has always had my authority to use all of my money for whatever purpose, including her personal needs.

Yours sincerely,

[Below in apparently Mr Novick’s handwriting]

Yours sincerely,

M Novick

60. Later that day, the Defendant took a screenshot image of the note and sent it to the solicitor Frank Vouroudis at 12.49pm (Exhibit D4). Mr Vouroudis gave no evidence before the court as to his involvement in the matter.

61. On 18 July 2017, Mr Novick died (POC [6]).

62. On 20 July 2017, $2,000 was withdrawn from Mr Novick’s reverse mortgage loan. On 21 July 2017 a further $2,000 was withdrawn (Exhibit P2, 67).

63. On 4 October 2017, probate was granted on the 2017 will (Exhibit P3, 85).

64. On 27 January 2018, the Defendant invested an amount of $232,704.33 with ANZ Bank in a term deposit (Exhibit P6).

65. On 16 February 2018, the Defendant entered into a contract for the sale of the Potts Point apartment for consideration of $660,000, with a completion date being marked as 70 days after the contract date (Exhibit P3, 4).

66. On 19 February 2018, Slattery J made orders, including orders placing restraints on the Defendant’s dealing with the Potts Point apartment.

Legal principles

Equitable estoppel

67. The general nature of constructive trusts and equitable estoppel was set out by Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101 at 111-2; [1999] HCA 10 as follows (citations omitted):

In submissions to this Court, the term “constructive trust” was used to identify the nature of the equitable remedy granted by the Full Court. Care is required in the use of the term “constructive” in this context. Professor Scott has pointed out:

“It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court ‘constructs a trust’. The expression is, of course, absurd. The word ‘constructive’ is derived from the verb ‘construe’, not from the verb ‘construct’ ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them.”

The relief granted by the Full Court involved a trust that was “constructive” in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent's equity by bringing about a subdivision of the promised lot and conveying the title to it.

The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the promised lot, to convey it to the respondent.

A constructive trust of this nature is a remedial response to the claim to equitable intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the property in question, thereby bringing about a determination of the rights and titles of the parties.

68. Importantly for the purposes of this case, their Honours noted (at 113-4) (citations omitted):

The present case fell within the category identified by the Privy Council in Plimmer v Mayor, &c, of Wellington where “the Court must look at the circumstances in each case to decide in what way the equity can be satisfied”. Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust. At the heart of this appeal is the question whether the relief granted by the Full Court was appropriate and whether sufficient weight was given by the Full Court to the various factors to be taken into account, including the impact upon relevant third parties, in determining the nature and quantum of the equitable relief to be granted.

69. In Giumelli v Giumelli (1999) 196 CLR 101 at 121; [1999] HCA 10, their Honours also observed with approval McPherson J’s analysis 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.

70. See also generally Muschinski v Dodds (1985) 160 CLR 583 at 614-20; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137 at 146-8; [1987] HCA 59.

71. In Sidhu v Van Dyke (2014) 251 CLR 505 at 511; [2014] HCA 19, French CJ, Kiefel, Bell and Keane JJ observed (citations omitted):

In The Commonwealth v Verwayen, Mason CJ described estoppel as “a label which covers a complex array of rules spanning various categories”. His Honour went on to say of “titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence” that they are all “intended to serve the same fundamental purpose, namely ‘protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted’”.

In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn and Ramsden v Dyson is now a “well recognised variety of estoppel as understood in equity”, which affords relief “found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff”. The questions which arise in this appeal concern the sufficiency of proof of detrimental reliance required to give rise to a sound claim for relief based on that category of estoppel; and the appropriate measure of equitable compensation where an order for the transfer of the property in question to the plaintiff is not made for reasons of hardship to a third party.

72. Further in Sidhu v Van Dyke (2014) 251 CLR 505 at 521-4; [2014] HCA 19 their Honours also made it clear that there is no relationship that establishes a presumption of reliance (citations omitted):

The respondent sought to neutralise the appellant’s first submission by arguing that, in this case, the Court of Appeal did no more than apply what Brooking JA described in Flinn v Flinn as a “commonsense and rebuttable presumption of fact that may arise from the natural tendency of a promise”. This argument must be rejected. The observations by Brooking JA in Flinn v Flinn do not support the proposition accepted by Barrett JA that “[w]here inducement by the promise may be inferred from the claimant’s conduct … the onus or burden of proof shifts to the defendant to establish that the claimant did not rely on the promise”.

