Lurline Faith Richardson v John David Lindsay

[2018] NSWSC 1457

Supreme Court

New South Wales

Medium Neutral Citation:	Lurline Faith Richardson v John David Lindsay & Anor [2018] NSWSC 1457
Hearing dates:	10, 11, 21 September 2018
Decision date:	28 September 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See paras [208]-[210]
Catchwords:	ESTOPPEL – equitable estoppel – general principles and scope – rights arising out of deed – whether valid variation of deed by oral agreement or estoppel – whether estoppel operates in the face of a deed – whether plaintiff should be estopped from relying on term of a deed of family arrangement
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Bluescope Steel Ltd (2014) 87 NSWLR 332; [2014] NSWCA 276 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Berry v Berry [1929] 2 KB 316 Browne v Dunn (1893) 6 ER 67 Chalmers v Pardoe [1963] 1 WLR 677 Creamoata Ltd v Rice Equalization Association Ltd (1953) 89 CLR 286; [1953] HCA 40 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Texts Cited:	Nicholas Seddon, Seddon on Deeds (Federation Press, 2015)
Category:	Principal judgment
Parties:	Lurline Faith Richardson (Plaintiff) John David Lindsay (First Defendant) Fiona Judy Lindsay (Second Defendant)
Representation:	Counsel: M Painter SC, H Jewell (Plaintiff) D Neggo (Defendants)   Solicitors: Seniors Rights Service (Plaintiff) Whiteley Ironside & Shillington (Defendants)
File Number(s):	2018/107944
Publication restriction:	n/a

Judgment

Procedural history

Background facts

Legal principles

Equitable estoppel

Estoppel in the face of a deed

Equitable charges

Parties’ submissions

Plaintiff

Defendants

Evidence

Plaintiff’s Lay Evidence

Ms Lurline Faith Richardson (the Plaintiff)

Ms Gloria Fay McCormack

Ms Vicki Ann Rogan

Plaintiff’s Expert Evidence: Ms Janelle Brunner

Defendants’ Lay Evidence

Mr John David Lindsay (First Defendant)

Ms Fiona Judy Lindsay (Second Defendant)

Ms Christine Rees

Ms Erika Louise Robin Lindsay

Ms Helen Grace Chevalley

Ms Jodie Moes

Defendants’ Expert Evidence: Mr Robert Arthur Nevins

Consideration

Conclusion

Judgment

Procedural history

1. Ms Lurline Faith Richardson (Plaintiff) filed a Statement of Claim on 26 March 2018 seeking judgment against John David Lindsay (First Defendant) and Fiona Judy Lindsay (Second Defendant) in the amount of $220,000 plus interest at the prescribed rate from 8 June 2015. This was revised to seek $345,000 plus interest from 26 March 2018 (CB 18).

2. The Plaintiff also sought a charge over the property located at 165 Post Office Lane Lewis Ponds NSW 2800 (Lewis Ponds Property) for the amount of judgment, interest and costs. This claim was revised or clarified to reflect a percentage of the Lewis Ponds Property of 38% to trace the $220,000 contribution into the sale of the Orange Property and purchase of the Lewis Ponds Property.

3. The Defendants filed a Defence on 25 May 2018 consisting largely of denials and further that the Plaintiff be estopped from seeking relief by deed, by representation or by promissory estoppel. The estoppel by deed defence was on the basis that the deed of family arrangement dated 4 October 2011 entered into between the parties stated the $220,000 was a gift.

4. The Plaintiff filed an Amended Statement of Claim on 7 August 2018 and sought leave to file a Further Amended Statement of Claim on 10 September 2018 at the first day of hearing which was not opposed by the Defendants seeking only to address an error in the chain of property ownership (T1/21-41). On 21 September the Defendants sought leave which was granted to file an Amended Defence (T151/47-50).

Background facts

5. The Plaintiff was born on 9 October 1934 (CB 27). She is currently 83 years old and is generally in good health. She receives or has received treatment for hypertension and depression (CB 28).

6. The Plaintiff left school at age 15 having completed Year 9 at high school. She worked mainly on a farm owned by relatives doing stock work with cattle (CB 40). She married at the age of 19 and had four children (CB 40):

1. Ms Gloria Fay McCormack (born in 1955);

2. Ms Vicki Ann Rogan (born in 1959);

3. Ms Helen Grace Chevalley (born in 1961); and

4. The Second Defendant (born in 1974).

7. In 1982 the Plaintiff divorced and never remarried, and at this time she bought a farm in her sole name which she sold in 1999 then buying a duplex at Yamba (CB 40).

8. On 2 September 2000 the Defendants married. The couple have three children: twins Seaanna and Erika born in 1999 and Domineque born in 2009 (CB 102).

9. In about 2001 the Plaintiff sold her property in Yamba and bought another property in Grafton. In 2008 she sold that property and bought a property at 53 George Street South Grafton NSW (South Grafton Property) (CB 40).

10. In 2010 the Defendants and their children moved to Orange where they lived in a rental property at 125 Phillip Street Orange NSW 2800 (CB 102).

11. On 17 May 2010 the Plaintiff’s ex-husband Mr Albert Edward Richardson passed away (CB 102).

12. On 5 September 2011 the Plaintiff sold her South Grafton Property for $305,000 (CB 47-48). She moved to Orange to live with the Defendants on 6 September 2011 and on 7 September they inspected a property at 13 Bill Marshall Drive Orange NSW 2800 (Orange Property) (CB 41).

13. On 8 and 9 September 2011, the Plaintiff applied $220,000 of the proceeds of sale from her South Grafton Property to the First Defendant (this occurred with one payment of $200,000 and one payment of $20,000). It is uncontroversial that this amount was intended to assist the Defendants’ purchase of the Orange Property (CB 27).

14. In about early October 2011 the parties entered into a deed of family arrangement (the Deed) (CB 29-31):

Deed of Family Arrangement

Between:

Lurline Faith Richardson of 125 Phillip Street, Orange NSW 2800 (hereafter called “Faith”)

And:

John David Lindsay and Fiona Judy Lindsay of 125 Phillip Street, Orange NSW 2800 (hereafter called “the Carers”)

Recitals:

A. Due to advancing age, Faith has sold her property in Grafton;

B. The Carers have offered to have Faith live with them in Orange;

C. In order to provide care and accommodation for Faith, the Carers need a bigger home;

D. Faith has agreed to provide the sum of $220,000.00 to the Carers to assist them with purchasing a new home on terms and conditions as set out in this agreement.

The Agreement:

1. Faith will advance to the Carers by way of conditional gift the sum of $220,000.00 to assist them in the purchase of 13 Bill Marshall Drive, Orange NSW 2800 for the sum of $470,000.00 or some other suitable accommodation for Faith, the Carers and their family. The Conditions of this gift are contained in this agreement;

2. In consideration of the advance, the Carers hereby undertake to care for and have Faith live with them and their children in the property for as long as reasonably practicable having regard to Faith’s state of health, her wellbeing and medical needs;

3. Also in consideration of the advance but also because they desire to do so the Carers will care for Faith and provide their personal services to her on an “as needed” basis including but not limited to: -

3.1. Provision of meals, cleaning and personal laundry;

3.2. Maintenance and repairs of the house;

3.3. Assistance with grooming, bathing, dressing and personal affairs;

3.4. Purchasing with monies made available by Faith, or assisting her to purchase, food, clothing, toiletries and other personal items or necessaries of life as needed for the enjoyment of her life;

3.5. Monitoring Faith’s physical and mental condition and nutritional needs on a regular basis in cooperation with health care providers;

3.6. Arranging to transport Faith to health care providers of Faith’s choice and assisting her in carrying out their instructions and directions;

3.7. Arranging and facilitating social or community services for Faith;

3.8. Catering for activities such as outings and walks in keeping with Faith’s lifestyle and health;

3.9. Respecting Faith’s privacy where it is needed or required by her; and

3.10. Encouraging Faith’s autonomy and independence and to stay activity and involved in social and family interaction.

4. In conjunction with this agreement, Faith has appointed the Carers as her joint and several attorneys by way of Enduring Power of Attorney dated 4 October 2011.

5. Faith has also appointed Fiona to be her guardian pursuant to Deed of Enduring Guardianship dated 4 October 2011;

6. Faith is currently in good health and it is her intention, although living with the Carers, to remain responsible for her own financial and medical affairs for as long as is possible;

7. The Enduring Power of Attorney and Deed of Enduring Guardianship referred to above is given with the intention that should Faith’s health or mental condition deteriorate to the point where she cannot manage her own financial or medical affairs, the Carers will be able to do so for her;

8. If for reasons stated above, Faith is at some stage unable to continue to live with the Carers, then in consideration of the advance made for the purchase of the property, the Carers hereby undertake that they will provide whatever financial assistance is necessary to adequately accommodate Faith in an aged person’s unit or care facility including, if necessary, the provision of an accommodation bond to secure such accommodation and including, if required, to supplement her pension with weekly payments for accommodation charges and/or care nursing facilities;

9. The Carers acknowledge that this is an ongoing obligation for Faith’s lifetime and all parties intend to create a legally enforceable agreement between them;

10. Faith certifies by her signature to this agreement that she has received independent legal advice in relation to this Deed before signing it.

