Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (No 2)

[2019] NSWSC 948

Supreme Court

New South Wales

Medium Neutral Citation:

Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (No 2) [2019] NSWSC 948

Hearing dates:

29, 30, 31 January; 1, 4 February; 5, 6 March;18 March 2018; 24 June 2019

Decision date:

31 July 2019

Jurisdiction:

Equity

Before:

Emmett AJA

Decision:

1. Proceedings dismissed.
2. Plaintiff to pay the defendants’ costs of the proceedings.

Catchwords:

SUCCESSION – whether the Deceased’s half share in the Stanmore Property is held on trust for the plaintiff either by the first defendant or the second defendant – whether the plaintiff should be registered as tenant-in-common of the Stanmore Property with the second defendant in equal shares.

  ESTOPPEL – proprietary estoppel by encouragement – whether the second defendant impliedly accepted any communication by the Deceased of her intention that her half share in the Stanmore Property was to be disposed of by the second defendant to the plaintiff – whether the plaintiff relied upon any such promise, representation or acquiescence – whether it would be unconscionable for the second defendant to assert his entitlement to the Deceased’s half share of the Stanmore Property under the Will – whether he is therefore estopped from asserting his entitlement under the Will.

Legislation Cited:

Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Real Property Act 1900 (NSW)

Cases Cited:

Grundt v Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641
Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

Maria Coppola (Plaintiff)
New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (First Defendant)
Carmelo Buda by his Tutor New South Wales Trustee and Guardian (Second Defendant)

Representation:

Counsel:

 

P W Bates (Plaintiff)
G J Smith (First Defendant)
S Clemmett (Second Defendant)

  Solicitors:
Margiotta Solicitors & Attorneys (Plaintiff)
Lane & O’Rourke (First Defendant)
Zucker Legal (Second Defendant)

File Number(s):

2016/00377444

Judgment

Introduction

1. These proceedings are concerned with the estate of the late Giuseppina Buda (the Deceased), who died on 9 August 2005. The plaintiff, Maria Coppola (Maria), the daughter of the Deceased, claims that she is entitled to an undivided moiety in a property situated on Stanmore Road, Stanmore (the Stanmore Property). Prior to 28 August 2003, the Property was owned as to an undivided half share by the Deceased and as to an undivided half share by Salvatore Buda (Salvatore), a son of the Deceased. Salvatore died on 28 August 2003. At the date of death of the Deceased, the proprietors of the Property, as shown on the register maintained under the Real Property Act 1900 (NSW), were the Deceased and Salvatore as tenants-in-common in equal shares. Maria’s claim relates to the half share owned by the Deceased.

2. By her will dated 10 July 2001 (the Will), the Deceased appointed Maria and the second defendant, Carmelo Buda (Carmelo), another son of the Deceased, as co-executors of the Will. On 29 December 2005, probate of the Will was granted to Maria and Carmelo. However, on 24 October 2016, Lindsay J ordered that the grant of probate to Maria and Carmelo be revoked and ordered that letters of administration C.T.A. [1] be granted to the first defendant, New South Wales Trustee and Guardian (NSW Trustee). That step appears to have been taken because Maria wished to make a claim under the Family Provision Act 1982 (NSW) (the Family Provision Act), which was in force at the date of the death of the Deceased. Carmelo is incapable of acting as an executor. I shall refer to those matters below.

   1. “Cum Testamento Annexo” is Latin for “with the will annexed”. The term is applied to administration granted where a testator makes an incomplete will, without naming any executors, or where the executors named are incapable or refuse to act.

3. By the Will, the Deceased gave:

• to Carmelo, her half share in the Stanmore Property, subject to Carmelo paying $50,000 to Salvatore;

• to Maria, the whole of her interest in a property situated in Wilson Drive, Colo Vale (the Colo Vale Property), subject to Maria paying $50,000 to Salvatore;

• to Maria, all of her jewellery; and

• to Carmelo, the residue of her estate.

Following the grant of probate of the Will, the Colo Vale Property was transmitted to Maria by Carmelo and Maria as co-executors. The only asset still remaining in the unadministered estate of the Deceased is her interest in the Stanmore Property. While it is common ground that the sum of $50,000 was paid to Salvatore in relation to the Stanmore Property, no steps have been taken to arrange for the transmission to Carmelo of the Deceased’s interest in the Stanmore Property in accordance with the Will. There are debts and liabilities that have been incurred in connection with the administration of the estate that remain to be paid.