In Newbon v City Mutual Life Assurance Society Ltd, Rich, Dixon and Evatt JJ, speaking of a case where the party setting up the estoppel asserted a failure to take action in reliance upon an assumption allegedly induced by the conduct of the defendant, said:

“Where inaction is the natural consequence of the assumption, the prima facie inference may be drawn in favour of the causal connection … Any general presumptive connection between inaction and a belief in a state of facts must depend upon probabilities which arise from the common course of affairs, and accordingly must be governed by circumstances.”

In Gould v Vaggelas, Wilson J, with whom Gibbs and Dawson JJ agreed, speaking of an action in deceit, said:

“If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.”

It is apparent that in the passage cited from the plurality judgment in Newbon v City Mutual Life Assurance Society Ltd, their Honours were speaking of a “presumptive connection” as the equivalent of the “fair inference” of which Wilson J spoke.

In Gould v Vaggelas, Brennan J said:

“An inference of inducement may be drawn when a party enters into a contract after a material representation has been made to him, but it is no more than an inference of fact and it is settled law that such an inference may be rebutted by the facts of the case.”

Nothing in the judgments in Gould v Vaggelas suggests that the onus of proof in relation to detrimental reliance shifts to the defendant in any circumstances.

…

In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that:

“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.”

…

Be that as it may, this aspect of the appellant’s submission must be accepted. The approach suggested by Lord Denning should not be applied in Australia. The legal burden of proof borne by a plaintiff did not shift. To speak of a shifting onus of proof is both wrong in principle and contrary to authority. The respondent at all times bore the legal burden of proving that she had been induced to rely upon the appellant’s promises.

…

The real question was as to the appropriate inference to be drawn from the whole of the evidence, including the answers elicited from the respondent in the course of cross-examination. In that regard, as was said by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Ltd, consideration of the application of the process of reasoning adumbrated by Wilson J in Gould v Vaggelas “must always attend closely to all of the evidence that is adduced that bears upon the question being examined”.

73. Their Honours also noted (at 526-8):

Her Honour’s finding that the appellant’s promises “played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property” warranted the conclusion that the respondent had discharged the onus she bore on the basis that to establish estoppel by encouragement it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. Counsel for the appellant disputed this proposition but did not cite any authority in support of their position. The respondent’s position is amply supported by authority.

…

This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created. The extent to which it is unconscionable of the appellant to seek to resile from the position expressed in his assurances to the respondent may be gauged by reflecting on the likely response of the respondent if the appellant had told her in January 1998: “I am happy for you to remain at Oaks Cottage, but only for so long as it suits me and my wife to have you here; and, while you remain on the property, you must care for it as if you were the owner of the property and do unpaid work on parts of Burra Station other than the property. Until I make the property over to you, you must pay rent sufficient to content my wife. Should you choose to leave, you will leave with nothing in return for the value of your work here.”

74. With respect to the nature of relief granted by equitable estoppel, in Sidhu v Van Dyke 251 CLR 505 at 529; [2014] HCA 19, their Honours said (citations omitted):

In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant’s change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced.

The requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief. In The

Commonwealth v Verwayen, Deane J noted that:

“There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party.”

75. In the same case Gageler J observed (at 531) (citations omitted):

Paraphrasing Dixon J in Thompson v Palmer, the respondent bore the onus of establishing that she believed the appellant’s representations and that, on the faith of that belief, she took a course of action or inaction which would turn out to be to her detriment were the appellant to be permitted to depart from those representations. The respondent did not need to establish that the belief to which she was induced by the appellant’s representations was the sole or predominant cause of the course of action or inaction she took but, in the language of Rich, Dixon and Evatt JJ in Newbon v City Mutual Life Assurance Society Ltd, she did need to establish that the belief was a “contributing cause”.