15. On 11 October 2018 a Mr Robert Rogers solicitor signed a certificate stating he had advised the Plaintiff independently as to the effect of the Deed (CB 32).

16. On or about early October 2011 the Plaintiff also executed a suite of other documents including a power of attorney, a deed of enduring guardian and a will (Plaintiff’s closing submissions [4]).

17. On or about 1 December 2011 the Defendants completed the purchase of the Orange Property for $470,000 and they and the Plaintiff moved into this house (CB 43; Plaintiff’s submissions [7]-[8]). At hearing there was no specific amount provided as to the extent of mortgage over the Orange Property (see, eg, T41/9-17).

18. In December 2014, Ms Christine Rees asserts that she and her partner went with the Plaintiff and Defendants to inspect the property at Lewis Ponds, with the Plaintiff pointing out various aspects of the property and its benefits (CB 92).

19. In or about the end of 2014, the Plaintiff asserts the Defendants told her they wanted to sell the house in Orange and purchase a property at 165 Post Office Lane Lewis Ponds NSW 2800 (Lewis Ponds Property). She asserts they took her to inspect the property at some time (CB 44).

20. The First Defendant asserts he took the Plaintiff to see the property on three occasions (CB 136). During the end of 2014 and early 2015 the Defendants made the Orange Property ready for sale (CB 137).

21. In February 2015 Ms Rees asserts the Plaintiff expressed to her again how she was looking forward to moving to the Lewis Ponds Property (CB 92).

22. In February 2015, Ms Helen Grace Chevalley (the Plaintiff’s daughter) asserts that she and the Plaintiff were driving home after a visit, and on the way back the Plaintiff insisted that they go past a property at Lewis Ponds. On her evidence Ms Chevalley and the Plaintiff stopped at the boundary of the property where the Plaintiff pointed out the boundaries and said words to the effect: “[i]t’s going to be great for the horses. We are going to do a bit of work to make it perfect for them” (CB 99).

23. The Plaintiff says that in the end of February 2015, she did go past to look at the Lewis Ponds Property before she moved into it. She accepted she walked around the full perimeter of the property (T24/36-T25/2).

24. In 13 March 2015, the Defendants sold the Orange Property for $515,000 to purchase the Lewis Ponds Property for $640,000 (CB 27; T86/35-37). The mortgage on the property is currently at approximately $400,000 (T113/9-13).

25. Shortly afterwards the Plaintiff and the Defendants moved to the Lewis Ponds Property (CB 27).

26. On or about 8 June 2015 the Plaintiff vacated the Lewis Ponds Property and moved to Inverell to be near her other daughters (CB 27). The circumstances of this departure and what was said on or about this time is disputed between the parties.

27. Currently she lives in private rental accommodation at a cost of $520 per fortnight, with her main income from the age pension of $1,027 per fortnight (CB 28).

28. On 12 June 2015 Campbell Paton & Taylor solicitors acting on behalf of the Plaintiff wrote a letter to the Defendants enquiring as to a proposal for repayment of the $220,000 she had contributed to them (CB 33).

29. On 4 August 2015 Campbell Paton & Taylor solicitors wrote a further letter noting they had received no response from the Defendants and requesting the return of a horse named “Jock” to the Plaintiff (CB 34).

30. On 22 September 2015 Campbell Paton & Taylor solicitors wrote a further letter to the Defendants noting they had not received a response and advising they had received instructions to recover the amount of $220,000 (CB 35).

31. On 11 August 2017 Tim Tunbridge solicitor of Seniors Rights Services on behalf of the Plaintiff wrote to Mr John Carpenter stating that the Plaintiff was entitled to a refund of the $220,000 contribution (CB 36-37).

Legal principles

Equitable estoppel

32. In Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Dixon J said (at 674-5):

In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that 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 that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.

33. In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Brennan J said (at 427):

The same observations hold good, mutatis mutandis, with respect to the adoption of an assumption or expectation which founds an equitable estoppel. Clearly an assumption or expectation may be adopted not only as the result of a promise but also in certain circumstances as the result of encouragement to adhere to an assumption or expectation already formed or as the result of a party’s failure to object to the assumption or expectation on which the other party is known to be conducting his affairs.

34. In Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [1]-[2], 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.

35. Further in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [50]-[55], [58], [61] and [64] 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”.

36. Their Honours also noted (at [71] and [77]) (citations omitted):

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.”

37. In the same case Gageler J observed (at [90]-[93]) (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 GoldMines 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?”

Estoppel in the face of a deed

38. In Seddon on Deeds (Federation Press, 2015) the author has outlined the following (at [4.14] and [6.39]) (citations omitted):

Variation

Changes made to a deed by agreement. The common law required that a consensual variation to the terms of a deed must itself be done by deed. In the case of a deed poll, a variation must be done by deed. This method can of course be used but equity recognises that a less formal method is effective. A deed inter partes can be varied by agreement, just like a contract can be varied by agreement. The same rules apply. The variation must be brought about by agreement and there must be mutual consideration. There is no requirement of writing. Presumably a deep poll can also be varied by contract with those benefited by the deed.

We have seen at [4.8] above that an alteration made by one party may be implicitly or expressly agreed to, which means that the rule in Pigot’s Case does not apply and so the deed remains legally viable. The cases dealing with this issue do not then consider whether the alteration is enforceable as a variation. The answer is that such an alteration becomes an effective variation to the deed so long as the consideration requirement is satisfied or the variation is effective through an estoppel.

The law of contract recognises that a contract can be entered into in a casual manner. Agreement can be inferred from the conduct of the parties. Or, an estoppel may operate. A variation of contract can also occur in a casual manner through inferred agreement or estoppel. This is so even where there is a procedure laid down in the contract for making variations and it is not followed. The parties have implicitly agreed not to use that procedure. The same principles apply to a variation of a deed.

The consideration requirement may be fairly easily satisfied and has received very little attention in the case law on casual contract changes. This is in part explained by the relaxation of the rule that performing an existing duty is no consideration. Even so, a “one-way” change to a deed, even though agreed to, could be challenged if it is not supported by consideration and estoppel does not apply. Accordingly, prudence would dictate that the common law requirement that a deed can be varied by a deed should be followed.

What is remarkable is that the law’s huge emphasis on form in making a deed is in stark contrast to the rules that apply to variation of a deed which can occur in the most casual manner.

…

Estoppel. Various references to estoppel in this and other chapters have generally focused on the possibility of estoppel being used to overcome a defect in a deed. Of course, an estoppel can also be used defensively if the circumstances are such that it would be unconscionable for a party to enforce a deed.

39. A variation of a contract or deed ineffective at law may still be effective in equity: Berry v Berry [1929] 2 KB 316; Creamoata Ltd v Rice Equalization Association Ltd (1953) 89 CLR 286; [1953] HCA 40.

40. However an equitable estoppel can be used in the face of a deed to vitiate the enforcement or reliance on a defence or right held in the deed. This is true at a basal level because equitable estoppel applies in any circumstance where there has been a representation giving rise to an estoppel with respect to the enforcement of or reliance on a defence or right: Allianz Australia Insurance Ltd v Bluescope Steel Ltd (2014) 87 NSWLR 332; [2014] NSWCA 276 at [89] (Meagher JA).

41. In Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Kirby P (at 45-52) considered whether the appellant could not succeed upon reliance on a number of deeds of release because either it had waived its right to rely upon the deed, agreed to a variation of the deeds, or was estopped from relying on the deeds. His Honour said (at 45):

In order to secure the relief against unconscionable operation of an otherwise applicable deed of release, because of the suggested representation prior to its execution that the deed would not operate in respect of certain claims, it was necessary that those seeking such relief should establish that directly, or by their agents, they had become aware of the representation and had proceeded to execute the release in reliance upon it. Otherwise, the representation, if unknown to them or to their agents or known only after the execution of the release, would have had no effect on such execution as to make its operation unconscionable. The release would then operate according to its terms. It would do no offence to equity or conscience to give the release its full effect. It only became unconscientious for a party to insist upon the release if it could be shown that the other party had executed it in reliance upon the representations made concerning its operation.

42. His Honour did not suggest there is inherently any quality of deeds (as opposed to contracts or otherwise) which precludes the equitable operation of estoppel.

Equitable charges

43. The Plaintiff relied heavily upon the decision of Morris v Morris [1982] 1 NSWLR 61 to support the existence of a charge in the present circumstances.