To establish that the belief to which she was induced by the appellant’s representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief.

The need for the respondent to establish such a difference stems from what Dixon J described in Grundt v Great Boulder Pty Gold Mines Ltd as the “indispensable” condition that a party asserting an estoppel “must have so acted or abstained from acting upon the footing of the state of affairs assumed” that the party asserting the estoppel “would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption”. That is to say, “the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted”. There can be no real detriment if the party asserting the estoppel would have been in the same position in any event.

The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: “Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?”

Intention to enter in legal binding relations

76. The question of whether parties intended to enter into legally binding relations is to be determined objectively, taking into account the totality of the evidence including the state of affairs between the parties. The High Court elaborated on the appropriate test in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105-6 (Gaudron, McHugh, Hayne and Callinan JJ); [2002] HCA 8 (citations omitted):

“It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.” To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts”.

Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.

77. These principles were reiterated by the High Court unanimously in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); [2004] HCA 52 (citations omitted):

References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

78. In determining the existence of an agreement, it is further permissible to take into account the parties’ post-contractual conduct; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [23]-[27] and [85] per Heydon JA (as his Honour then was).

The rule in Browne v Dunn

79. The rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) provides if a party intends to assert a witness’ evidence ought not to be accepted, counsel for that party must put to the witness the basis on which their evidence will be challenged. As noted by McHugh JA in Levinge v Director of Custodial Services, Departmentof Corrective Services (1987) 9 NSWLR 546 at 560:

The rule in Browne v Dunn (1893) 6 R 67 at 76-77 prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination.

80. The rule in Browne v Dunn, being a rule of fairness, is of course not absolute. As Lord Herschell noted in Browne v Dunn at 71:

… Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

81. These views were echoed by Tobias and McColl JJA in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112]:

There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. In the present case there is no such body of evidence.

82. Provided the Court does not palpably misuse the evidence or makes findings inconsistent with facts incontrovertibly established on the evidence, it is a matter for the Court to determine whether it accepts unchallenged evidence: see generally State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3. A failure to cross-examine will naturally influence this determination. The failure to cross-examination limits the findings I am willing to make.

Parties’ submissions

Plaintiff

83. The Plaintiff’s primary ground of relief is based upon equitable estoppel and constructive trust (Outline of Submission [2]).

84. The Plaintiff’s secondary ground of relief is based upon breach of contract (Outline of Submissions [3]).

Equitable estoppel

85. The relief sought is based upon the assertion that from 1998 to 2015 Mr Novick made regular representations and promises to the Plaintiff to the effect that he would leave all of his assets when he died to her (Outline of Submissions [6]). The Plaintiff asserts in response to these representations and promises she provided help, care, assistance and companionship to Mr Novick in reliance on the representations and promises (Outline of Submissions [7]). The Plaintiff further submits she spent, over many years, time and money in assisting Mr Novick, including changing her working hours and arrangements to facilitate assistance to him (Outline of Submissions [7]).

86. The Plaintiff submits her conduct was therefore at significant cost and expense to her in reliance and detriment to Mr Novick’s representations (Outline of Final Submissions [7]-[13]).

87. The Plaintiff also submits the alleged making of the representations by Mr Novick is corroborated by the evidence of the Plaintiff’s witnesses and the own credible account of the Plaintiff (Outline of Final Submissions [1]-[6]).

Breach of contract

88. The Plaintiff alleges an alternative claim in breach of contract arises, with the date of breach either on Mr Novick’s death on 18 July 2017 or on the date of the making of his last will on 25 May 2017 (Outline of Final Submissions [41]). The Plaintiff briefly suggests that there was offer, acceptance and she is entitled to damages. However, I note this argument was not developed comprehensively in written submissions or oral argument.

Further considerations

89. The Plaintiff makes criticism of the Defendant’s credibility and her assertions that she is of limited means (Outline of Final Submissions [14]-[22]). The Plaintiff invites the Court to accordingly reject the Defendant’s evidence, particularly when she contests the Plaintiff’s own evidence.

90. The Plaintiff also invites the Court to closely scrutinise the reverse mortgage entered into by Mr Novick and the frequent withdrawals or drawdowns made from the loan account (Outline of Final Submissions [22]-[33]). Although falling short of a claim of tracing all the moneys obtained from the drawdowns, the Plaintiff makes a claim that the inference is readily available that all the withdrawals on the reverse mortgage loan account were made by the Defendant for the purposes of gambling or secreting the money elsewhere.

91. The Plaintiff also suggests that the wills of Mr Novick and his handwritten note sent to Mr Havas of 18 November 2015 act as proof that Mr Novick had made prior representations to the Plaintiff. The Plaintiff suggests his note acts as proof that Mr Novick knew that he had broken his promises to the Plaintiff and his wills simply acted as cynical attempts to protect his change in position (Outline of Final Submissions [34]-[40]).

Defendant

Equitable estoppel

92. The Defendant submits that the onus is on the Plaintiff to establish the equitable estoppel by representation and the three ingredients of representation, reliance and detriment. The Defendant asserts the Plaintiff is unable to establish these three ingredients (Outline of Submissions [8]-[10]).

93. Firstly, the Defendant submits that the Court should not be satisfied (to the requisite degree) that Mr Novick made the alleged representations, especially when contrasted to the contemporaneous note written by him on 18 November 2015 (Outline of Submissions [11]). The Defendant suggests the Court should be particularly cautious of the alleged oral representations made by Mr Novick, particularly as they are pitched at a level of hopeless generality unsupported by extrinsic, written evidence (Outline of Final Submissions [4]-[13]). The Defendant also suggests the witnesses called by the Plaintiff have not deposed to a single instance of Mr Novick having told them that he intended to leave his estate to the Plaintiff (Outline of Final Submissions [14]-[19]). The Defendant commends the evidence of Mr Havas, the written letters of Mr Novick and the wills and power of attorney given in favour of the Defendant as evidence clearly refuting the authenticity of the Plaintiff’s claims (Outline of Final Submissions [20]-[25]).

94. Secondly, the Defendant submits the Plaintiff’s evidence does not establish reliance, as the evidence falls short of establishing the Plaintiff’s conduct was done in reliance upon the alleged representations (Outline of Submissions [12]). The Defendant alleges the Plaintiff’s evidence is unacceptably vague, for example contradicting with the evidence given by Mr Aarons and implausible given the fact that Mr Novick could have attended doctor’s appointments without the assistance of the Plaintiff (Outline of Final Submissions [26]-[41]). The Defendant submits the Plaintiff’s services to him were made simply out of companionship and hospitality in the hope that Mr Novick might make good his assurances (Outline of Final Submissions [42]-[43]).

95. Thirdly, the Defendant denies the Plaintiff can make a claim on the question of detriment (Outline of Submission [13]). The Defendant argues the Plaintiff’s contention is again hopelessly general, without any receipt or contemporaneous document establishing detriment (Outline of Final Submissions [44]). The Defendant also rejects that the Plaintiff’s contention that she was unable to take a full-time position at the Dee Why RSL due to care of Mr Novick as insufficient to prove detriment (Outline of Final Submissions [44]-[49]).

Breach of contract

96. The Defendant submits the Plaintiff’s claim in breach of contract is untenable, as it fails to demonstrate (amongst other elements) an objective intention on the part of Mr Novick to enter into binding legal relations (Outline of Submission [13]-[15]). The Defendant submits the Plaintiff’s own evidence falls entirely short of establishing that Mr Novick represented to her that he would make and not revoke a will in her favour. The Defendant argues Mr Novick could change his will as often as he liked, and did not make a promise that could give rise to an enforceable contract as between him and the Plaintiff (Outline of Final Submissions [50]-[61]).

Further considerations

97. The Defendant further asserts that any of the arguments proffered by the Plaintiff should also be refused as incapable of being addressed by any proper measure of relief. This includes the submission that the Defendant is the beneficiary under a validly executed will, and would suffer hardship and injustice as a third party should remedies be provided in favour of the Plaintiff (Outline of Submissions [16]-[19]; Outline of Final Submissions [62]-[65]).