44. In Morris v Morris [1982] 1 NSWLR 61 McLelland J said (at 63-4):

I do not think that on the facts as I have found them there is room for inferring the existence at any material time of an actual intention on the part of the plaintiff or the defendants that a trust of the property or any share therein was to be created in favour of the plaintiff …

However, in my view wider equitable principles operate in the present case. The plaintiff spent money on the defendants’ property in the expectation, induced or encouraged by the defendants that he would be able to live there indefinitely as a member of their family. This expectation has been defeated by the occurrence of events which were not in contemplation when the money was spent and as a result of which any subsisting right of residence by the plaintiff in the property is now of no practical consequence. In my opinion, on the facts of this case, it would be unconscionable and inequitable that the defendants should now retain the benefit of the expenditure by the plaintiff of his money on their property free of any obligation of recoupment to him …

[I]n the particular circumstances of the present case the plaintiff’s equity would in my opinion be satisfied by his having an equitable charge over the Kingsgrove property …

45. In this case his Honour cited with approval the following principle stated by the Privy Council in Chalmers v Pardoe [1963] 1 WLR 677 (at 681-2):

The claim is based on the general equitable principle that, on the facts of the case, it would be against conscience that Pardoe should retain the benefit of the buildings erected by Chalmers on Pardoe’s land so as to become part of that land without repaying to Chalmers the sums expended by him in their erection ..

[A] court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended … the court must look at the circumstances in each case to decide in what way the equity can be satisfied.

46. Neither case referred to above involved any issues of estoppel as allegedly arise in this case.

Parties’ submissions

Plaintiff

47. After briefly outlining the background facts to this matter (submissions [1]-[17]) the Plaintiff submits that she objected to: (a) the purchase of the Lewis Ponds Property, (b) moving to the Lewis Ponds Property, and (c) vacating the Orange Property (submissions [18]).

48. The Plaintiff further submits that in reliance on the representation made to her by the Defendants that “[y]ou can come and live with us and we will care for you for life” she sold her property in South Grafton and contributed $220,000 to the Defendants. She asserts had it not been for the representation of the Second Defendant she would not have sold her property, and that in this circumstance the Court should charge the Lewis Ponds Property at a pro-rated value of the $220,000 contribution (submissions [19]-[23]).

49. The Plaintiff contends that the $220,000 contribution was paid to the Defendants for the sole purpose of purchase of a home for the family to live in, and in fact was used for that intended purpose (closing submissions [1]-[4]).

50. The Plaintiff submits that the Deed entered into in October 2011 between the parties is problematic. This is allegedly because it was executed after the Plaintiff contributed $220,000 to the Defendants, does not refer to the Lewis Ponds Property and was entered into without adequate legal advice being provided to the Plaintiff (submissions [24]-[27]). However the Plaintiff does assert that the terms of the Deed are tolerably clear that the $220,000 contribution was a conditional gift provided to the Defendants and that the qualification “or some other suitable accommodation” in clause 1 of the Deed only accounted for the contingency that the Orange Property purchase was not completed (closing submissions [5]-[11]).

51. In addition, the Plaintiff submits that the Lewis Ponds Property is not “suitable accommodation” as per the terms of the Deed because it is remote, poorly serviced by utilities and isolated from family and friends. The Plaintiff submits the Defendants, in purchasing the Lewis Ponds Property, breached the Deed causing the Plaintiff to suffer damages (submissions [28]-[29]). Her case is that the Defendants moved to Lewis Ponds over the Plaintiff’s protestations before the move, because she did not consider the Lewis Ponds Property suitable for her needs (closing submissions [12]-[13]).

52. The Plaintiff contends that her protests occurred before the move to the Lewis Ponds Property, and that her views were disregarded and overridden with a certain amount of bullying from the Defendants (closing submissions [14]-[19]).

53. The Plaintiff denies that the Defendants’ arguments on estoppel by deed, estoppel by representation and estoppel by promise are made out as against her (submissions [30], closing submissions [34]-[37]). She asserts the Deed did not allow for an unconditional gift, and was not varied to allow the Defendants to acquire the Lewis Ponds Property (submissions [31]-[34]). She likewise asserts estoppel by representation and estoppel by promise against her is not established on the facts, because the Plaintiff never provided the $220,000 as an unconditional gift and the Defendants’ version of events do not establish reliance or detriment giving rise to an estoppel that would bind the Plaintiff (submissions [35]-[36]).

54. The Plaintiff denies she ever represented to the Defendants or encouraged them to purchase the Lewis Ponds Property giving rise to an estoppel, because her evidence has “the ring of truth” and the Plaintiff herself was “not shaken” in cross-examination (closing submissions [38]-[39]). She contends that the Defendants’ evidence is untruthful, for example asserting the First Defendant’s evidence that the Plaintiff did not pay school fees is untrue (closing submissions [40]-[45]). Although Ms Rees, Ms Lindsay, Ms Chevalley and Ms Moes were not cross-examined, the Plaintiff contends their evidence nevertheless goes nowhere (closing submissions [46]-[51]).

55. Rather the Plaintiff asserts that the Defendants themselves should be bound by proprietary estoppel, in that the Plaintiff acted to her detriment in paying the $220,000 contribution in reliance upon her agreement with the Defendants. She asserts this proprietary estoppel created an interest in the Orange Property which is traceable in the Lewis Ponds Property as a now 38% share in the Lewis Ponds Property (closing submissions [20]-[25]). Significantly, the Plaintiff contends the proprietary estoppel is not displaced by the Deed as the rights created in equity are concurrent to the rights created in the Deed, and the later execution of the Deed does not extinguish the proprietary estoppel (closing submissions [21]).

56. In the alternative the Plaintiff alleges breach of the Deed as the move to Lewis Ponds was against her wishes and not provided for in the Deed (closing submissions [26]). Her construction of the terms “suitable accommodation” in the Deed is that determined objectively the Lewis Ponds Property would not satisfy this condition because of its limited facilities and remoteness (closing submissions [27]-[33]).

57. The Plaintiff further asserts her expert witness Ms Janelle Brunner is to be preferred to that of the Defendants’ expert, because she provided comparables whereas the Defendants’ expert did not provide a record of comparable sales and should be disregarded (closing submissions [52]-[53]).

58. The Plaintiff concludes her version of events should be preferred over that of the Defendants, and she should be entitled to a charge of 38% of the value of the Lewis Ponds Property, or in the alternative reparation of $220,000 (closing submissions [54]-[57]).

Defendants

59. After outlining the background facts to this case and key issues (submissions [1]-[7]) the Defendants submit the Deed entered into between the parties is the most critical document in this case, with each of the parties receiving independent legal advice in relation to this Deed (submissions [8]-[19]).

60. The Defendants submit the Deed was in substance a contract for consideration, especially with clause 9 of the Deed noting the parties intended it to be a legally enforceable agreement (submissions [20]). The payment of $220,000 was purportedly in consideration for the Defendants’ promises and undertakings to care for the Plaintiff, and the payment was not subject to any further conditionality. The Defendants assert from the moment they gave those undertakings and promises, they were entitled to the $220,000 unconditionally, and in the alternative the Deed did not impose any obligation to refund the $220,000 (submissions [21]).

59. The Defendants further assert there is no suggestion they have failed to meet any condition of the Deed, because it was the Plaintiff’s decision to move out of the Lewis Ponds Property and there has been no criticism of the Defendants’ care of the Plaintiff (submissions [23]).

60. The Defendants submit that the move to the Lewis Ponds Property was not inconsistent with the Deed (submissions [24]). Further the First Defendant had a conversation with the Plaintiff where he offered to repay the $220,000 back stating he could refinance, with the Plaintiff refusing this offer. The Defendants submit this conversation demonstrates the Plaintiff considered the Lewis Ponds Property “suitable accommodation” and should be estopped from contending to the contrary (submissions [25]-[27]).

61. The Defendants submit the evidence (including two of the Plaintiff’s own witnesses) establishes that the Plaintiff was enthusiastic about the move to the Lewis Ponds Property and wanted to move (submissions [28]-[30]). They deny the Plaintiff is entitled to a refund, deny that there is anything in the Deed giving rise to an equitable interest or charge of the Lewis Ponds Property, and there is no breach of the Deed established on the evidence (submissions [31]-[33]).

62. By way of closing, the Defendants reiterate their case that it was the Plaintiff who wanted to move to Lewis Ponds and who told the Defendants so (closing submissions [2]-[8]). This is because the evidence of witnesses who were not cross-examined or not challenged in cross-examination establishes it had long been a topic of discussion between the parties that they would move “on the land” (closing submissions [2]-[3]). The evidence establishes the Plaintiff herself was involved at looking at potential properties outside of Orange and was enthusiastic about moving to Lewis Ponds specifically (closing submissions [4]-[5]). Further, the First Defendant’s account of the conversation at [39] of his affidavit where he offered to repay the Plaintiff the money was not challenged in cross-examination (closing submissions [6]). The Defendants deny the First Defendant’s mistake as to the payment of school fees has any significance in this case or suggests he was not honest (closing submissions [6]).

63. The Defendants contend the evidence supports a finding that the Plaintiff did not tell the Defendants she was unhappy at the Lewis Ponds Property or did not want to move there (closing submissions [7]). The Defendants deny the Plaintiff’s reasons for her dissatisfaction with the Lewis Ponds Property are compelling, such as the narrow and winding road, the lack of mobile reception, no reception for the Vital-Call device, small size of the house or lack of facilities (closing submissions [8]). They suggest the evidence of the source of her unhappiness is unconvincing, as is her claim of the “roasting” she received by the Defendants which was not raised in her affidavit evidence and not pleaded (closing submissions [8]).

64. The Defendants submit the Plaintiff had independent legal advice before signing the Deed (not after) (closing submissions [9]-[11]). Further they contend the proper construction of the Deed and the words “or some other suitable accommodation” accommodates the possibility that the parties would move away from the Orange Property (closing submissions [12]-[15]). Even if the Deed is to be construed narrowly, they submit it was open to variation by the parties by agreement where each of them decided to move to Lewis Ponds (closing submissions [16]-[19]).

65. In the alternative, the Defendants reiterate the Plaintiff should be estopped by the conversations she had with the Defendants to the effect that she wanted to proceed with the move to Lewis Ponds, even if that meant the Defendants would not be able to repay her, and she should not be permitted to resile from this representation to which the Defendants have relied to their detriment (closing submissions [20]-[22]).

66. In the further alternative, the Defendants assert the conditions of the Deed have already been satisfied by the Defendants’ undertaking to care for the Plaintiff and provide for her needs. Once they provided those undertakings, the Defendants satisfied their obligations under the Deed (closing submissions [23]-[28]).

67. By way of additional alternative, the Defendants contend even if a condition of the Deed has failed, this does not necessarily give rise to an obligation to return a conditional gift or to refund the $220,000 absent clear language (closing submissions [29]-[30]).

68. In the alternative the Defendants contend the “suitability” of the property at Lewis Ponds on one view was to be determined according to the Plaintiff and she in fact did represent that the property was suitable (closing submissions [31]-[32]).

69. By way of final alternative, the Defendants submit there is nothing in the Deed to suggest the Plaintiff was to obtain a proprietary interest, especially as in the circumstances of this case there were not clear and unambiguous representations or conduct as to provide for an estoppel binding upon the Defendants. They assert no proprietary estoppel or estoppel by encouragement was made out against the Defendants (closing submissions [33]-[35]).

70. As a final argument, the Defendants submit the Plaintiff has no interest in the property and even if her case is otherwise accepted she cannot recover more than $220,000 (closing submissions [36]). In any event the Plaintiff’s value was unconvincing as the expert accepted in cross-examination there was no basis other than speculative optimism of her valuation of $800,000 (closing submissions [37]).

Evidence

Plaintiff’s Lay Evidence

Ms Lurline Faith Richardson (the Plaintiff)

73. The Plaintiff swore two affidavits on 17 May 2018 and 4 June 2018.

74. In her first affidavit (17 May 2018) the Plaintiff outlined how she was born on 9 October 1934.

75. She asserted in September 2011 she contributed $220,000 to purchase the Defendants’ property in Orange and in October 2011 entered into a Deed of family arrangement with the Defendants.

76. She described how in March 2015 the Defendants sold the Orange Property and purchased the Lewis Ponds Property for $640,000, into which she moved shortly before leaving the property on or about 8 June 2015.

77. She said commencing on or about 8 June 2015 she asked for the $220,000 contribution she had made to the Defendants’ purchase of their property to be returned to her.

78. In her second affidavit (4 June 2018) after describing briefly her upbringing the Plaintiff described how her youngest daughter the Second Defendant started living in a de facto relationship with the First Defendant in about 1995. They had twin girls Seaanna and Erika in 1999, got married in 2000 and had another child Dominique born in 2009. She said she became close to them and in 2011 the Defendants moved to live in a rental property in Orange.

79. She said from about 2010 onwards she became very sick with shingles, hypertension and high blood pressure, where she missed the Defendants and travelled to Orange on two occasions to stay with them for short visits. She said during her interactions with the Defendants they said to her “Why don’t you sell your house at South Grafton and we will buy a house here in Orange. You can come and live with us and we will look after you … We will need a deposit for the new house in Orange. The new house will have a separate granny flat for you with a nice garden. But you must not tell Vicki and Gloria about our arrangement”.

80. The Plaintiff asserted on 5 September 2011 she sold her house for $305,000 and moved to Orange to live with the Defendants on 6 September 2011. On 7 September 2011 they inspected the Orange Property and the Defendants offered to buy it for $470,000.

81. The Plaintiff’s evidence is that the Defendants said to her words to the effect “we will need you to contribute a deposit of $200,000” to the purchase of the Orange Property which she agreed to. On 8 September 2011 she went with the First Defendant to Bendigo Bank and transferred $200,000 to their account. However later that evening the Plaintiff asserted the Defendants asked her to contribute a further $20,000 which she did on 9 September 2011.

82. On 4 October 2011 the Plaintiff asserted the Defendants took her to see Mr John Carpenter solicitor of the firm Blackwell Short Lawyers where she signed an enduring power of attorney and a document headed “Deed of Family Arrangement”. She says that later that day she took the Deed which she had already signed and with the Second Defendant they went to see a Mr Bob Rogers solicitor of Campbell Paton and Taylor for independent advice in respect to the Deed.

83. On 11 December 2011 the Plaintiff said she and the Defendants moved into the Orange Property which the Defendants had bought for $470,000. She asserted she bought various furniture items and made contributions to the expenses of the property as follows:

1. Council rates of $574 in May 2013;

2. Council rates of $602.30 in September 2013;

3. Council rates of $600 in February 2014;

4. Council rates of $600 in June 2014;

5. Council rates of $622 in September 2014; and

6. Council rates of $622 in December 2014.

84. She further asserted she paid for groceries, her own car, mobile phone and medical expenses as well as a contribution of $243.05 in November 2013 towards the Defendants’ children’s school fees.

85. The Plaintiff stated towards the end of 2014 the Defendants said to her words to the effect: “[w]e want to sell the house here in Orange and move to Lewis Ponds”. They then took her to inspect the Lewis Ponds Property which was 24 kilometres east of Orange along a narrow, steep and winding road. She said she observed the property was smaller, isolated, with no shops, health care facilities or public transport.

86. The Plaintiff asserted she stated to the Defendants: “I don’t want to move to Lewis Ponds. It is not a suitable place for me”. The Defendants purportedly replied “[w]e already have a handshake deal with the owner to buy the place here. You have to move to Lewis Ponds whether you like it or not”.

87. The Plaintiff claimed she felt she had no choice but to move with the Defendants in March 2015. After moving she said she found it difficult to get reception on her mobile phone or on the “Vital-Call” emergency medical system she wore around her neck. In early June 2015 the Plaintiff said she left the Lewis Ponds Property with her two daughters Ms Vicki Ann Rogan and Ms Gloria Fay McCormack.

88. In cross-examination the Plaintiff accepted she signed the Deed and the appointment of enduring power of attorney and enduring guardian on 4 October 2011 (T8/25-50). She said that when in her affidavit she used the word “engrossed” it meant she signed the Deed in about October 2011 (T9/5-14).

89. She repeated she signed the Deed to her recollection on 4 October 2011 (T9/20-41). She said she went and saw an independent solicitor Mr Rogers on the same date, 4 October 2011, and that she was quite sure about this because she kept a diary (T10/49-T11/11). When shown a document suggesting her appointment with Mr Rogers was on 5 October 2011, she said that could be correct, however her recollection was she went the same day (T11/31-37). She accepted she spoke to Mr Rogers about the Deed and that it was just she and him alone in the office (T13/19-29).

90. She did not accept the addition of “or some other suitable accommodation for Faith, the carers and their family” was inserted into clause 1 of the Deed after the morning of 4 October 2011, because she said she understood it was there all the time (T15/18-22).

91. She denied that she did not sign the Deed on the morning of 4 October 2011, and denied that she signed it only when she went to Mr Rogers’ office (T16/24-32). However she accepted the addition of “or some other suitable accommodation” would have been a reference to something she wanted in the document (T16/49-T17/2). She however said she would not have pictured living anywhere other than the Orange Property because she would not at her age move anywhere else unless her health deteriorated (T17/4-41).

92. She asserted that on a number of occasions the Defendants told her “you must not tell Vicki and Gloria about our arrangement” (T19/35-37). She denied it was actually she who said this (T19/39-T20/3).

93. She accepted that if she died whilst they were living at the Orange Property the Defendants would get to keep the house (T21/12-19). She asserted it was the case the Defendants did not allow her to invite Ms Vicki Ann Rogan and Ms Gloria Fay McCormack to their house (T22/30-32). She said she could not remember a conversation in which she said the Orange Property would be a stepping stone (T22/48-T23/1). She denied that Lewis Ponds was horse country, however accepted in around 2014 if she had an opportunity she would look through real estate advertisements for properties out of town (T24/1-20). She said in the long-term she was open to the possibility of moving out of town (T24/25-26).

94. The Plaintiff said she did go past to look at the Lewis Ponds Property before she moved into it, and accepted she walked around the full perimeter of the property but that this was after they were moving in the end of February (T24/36-T25/2). She said she did tell the Defendants she did not want to move to Lewis Ponds, and denied she was enthusiastic to move there (T25/4-19). She denied the Defendants’ account of a conversation where she refused to accept repayment of the $220,000 contribution (T25/25-T26/2).