98. The Defendant also rejects the arguments proffered by the Plaintiff regarding her credit, her spending of Mr Novick’s money and the possibility of a romantic relationship between the Defendant and Mr Novick as made on an ad hominem basis (T268/1-6).

Evidence

Evidence of Ms Lorena Zupicic

99. Ms Zupicic the Plaintiff swore four affidavits on 15 February, 28 February, 2 March and 5 April 2018.

100. Ms Zupicic was born in 1968. She married her husband who was then 24 years of age in 1994. They married in Australia.

101. She had previously been living in Croatia and for a time had lived with Mr Novick’s mother in Italy. His mother lived in Trieste which was very close to where the Plaintiff’s family lived.

102. Prior to coming to Australia the Plaintiff would speak to Mr Novick from time to time by phone and write to him.

103. During one of their conversations Mr Novick purported to encourage her to think about moving to Australia. She emigrated in 1994 and made contact with Mr Novick soon after her arrival.

104. When she arrived she believed that Mr Novick had just recently purchased the apartment in Potts Point.

105. The Plaintiff obtained employment at the Dee Why RSL in June 1994 where she was employed as a waitress and cashier. She has continued to work in the same role to this date. She works approximately 20 to 30 hours a week and is also a bookkeeper for her husband’s business, Compact Car Repairs Mona Vale. That involves approximately 8 hours each week.

106. The Plaintiff said that when she first arrived in Australia she was approximately 27 years of age and Mr Novick was approximately 70 years of age. She was a family orientated person and she commenced what she describes as a very close relationship with Mr Novick.

107. She and her husband have two children, one born in 1994 and the other in 1998.

108. From time to time Mr Novick would come to their house and babysit the children and on the odd occasion the Plaintiff and her husband would either go out or perhaps have a night away somewhere. Mr Novick became very close to her two sons, Anthony and Stephen who regarded him as a grandfather figure.

109. The Plaintiff said that Mr Novick did not like to be alone and on many occasions he would express his gratitude to the Plaintiff for her company and that of her two young sons.

110. The Plaintiff alleges that since 1994 Mr Novick stayed with her family at her first home in Dee Why and later in Mona Vale during the Christmas and Easter period in a room that they had set up for him. At Easter he would arrive before Good Friday and for the Christmas break he would arrive a day or so before Christmas Eve. He would normally stay for about seven days during which time the Plaintiff would cook for him and clean his clothes.

111. On many occasions when he visited them Mr Novick would pass his time sitting and talking with her husband or herself or playing cards and chess with her sons.

112. The Plaintiff asserted that from early 1994 Mr Novick would come to their house for regular weekly and/or fortnightly weekend visits. He would stay on Friday and Saturday nights and return to Potts Point on the Sunday. On the occasions that Mr Novick was not able to visit the Plaintiff and her family they would visit him in Potts Point.

113. From 1995 the Plaintiff began visiting Mr Novick more regularly on a weekly basis at Potts Point travelling firstly from their house in Dee Why and later from 2006 from her home in Mona Vale.

114. Before each visit she would generally cook Mr Novick a Croatian meal and have it ready packed for him for his lunch or dinner. She would also buy Mr Novick fruit and other groceries and take them. At one point in about 1998 Mr Novick asked whether the Plaintiff could give him more assistance around the home by washing his clothes, cleaning and doing the shopping and other errands.

115. Mr Novick at first offered money to the Plaintiff but the Plaintiff did not accept any or receive any. However at one point in 1998 Mr Novick said to the Plaintiff that he wanted to repay her and her family for all the work that they had done and for looking after him in the future and instead of paying her he was going to leave her everything in his Will. The Plaintiff said she thanked Mr Novick. The Plaintiff believed that in the years between 1998 and 2015 the question of payment arose on numerous occasions. In 2015 in the course of one of these conversations Mr Novick said to the Plaintiff that he had made sure she would be repaid for all her help as his will said that she got his whole estate and that she should not worry about anything.