95. She denied it was only after she moved to Lewis Ponds that she did not like it (T26/4-6) and said she had told the Defendants right from the beginning she did not like it (T26/8-12). She denied she did not tell the Defendants she could not get “Vital-Call” reception at the Lewis Ponds Property and said she did not know the Defendants had bought a landline so that she could use it (T26/21-T27/15).

96. She denied the Defendants offered to pay her rent if she moved out (T27/42-44).

97. In re-examination the Plaintiff confirmed she walked the entire fence of the Property in late February 2015 (T29/27-31). She said there was a certain amount of bullying going on by the Defendants because they would take her “out to the open area” and she would get “roasted” by them as a “gradual intimidation” (T30/44-T31/47). She said this happened at the Orange Property (T31/49-50).

Ms Gloria Fay McCormack

98. Ms McCormack swore one affidavit on 5 June 2018.

99. Her evidence on the date of 8 June 2015 was that the Plaintiff, her sister Ms Vicki Ann Rogan and herself drove to the Lewis Ponds Property where they had dinner with the Defendants, Ms Helen Grace Chevalley and the Defendants’ three daughters.

100. Ms McCormack stated in this affidavit:

We then drove to Lewis Ponds. We had dinner with John and Fiona at their house. My other sister Grace, and John and Fiona’s three daughters were also there. There was a lot of discussion regarding Mum’s impending move from Lewis Ponds to Inverell. John and Fiona said to us words to the effect: “We had no idea that Mum was so unhappy living here at Lewis Ponds”. I replied with words to the effect: “We could tell she was unhappy and we live eight hours drive away. Surely you would have known she was unhappy, living in the same house.”

101. In cross-examination Ms McCormack said she could not recall the Second Defendant offering to rent a house in Orange for the Plaintiff to live in, and largely said she could not recall the Defendants’ version of events of when the Plaintiff left the Lewis Ponds Property with a removalist truck (T34/1-43).

Ms Vicki Ann Rogan

102. Ms Rogan swore one affidavit on 7 June 2018.

103. In this affidavit Ms Rogan stated she was not on good terms with the Second Defendant as they had not spoken to each other for many years. She stated towards the end of 2014 the Plaintiff called her and was upset and crying. She stated the Plaintiff said to her words to the effect: “John and Fiona want to move to Lewis Ponds. It is not a good place for me. It is very isolated. It is at least a 30 minute drive to Orange along a narrow and windy road. There is no public transport”.

104. In June 2015, Ms Rogan described how she and her sister Ms Gloria Fay McCormack arranged for a removalist truck to come and assist their mother the Plaintiff move from the Lewis Ponds Property. Ms Rogan stated:

We arranged a removalist truck for Mum. We spent the Tuesday night at John and Fiona’s place at Lewis Ponds. That evening we spoke to John and Fiona. They said to us words to the effect: “We had not idea Mum was not happy here.” I said to them words to the effect: “We live ten hours drive away. We could tell that Mum was not happy.”

John and Fiona became angry and their tone of voice abusive. They said to Mum words to the effect: “You should have said something. You did not say anything!”

The following morning we packed Mum’s belongings into the removalist truck. Gloria said to John and Fiona words to the effect: “You need to refinance or whatever else, and give Mum her money back.” John replied with words to the effect: “We’ll see you in Court.”

105. In cross-examination Ms Rogan said her mother the Plaintiff called her in 2015 and said she did not like living at Lewis Ponds (T37/4-6). She said she assisted her mother to revoke a power of attorney with the Defendants (T37/33-48). She said in December 2014 the Plaintiff told her she was not happy (T38/8-10). She affirmed that on 8 June 2015 on her evidence the Defendants raised their voice with the Plaintiff (T38/30-41). She denied it was not true that the First Defendant said “we’ll see you in court” (T39/1-2).

Plaintiff’s Expert Evidence: Ms Janelle Brunner

106. Ms Janelle Brunner swore one affidavit on 25 July 2018 stating she is a real estate agent and since September 2015 worked at L J Hooker Orange as a Sales Agent.

107. She attached a report providing a kerbside appraisal of the Lewis Ponds Property, which took into consideration comparable properties in the area, estimating a price of $700,000 to $800,000.

108. In cross-examination Ms Brunner confirmed she had been a sales agent since September 2015 and before that worked in local government administration (T49/39-47). She said she was not a licensed real estate agent but worked under one (T50/9-25). She said her qualifications involved a four day intensive course in Sydney (T50/49-50). She said she was currently doing her licensing course (T51/32-39).

109. She accepted she had no basis really to apportion any value to the assets of the Lewis Ponds Property (T53/33-37). She agreed there is really no basis other than speculative optimism to say that the Lewis Ponds Property would sell towards the top end of her price bracket of $800,000 (T53/39-49).

Defendants’ Lay Evidence

Mr John David Lindsay (First Defendant)

110. The First Defendant swore one affidavit on 20 July 2018.

111. He described how he was born on 12 December 1969 and married the Second Defendant. They have three daughters. He said he studied in Queensland and worked as a teacher in Orange.

112. He described how the Plaintiff sold her house in Grafton and moved into the Defendants’ house they were renting in Orange. He described how in approximately September or October 2011 the Plaintiff deposited $200,000 and then a further $20,000 into his account, but said he could not remember why the additional $20,000 was necessary. He described how the family entered into the Deed, but said the Plaintiff did not sign the Deed at any of the conferences at which he was present. He said the Defendants then purchased the Orange Property on 1 December 2011.

113. The First Defendant described how the Plaintiff would regularly make comments to the effect that the Orange Property was a “stepping stone … we will be able to sell and buy a property where we can have Jack with us”, Jack being a horse she owned.

114. He said he recalled the Plaintiff looking through real estate advertisements for rural properties on numerous occasions during 2013 and 2014. Although he said he could not recall the date, he remembered talking to the Plaintiff stating they should move to a property not more than 20 to 25 kilometres out of town. He said they did not find a suitable property immediately but looked at the Lewis Ponds Property in or around the end of 2013.

110. He said he and his wife arranged to inspect the property with Mr Wilba Thornberry and observed:

… when the time came we took Fay with us. I remember from observing Fay’s excited demeanour during that first inspection that she was quite impressed, she pointed out spring fed dams, the large size of the shed, the view, the sand yard for horses, and good repair of the house. When the three of us discussed it afterwards I remember her saying words to the effect of “It ticks the vast majority of the boxes”.

I remember that I took Fay out to visit the property two more times. On one occasion Fay walked the entire boundary fence. She said to me words to the effect of: “I want to make sure that the fences are suitable for the horses”. When she had finished the walk she said words to the effect of “The fences are good”. She appeared quite satisfied with the property.

116. The First Defendant said he negotiated with Mr Thornberry directly to purchase the Lewis Ponds Property, where they negotiated for $640,000 and shook hands. He said during the end of 2014 and into early 2015 they prepared the Orange Property for sale so that they could buy the Lewis Ponds Property.

117. He said on the day prior to placing the Orange Property on the market he had a conversation with the Plaintiff to the following effect:

First Defendant: Fay, do you want your money back? If you do we can stop the sale, cancel the purchase and look to refinance so we can give it back.

Plaintiff: It was always our plan to move to a property.

First Defendant: Yes it was, is it still yours?

Plaintiff: Yes.

First Defendant: Are you absolutely sure because we won’t be able give [sic] the money back if we sell here and buy at Lewis Ponds?

Plaintiff: Yes, I’m sure.

118. He said at no time did the Plaintiff ever say to him that she was in any way unhappy about the move and did not want to live in the Lewis Ponds Property. After they had been living in Lewis Ponds for six weeks, the Plaintiff left for a holiday, and he was shocked to hear from his wife the Plaintiff had decided to move out.

119. He recounted the conversation when the Plaintiff left with the removalists (admitted subject to s 136 of the Evidence Act 1995 (NSW)):

Second Defendant: Are you sure you want to do this? We could rent Yvette’s house in East Orange for you? She is moving to Mudgee.

Plaintiff: No, I don’t want to move in there.

Second Defendant: Can we contribute towards the rent wherever you are staying?

Plaintiff: No, I want all of my money back.

…

First Defendant: No, we are already mortgaged to the limit. If we have to pay it back we would have to sell.

Plaintiff: I’ve never wanted you to sell.

First Defendant: Well I can’t give you the money back.

120. The First Defendant then referred to the affidavit evidence of the Plaintiff of 4 June 2018 and the affidavit evidence of Ms Vicki Ann Rogan and Ms Gloria Fay McCormack denying their versions of the conversations.

121. In cross-examination the First Defendant said he was an industrial technology teacher and had trained as a marine biologist (T102/34-44). He agreed the Plaintiff provided the Defendants with money and that they would look after her (T105/1-37). He said this broad agreement arose out of discussions in August 2011 (T106/4-9). He did not recall why the $20,000 extra paid to him was necessary (T107/30-44).