116. The Plaintiff believed from her conversations with Mr Novick that she would receive the entirety of his estate when he died. She also appreciated that that involved his apartment in Potts Point and she also believed he had approximately $40,000 in a savings account which he had told her about.

117. During the years when she looked after him and accompanied Mr Novick the Plaintiff asserts that she organised and paid for approximately $11,000 by way of renovation of the kitchen in May 2015, having earlier arranged for the purchase and installation of an air conditioning unit in February 2015 for $2,000. Over the years she also arranged for her husband to do home maintenance such as fixing window openings and installing security locks, fly screens and phone lines to his bedroom. The Plaintiff also asserted that from the time she arrived in Australia in 1994 she organised for her husband a qualified mechanic to fix and maintain Mr Novick’s motor vehicle. She also asserted that from 2010 to 2016 she would pay the registration, insurance and the petrol for Mr Novick’s car and fill the car and wash it on occasions he was at Mona Vale.

118. At some point around 2009 the Plaintiff asserts that Mr Novick mentioned to her that it was hard being a pensioner and that he had little money to pay for expenses apart from food and clothes. The Plaintiff asserts that in the period from 1994 to 2016 she would take Mr Novick to his doctor’s appointments to see his GP and to see specialists and other doctors. On these days she would collect him from his apartment and take him to the various appointments allowing time to get back to Mona Vale. She often changed her roster at work at the Dee Why RSL so that she could manage visiting Mr Novick. She bought him clothing and other domestic items from time to time during the whole of the period from 1998 to his death.

119. In 1998 for example when he had a hip replacement she took him to St Vincents hospital and to rehabilitation after the surgery. During this period she visited him on a daily basis and took care of him until he had recovered. She continued to cook meals for him, do his shopping, wash his clothes and clean his house.

120. In 2010 Mr Novick told the Plaintiff he had a problem with his heart and that he would need to visit the hospital more regularly to which the Plaintiff indicated that she would look after him.

121. After 2010 he required extra visits to medical practitioners and she continued to take him to various appointments until his death.

122. In 2012 Mr Novick said to the Plaintiff that he had given her everything in his will because she was the one who was helping him and she was the closest member of his family. He also said that the Plaintiff had worked hard, that she had fed him, cleaned his clothes and cleaned his house and he offered to sell the apartment in Potts Point and give the Plaintiff the money from the sale so that he could move into her house at Mona Vale. This would alleviate her having to work and travel.

123. On occasions Mr Novick expressed his gratitude to the Plaintiff for travelling from Mona Vale. The Plaintiff during the entire period was juggling her own work in order to fit Mr Novick in, in addition to her own family commitments.

124. Over the years all maintenance and repairs needing to be done to the unit were carried out by the Plaintiff’s husband. At no time did Mr Novick pay her husband for any of the work he did.

Conclusion

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

493. As a result of Mr Novick becoming enamoured of the Defendant, he was prepared to renege on his promises to the Plaintiff.

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

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

496. This case is about whether it would be unconscionable to allow Mr Novick to avoid his lawful obligations. In my view therefore in order to fulfil Mr Novick’s promise and its performance I think a trust ought to be declared on what is left of the proceeds of his estate.

497. The Plaintiff alleges an alternative claim in breach of contract arises with the date of breach either on Mr Novick’s death on 18 July 2017 or on the date of the making of his last will on 25 May 2017 (Outline of Final Submissions [41]). This argument was not ventilated comprehensively in written submissions, oral submissions or examination of the witnesses.

498. A breach of contract claim takes into account the question of whether the parties intended to enter into legally binding relations. This is an objective determination taking into account the totality of the evidence including the state of affairs between the parties. I am of the view that the evidence does not establish that Mr Novick ever intended to enter in a form of contract with the Plaintiff in relation to his estate, as there is no objective evidence to establish this: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8. I am of the view the breach of contract claim is not made out.

499. In the light of my findings, I am inclined to make some of the declarations and orders sought by the Plaintiff, inter alia, in the Points of Claim dated 9 March 2018 at [11]-[16].

500. However, I will hear submissions if necessary on the precise declarations or orders sought.

501. I will hear the parties on costs if necessary.

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Decision last updated: 18 May 2018