122. He said in about 2014 the Defendants and the Plaintiff turned their mind to moving to a rural property (T111/34-41). He accepted by late 2014 he had had a pretty serious discussion with Mr Thornberry about buying the Lewis Ponds Property (T112/6-12). He said he considered the handshake agreement with him seriously (T112/26-27). He said he had a second job as a courier in addition to being a teacher (T114/7-14). He said he would not call the road from Lewis Ponds to Orange narrow and winding and said he quite enjoyed the road but he enjoys driving (T116/36-38). He asserted in early 2015 he had a conversation with the Plaintiff that they could have refinanced the Orange Property, but accepted he did not know with certainty that refinance was possible (T120/23-45). He said they would do their best if it involved doubling their mortgage (T121/12-15).

123. He denied saying “we’ll see you in court” but accepted Ms Gloria Fay McCormack and Ms Vicki Ann Rogan suggested the Defendants should organise to pay the Plaintiff back (T122/15-27). He denied knowledge of some suggestion that the Plaintiff was to only contact their children through solicitors (T123/1-13).

Ms Fiona Judy Lindsay (Second Defendant)

124. The Second Defendant swore one affidavit on 20 July 2018.

125. She described how she was born on 11 March 1974 and married the First Defendant on 2 September 2000. The couple have three children: Seaanna and Erika twins born 12 February 1999 and Domineque born on 15 September 2009.

126. She described how in 2010 she and her husband and the family moved to Orange and lived in a rental property. She said since the twins were born she had had discussions with the Plaintiff about living close to them. She said she recalled she and her husband having a conversation with the Plaintiff in or around August 2011 to the following effect:

Second Defendant: In order for us to see a broker and get a loan we need to know what kind of money you were thinking of giving to us.

Plaintiff: I would like to give you $200,000.

Plaintiff: I want to give the money to John because if I die I don’t want your sisters to get their hands on it or for you to lose your house.

127. She described how the Plaintiff’s house sold in September 2011, and how they entered into the Deed in October 2011. She said she took the Plaintiff to Campbell Paton & Taylor for independent legal advice but did not go into the appointment with her.

128. The Second Defendant said that prior to the Defendants purchasing the Orange Property, they brought the Plaintiff with them to have a look at the house, wherein the Plaintiff said “[t]his house is a stepping stone for us to get some equity and then hopefully down the track buy some land out of town”.

129. In or around 2012, the Second Defendant asserted she had a conversation with Mr Wilba Thornberry with the Plaintiff present, where Mr Thornberry talked about his place at Lewis Ponds and said “it sounds like it would be perfect for you”. She said she inspected the Lewis Ponds Property, and afterwards the Plaintiff said to her “the house is beautiful, it’s got everything we need, room for the horses, with a sand yard for them, and a big shed for John”. She said shortly afterwards she shook hands with Mr Thornberry to purchase the property. She said at no stage did the Plaintiff object.

130. The Second Defendant further deposed to the following conversation between herself and the First Defendant (admitted subject to s 136 of the Evidence Act 1995 (NSW)):

First Defendant: Do you think I should offer to give the money back?

Second Defendant: I think we should give her the option. She gave it to you so it should be you that asks her.

First Defendant: It would put our plans back but if she wants it back we can probably refinance.

131. She said it was a surprise that after moving into the Lewis Ponds Property the Plaintiff called her and said “it’s not working, I’m moving out”.

132. Her account of the conversation when the Plaintiff left the Lewis Ponds Property is as follows:

Second Defendant: Are you sure you want to do this? We could rent Yvette’s place in East Orange for you?

Plaintiff: Yes I’m sure. It’s only a three month trial anyway and we will still visit.

…

Plaintiff: You need to learn to love and care for me.

133. The remainder of the Second Defendant’s affidavit largely responded to the Plaintiff’s evidence and consisted in large parts of corrections and denials of aspects of the evidence.

134. In cross-examination the Second Defendant did not dispute that $220,000 was paid by the Plaintiff into her husband’s account for the purchase of the Orange Property (T76/21-27). She was not sure why the $20,000 was necessary (T77/49-50). She accepted she signed the Deed and it effected a conditional gift of the Plaintiff to the Defendants in exchange for them allowing her to live with them and care for her (T80/1-T81/40). She said they had always discussed acquiring a rural property (T82/44-47).

135. She accepted she and her husband had taken the handshake agreement with Mr Thornberry seriously (T85/1-13). She confirmed after the handshake deal they placed the Orange Property on the market, then settled the contract of sale which occurred on 13 March 2015 (T86/30-37). She confirmed she is an equal owner and mortgagee of the Lewis Ponds Property (T87/17-24). She agreed there are no facilities such as shops or a doctor at Lewis Ponds (T88/20-45). She said you do get reception at the property (T89/23-32). She said she did not know about the “Vital-Call” machine (T89/46-48). She accepted that she started her new job shortly after moving to the Lewis Ponds Property leaving the Plaintiff on her own during weekdays (T91/9-44).

136. She asserted she and her husband had had an informal conversation with their mortgage broker in relation to refinancing their mortgage (T92/20-36). She denied her husband said “we’ll see you in court” (T93/6-7). She accepted the money was not provided to her unconditionally (T95/11-42). She accepted she had had a disagreement with her sisters Ms Gloria Fay McCormack and Ms Vicki Ann Rogan after her father’s death in 2010 (T97/10-12). She denied she had told the Plaintiff not to contact her children (T97/41-42). She said she had not facilitated discussions between her children and the Plaintiff (T98/7-8).

Ms Christine Rees

137. Ms Rees swore one affidavit on 20 July 2018. She said she had known the Defendants and the Plaintiff since 2007.

138. Ms Rees described how she visited the Orange Property in October 2014 for the Plaintiff’s 80th birthday. She asserted during this visit the Plaintiff said to her words to the effect: “we are looking to move to a property on several acres. I’m looking forward to it because we will be able to have our horses with us”.

139. Ms Rees said she next visited the parties at the Orange Property in December 2014, when she and her husband went together with the Defendants and Plaintiff and a friend Scotty to view the property the Defendants were looking to buy:

Both carloads of people viewed the property from the entrance fence, with Faith pointing out various different aspects of the property and its benefits.

140. Ms Rees said she visited the Orange Property again in February 2015 where the Plaintiff expressed to her that she was looking forward to moving to the Lewis Ponds Property and the space it would provide for the horses. She said she only found out about the Plaintiff leaving the Lewis Ponds Property in June 2015 when informed by the Second Defendant.

141. Ms Rees was not required for cross-examination.

Ms Erika Louise Robin Lindsay

142. Ms Lindsay swore one affidavit on 20 July 2018.

143. She said she is the daughter of the Defendants and the granddaughter of the Plaintiff. She was born on 12 February 1999.

144. She said she remembered she had a discussion with her sisters, her parents and her grandmother in around 2012 where they said to her words to the effect: “[w]e have a five year plan to onto [sic] acreage so we can have lots of room and have the horses with us”.

145. She said at some point in late 2014 the Defendants told her that they were looking at a property in Lewis Ponds, wherein one said to her words to the effect: “[w]e are going to look at Wilba’s place out at Lewis Ponds. I think it might be the right one for us”.

146. Ms Lindsay said in or around January 2015 she remembered the Plaintiff saying to her words to the effect: “I’m excited about the move. I’ll finally get to have Jack at my backdoor”. She said she never heard the Plaintiff say anything about the fact that she was unhappy living at Lewis Ponds.

147. Ms Lindsay was not required for cross-examination.

Ms Helen Grace Chevalley

148. Ms Chevalley swore one affidavit on 20 July 2018.

149. She outlined how she is the third daughter of the Plaintiff and sister of the Second Defendant.

150. Ms Chevalley described her interactions with the Plaintiff and her visits to the Plaintiff and the Defendants. She said in around the end of 2014 the Plaintiff called her and said words to the effect: “[w]e are looking at a rural property in Lewis Ponds. We can have the horses there and maybe some animals too. I can’t wait, it’s going to be great”.

151. She said she visited the Defendants and the Plaintiff in February 2015. She asserted that she and the Plaintiff were driving home after a visit, and on the way back the Plaintiff insisted that they go past the property at Lewis Ponds. On her evidence Ms Chevalley and the Plaintiff stopped at the boundary of the property where the Plaintiff pointed out the boundaries and said words to the effect: “[i]t’s going to be great for the horses. We are going to do a bit of work to make it perfect for them”.

152. Ms Chevalley said at no time before the family moved to Lewis Ponds did the Plaintiff ever say to her that she did not want to move there or that she was in any way unhappy about the move. When she and her late partner visited the Lewis Ponds Property Ms Chevalley said she observed the Plaintiff seemed happy and settled in and did not say anything about not having wanted to move.

153. The first she said she heard about the Plaintiff moving was on 5 June 2015.

154. Ms Chevalley was not required for cross-examination.

Ms Jodie Moes

155. Ms Moes swore one affidavit on 24 July 2018.

156. She described her relationship to the Plaintiff and the Defendants, and described how when the Plaintiff packed her belongings to move to the Lewis Ponds Property said words to the effect: “it’s a good property because I can work Jack out there and there is plenty of water”. She said she helped the parties move out to the property and observed the Plaintiff unpacking her belongings into the master bedroom.

157. Ms Moes was not required for cross-examination.

Defendants’ Expert Evidence: Mr Robert Arthur Nevins

158. Mr Nevins swore one affidavit on 30 August 2018 stating he is a licensed real estate agent and accredited auctioneer having been a real estate agent since June 1999.

159. He attached a report providing an onsite appraisal of the Lewis Ponds Property estimating a price of $690,000 to $710,000.

160. In cross-examination Mr Nevins accepted that when he made his report on 22 June 2018 he did not have in mind any of the obligations of the expert witness code of conduct (T59/30-33). He agreed his data for his estimation of median house price depreciation in the Lewis Ponds area of -1.5% was not explicitly based on data provided in his report (T61/4-9). He said he only ever evaluates properties as they are now, not what they may or may not be (T62/30-35). He accepted there were not many shops or doctors or other services at Lewis Ponds (T63/23-T64/7).

161. He said it was a winding and narrow road from the Lewis Ponds Property to Orange (T64/28-37). He said approximately 1.3km was gravel (T65/1-5).

162. In re-examination he said he took into account another neighbouring property which was being advertised for sale at 287 Post Office Lane when evaluating the Lewis Ponds Property (T69/10-29).

Consideration

163. The Plaintiff pleads that a charge should be created over the Lewis Ponds Property giving effect to an interest in the property, in the alternative she claims damages for a breach of the Deed.

164. The pleading asserts that the basis for the charge is representations made to her by the Defendants consisting of inducements and encouragements that she should expect they would look after her and allow her to live with them in the Orange Property. In the alternative the Plaintiff pleads breach of the Deed.

165. The Plaintiff has decided not to live with the Defendants at the Lewis Ponds Property. On the case as pleaded and conducted she did so unilaterally. No case is sought to be made of duress or undue influence.

166. There is a strong case to be put that the Deed entered into between the parties stipulated that the Plaintiff and Defendants were to live in Orange and this was an express requirement of the Deed and as a result of the representations as alleged. There would appear to be little controversy those representations were made to that effect.

167. That the parties intended Orange as the relevant location is supported by Recital B of the Deed which mentions living “with them in Orange” and clause 1 of the Deed that describes the $220,000 as a “conditional gift” to assist the Defendants in the purchase of the Orange Property “or some other suitable accommodation”. It is uncontroversial that this was what was discussed between the parties and it is clear the Deed was to be understood within the context of the parties living in Orange at the Orange Property (or some suitable accommodation “in Orange”).

168. However there is no doubt that the Plaintiff obtained independent legal advice before signing the Deed. Although the Plaintiff purported to say that in some way she did not understand the document she did not plead non est factum. The diary notes (CB 168-186) provided make it tolerably clear that the Plaintiff took the already signed Deed which was originally drafted by Mr Carpenter and went to see Mr Rogers solicitor. It is not entirely clear on the evidence who had signed the Deed prior to the meeting with Mr Rogers (CB 177). I am satisfied the latest version of the Deed included the proviso concerning “suitable accommodation” which was added in as a later addition to the Deed. The Plaintiff was cross-examined on whether she discussed with Mr Rogers the words “or some other suitable accommodation for Faith, the carers and their family” which she accepted (T16/34-36). Although not agreeing precisely that she wanted the “suitable accommodation” addition inserted into the document, the Plaintiff accepted this would have been what she wanted (T16/49-T17/2).

169. However beyond this the Deed is a curious document and a little on the cryptic side. For example, the Deed has no provisions for a mechanism for variation. It does not expressly define “Orange” and does not define “suitable accommodation” although it has to be for the Plaintiff and her Carers and their family. Nor does it provide a mechanism for how suitability is to be determined.

170. The Lewis Ponds Property does I am satisfied lie outside of Orange because it is at least 20 minutes’ drive away from Orange. In my assessment the Deed would have required the family to live in Orange, but that does not mean the Plaintiff could not resile from this requirement giving rise to an estoppel that binds her.

171. On the question of suitability, it is unnecessary given the estoppel noted above therefore to determine who decides upon suitability.

172. Nevertheless in my view “suitability” is to be determined by reference to suitability with respect to all the parties as a family or group of people. This is because clause 1 of the Deed expressly states “or some other suitable accommodation for Faith, the Carers and their family”. This in my view makes it clear that the Deed intended suitability to be determined by not solely the Plaintiff, but also by the Defendants and their family. This further suggests that neither faction nor party in these proceedings would have a power of veto. In my view clause 1 makes it clear that the Plaintiff would not have a power of veto.

173. I am further satisfied “suitability” is to be determined according to the parties living in Orange, as per my reasoning above.

174. Given the fact that clause 1 determines suitability according to the Plaintiff, the Defendants and their family it is also not in my view likely to be an “objective standard”. An objective standard for suitability in the Deed is a meaningless construction or interpretation because no standard for suitability is defined and no mechanism for formal resolution of suitability is provided. An objective standard is a meaningless construction because it does not clarify or explain how it would be possible to reconcile the disparate interests and needs of the Plaintiff, the Defendants and their family as to suitability objectively. It also contemplates the Plaintiff leaving the home and going into care.

163. However, as will be clear in my reasoning, in my assessment of the facts the Plaintiff did clearly encourage the Defendants to move to Lewis Ponds. This obviates the need to determine finally the correct construction of suitability as used in the Deed.

164. A further issue in this case is whether a charge should be placed over the Lewis Ponds Property. In support of her case that a charge should be placed over the property, the Plaintiff relies on the case of Morris v Morris [1982] 1 NSWLR 61 (“Morris v Morris”). In my view Morris v Morris bears little to no relationship to the circumstances of this case. Morris v Morris is a case where a widowed father gave $28,000 towards an extension to the home jointly owned by his son and daughter-in-law. The relationship between the family broke down, and McLelland J held that it would be unconscionable and inequitable “in the particular circumstances” for the defendants to retain the benefit of the plaintiff’s expenditure on their property free from any obligation or recoupment. His Honour ordered a charge over the property in question.

165. With respect, in my view, the decision in Morris v Morris is concise yet cryptic and of little utility to resolving the issues before me in this case. Morris v Morris and the cited case of Chalmers v Pardoe [1963] 1 WLR 677 (“Chalmers v Pardoe”) are decisions handed down prior to Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78, Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 and Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, which made it clear that fairness alone is not a satisfactory reason for ordering a constructive trust. It is not possible to decide a case simply on the test of fairness.

166. Furthermore, in Morris v Morris although finding it would be unconscionable or inequitable to allow the defendants to retain the benefit of the plaintiff’s expenditure in the circumstances, his Honour did not elucidate precisely what circumstances those were that led to unconscionability or inequitable consequences, over and above unfairness. Likewise the Privy Council in Chalmers v Pardoe determined the case according to “the circumstances in each case”. I am satisfied the circumstances of the case before me distinguishes them from Morris v Morris and Chalmers v Pardoe.

167. Importantly in any event, as will be clear below, in my view an estoppel operates to bind the Plaintiff to make the issue of equitable charges unnecessary to determine finally.

168. An alternative argument raised by the Defendants is that the Deed properly construed provided for the payment of $220,000 to the Defendants by the Plaintiff in consideration for the Defendants giving promises and undertakings to live with the Defendants in Orange, purchase the Orange Property, care for the Plaintiff and provide her financial assistance. Their argument is that upon giving these promises and undertakings, they satisfied their obligations under the Deed, and the payment of $220,000 was not subject to any further conditionality. Alternatively the Defendants submit even if a condition of the payment of the $220,000 has failed in the Deed, it does not lead to forfeiture of money in this case.

169. Although given my reasoning with respect to estoppel binding the Plaintiff renders my views as to these alternative arguments not strictly relevant, I do note in my view the Deed was intended by the parties to govern the relationships between the parties indefinitely. The Deed was intended to govern the living arrangements between the parties, including the circumstances of them living in Orange and the potential possibility that the Plaintiff would move into a care facility should she require that level of care (clause 8 of the Deed).

170. Therefore in my view the Deed is not a one-off document that provides purely for the purchase of the Orange Property and the making of promises or undertakings absent ongoing conditionality or obligations. It is not the case that the conditionality of the Deed has evaporated, and in my view the conditions of the Deed still continue, except for the estoppel binding the Plaintiff considered below with respect to the pre-Deed representations and the Deed. In this respect the alternative argument of the Defendants should fail.

171. A key question on the evidence is whether the Plaintiff agreed to move to the Lewis Ponds Property. The Plaintiff said she never wanted nor agreed to move, whereas the Defendants said she was enthusiastic and wanted to move. This is the key factual controversy of the case, as the Plaintiff asserts the Defendants moved to the Lewis Ponds Property over her protestations.

172. This is because in my view the key question is whether the Plaintiff should be precluded from reliance on the terms of the representations made and/or the Deed that requires that they live in Orange only. This is whether she is precluded by reason of her representations to the Defendants that she was happy to move to the Lewis Ponds Property, which they relied upon and acted in their detriment in purchasing the Lewis Ponds Property and entering into a larger mortgage secured by the property.

173. In summary I am satisfied that the Plaintiff agreed to move to the Lewis Ponds Property and that she did not protest prior to moving there. I am satisfied this is so for a number of reasons.

174. First, both the Defendants give evidence that the Plaintiff expressly agreed to move to the Lewis Ponds Property and was indeed enthusiastic about the move. There was nothing implausible about their accounts. I am satisfied their evidence should be accepted.

175. Secondly, the Defendants give evidence that they offered to return the $220,000 provided to them as a conditional gift by the Plaintiff before the move to the Lewis Ponds Property and that she refused this offer. Again I accept this evidence. Significantly the First Defendant was not cross-examined on his version of the terms of the conversation at [39] of his affidavit describing a conversation between himself and the Plaintiff where he offered refinancing and repayment of the $220,000 which was rejected by the Plaintiff (see, eg, T120/23-34). Furthermore the Plaintiff herself did not provide in any affidavit evidence which specifically responded to the affidavit evidence of the Defendants in any manner which denied or did not admit that evidence.

176. It is true the First Defendant was incorrect as to the Plaintiff’s payment of some school fees, however this case is not pleaded as a constructive trust by way of financial contributions per Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78. Overall my assessment was that the First Defendant was a credible witness, and the payment by the Plaintiff of school fees was a minor contribution in comparison to the overall fees paid which involved payments of between approximately $1,000 and $4,000 (CB 149-150). Further whilst the Plaintiff made some contribution to rates and other expenses she was living rent free.

177. Thirdly, it is clear that the Plaintiff did in fact move to the Lewis Ponds Property for a short time at least.

178. Fourthly, Ms Christine Rees, Ms Erika Lindsay, Ms Helen Grace Chevalley and Ms Jodie Moes all gave various versions of accounts that the Plaintiff was looking forward to the move. None of these witnesses were required for cross-examination by Counsel for the Plaintiff. It is incorrect to assert as the Plaintiff did that their evidence went nowhere, particularly in the absence of cross-examination. If a Court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross examination so that the witness may have an opportunity to offer an explanation: Browne v Dunn (1893) 6 ER 67.

179. Fifthly, and importantly both Ms Gloria Fay McCormack and Ms Vicki Ann Rogan provided evidence for the Plaintiff regarding a critical exchange that occurred between the Plaintiff and the Defendants on her final days at the Lewis Ponds Property before moving out. Both Ms McCormack and Ms Rogan deposed to conversations where the Defendants said words to the effect “we had no idea” that the Plaintiff was unhappy living at Lewis Ponds or did not want to move there.

180. Ms McCormack described a dinner where the Plaintiff and Defendants were present and where the Defendants said words to the effect: “[w]e had no idea that Mum was so unhappy living here at Lewis Ponds”. Likewise Ms Rogan deposed to the Defendants saying to the Plaintiff at the time words to the effect: “[y]ou should have said something. You did not say anything!”

181. Neither Ms McCormack nor Ms Rogan described the Plaintiff responding to these statements or denying this was not the case at the time of the conversation. Unsurprisingly neither Ms McCormack nor Ms Rogan were cross-examined on these statements to suggest they were untruthful.

182. Sixthly, there is ample evidence that the Plaintiff walked around the Lewis Ponds Property in its entirety or at least visited the property before the parties moved there. In this regard the chronology is against the Plaintiff.

183. Seventhly, the position in my assessment of the evidence is that the only person providing clear evidence of her protestations before the move to Lewis Ponds is that of the Plaintiff and this is not corroborated by any contemporaneous document or other witness.

184. In my view the evidence simply does not corroborate the Plaintiff’s case that she took objection to moving to the Lewis Ponds Property as somehow contrary to her wishes or contrary to the requirements of the Deed. I am satisfied that on the evidence the Plaintiff knew of the Lewis Ponds Property before purchase, walked around the boundary of the property, saw the property before the purchase and was indeed enthusiastic about the purchase and move to the property. In the absence of contemporaneous documentation and a direct contest between the parties over the evidence, the corroboration of Ms McCormack, Ms Rogan and the witnesses for the Defendants provide multiple accounts that satisfy me that at the very least the Plaintiff did not voice objection to the purchase and move to the Lewis Ponds Property. Indeed I am satisfied she encouraged the move.

185. On balance I am of the view the Defendants’ evidence as to the move to Lewis Ponds Property is to be preferred over the evidence of the Plaintiff.

186. I am therefore satisfied the Plaintiff represented to the Defendants that she in effect would not rely upon the pre-Deed representations nor on the requirement of the Deed that they live in Orange. The initial foundation of the Plaintiff’s case is therefore in my view incorrect and contrary to the evidence of the proceedings. There is little doubt that the entire case of the Plaintiff rests substantially on her evidence that she made protestations, and as is clear above in my view this is incorrect. Her allegation of an amount of bullying was made only in the witness box and was not otherwise referred to in her affidavit evidence. I am of the view she greatly exaggerated the situation, such as to make her belated allegations incredible.

187. Another factor I note is that the Plaintiff appeared to me both in the witness box and on the evidence to be an independent and forthright individual. She raised young children as a single woman and whilst she has had some health issues she is reasonably healthy for her age. There is no evidence of cognitive impairment on the part of the Plaintiff. As I have said, in re-examination she gave evidence about some apparent bullying of her by the Defendants. However it is relevant as I have already reiterated that there is no pleading of duress, undue influence or unconscionability by the Plaintiff against the Defendants.

188. In my view, the foremost question on the facts is whether the conduct of the Plaintiff gives rise to some equitable estoppel because of representation, reliance or detriment. This is an answer to both the charge by way of representation, and damages by way of breach of Deed, pleaded by the Plaintiff.

189. In particular, I am satisfied an estoppel should operate to bind the Plaintiff. I am satisfied the Defendants did rely upon the representations made by the Plaintiff as part of the reason why they purchased and moved to the Lewis Ponds Property. Their evidence which I accept is that they relied on the belief encouraged by the Plaintiff that she wanted to move to the Lewis Ponds Property and that this belief was a significant motivating factor in their decision to move to that specific property and incur the mortgage commitment.

190. The detriment suffered by the Defendants was that they purchased the Lewis Ponds Property and entered into a larger mortgage to finance the purchase of the property.

191. Whilst it is true that on the proper construction of the Deed and the pre-Deed representations the Plaintiff would in my view have been entitled to require them to live in Orange. However she in turn represented to them that she would not insist upon them adhering to this precise and specific requirement in return for her gift.

192. I am therefore satisfied the doctrine of equitable estoppel in this case applies to vindicate the expectations of the Defendants against the Plaintiff who now seeks to unconscionably resile from the expectation that she had created that she would not insist on the pre-Deed representations and the Deed’s requirement that they live in Orange. On the evidence as I have found it the Plaintiff supported, encouraged and was enthusiastic about the move to Lewis Ponds. She raised no objections prior to the move, and indeed satisfied herself with the suitability of the Lewis Ponds Property by walking around it. Her withdrawal from the arrangement between the Defendants and her decision to move out of Lewis Ponds was unilateral and entirely unexpected. It would be unconscionable to allow the Plaintiff to resile from her representations to the Defendants that she would not insist upon the pre-Deed representations and Deed requirements that they live in Orange and thereby unwind the family’s affairs and thereby unilaterally insist on repayment of her contribution. As I have said I am of the view the Defendants relied on these representations to their detriment to the extent that it would be unconscionable to allow her to resile from them: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [77]-[78].

193. After all the arrangement between the parties was clearly intended to suit not just the Plaintiff, but also the Defendants and their family. Although the Plaintiff made contributions to some school fees and the likes this does not detract from my findings. I am satisfied the Defendants’ defence by way of equitable estoppel is made out.

194. Therefore the Plaintiff is estopped from requiring repayment of the $220,000 on the grounds of breach of the Deed or the pre-Deed representations as no breach other than moving out of Orange is in issue in the case. There is no issue that it was the Plaintiff’s choice not to live with the Defendants and it is her choice not to require them to care for her needs as provided for in the Deed or as effected by any representations by the Defendants. She has unilaterally withdrawn from and abandoned that arrangement.

195. The evidence of the experts is not relevant in light of my findings because I am not inclined to order a charge or relief in favour of the Plaintiff. In any event I would not prefer one expert over another. Both have their advantages and disadvantages with respect to qualifications and comparables. Both were equally underwhelming.

Conclusion

208. In the light of my findings, I am of the view the Plaintiff should be estopped from challenging the move to the Lewis Ponds Property.

209. I would dismiss the Plaintiff’s claim in its entirety.

210. I would invite the parties to provide short minutes to my Associate. I will hear the parties on the issue of costs if they cannot be agreed.

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Decision last updated: 28 September 2018