4. Originally, the only relief claimed by Maria, when these proceedings were commenced on 16 December 2016, was an order under the Family Provision Act. NSW Trustee was the only defendant, as the legal personal representative of the Deceased. However, that relief is no longer sought. Rather, in the proceedings as presently constituted, Maria now claims a declaration of trust in respect of the half share in the Stanmore Property that was devised to Carmelo under the Will. In light of that relief, Carmelo was joined as a defendant.

5. Because of mental illness on the part of Carmelo, Vanessa Coppola (Vanessa) had been appointed as financial manager of Carmelo’s estate. Vanessa is Maria’s daughter. However, Vanessa is in a position of conflict in the proceedings, in that she has sworn an affidavit in support of her mother's claim against Carmelo in relation to the Stanmore Property. For some months there had been negotiations between the representatives of Maria and NSW Trustee with a view to the appointment of a guardian ad litem in relation to the estate of Carmelo, for the purposes of these proceedings.

6. In order to bring matters to a head, NSW Trustee, by a notice of motion filed on 18 June 2018, sought the removal of Vanessa[2] and the appointment of NSW Trustee in her stead. [3] After some discussion agreement was reached between Vanessa and NSW Trustee, whereby Vanessa was removed as financial manager of Carmelo’s estate and NSW Trustee was appointed in her stead. Counsel for Vanessa indicated to the Court that she would consent to orders to that effect on the understanding that, when these proceedings are finally resolved, she would seek to be reinstated as financial manager of Carmelo's estate. Counsel for NSW Trustee indicated that there may be no opposition to that course. However, that is a matter for consideration at the time when any such application is made.

   2. An order pursuant to s 41 of the Guardian Act and s 47 of the Interpretation Act.

   3. An order pursuant to s 41(b) of the Guardian Act and s 47 of the Interpretation Act.

7. On 24 July 2018, orders were made as follows:

1. A declaration, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW) (the Guardian Act), that Carmelo remains incapable of managing his affairs.

2. An order that the estate of Carmelo remain subject to management under the Guardian Act.

3. An order, pursuant to s 41 of the Guardian Act and s 47 of the Interpretation Act 1987 (NSW) (the Interpretation Act), that Vanessa be removed as manager of the estate of Carmelo.

4. An order, pursuant to s 41(b) of the Guardian Act and s 47 of the Interpretation Act, that NSW Trustee be appointed manager of the estate of Carmelo.

5. An order, pursuant to s 64 of the Guardian Act, that Vanessa take such steps as may be necessary or expedient to transfer management of the estate of Carmelo from herself to NSW Trustee.

Thus, NSW Trustee now acts as guardian ad litem for Carmelo, as well as being the first defendant as legal personal representative of the Deceased.

The Family Provision Act Claim

8. As I have said, when Maria commenced these proceedings, the only claim was for an order under the Family Provision Act. In the event, Maria abandoned that claim after she had amended her claims to include the prayers for relief set out above. It is highly significant that, when the proceedings were initially commenced, there was no suggestion that the Deceased held her interest in the Stanmore Property on behalf of Maria.

9. As one of the two surviving adult children of the Deceased, Maria received the majority of the deceased’s estate at a time when she and her husband owned their own home and multiple other properties. Further, the claim was bought more than 11 years after the death of the Deceased and more than ten years out of time. In addition, Maria failed to disclose fully and frankly her financial circumstances and failed to produce documents pursuant to notices to produce.

10. Nevertheless, Maria contends that there should be no order as to the reserved costs of the family provision claim. Section 33 of the Family Provision Act relevantly provides that the Court may order that the costs of or incidental to proceedings under the Family Provision Act in relation to the estate of a deceased person be paid out of the estate of the deceased person in such manner as the Court thinks fit. [4] However, the Court is not to order that the whole or any part of the costs in respect of an application in relation to a deceased person made by a child of the deceased person[5] be paid out of the estate of the deceased person by reason only of the fact that the applicant is a child or the fact that the Court has made an order for provision in favour of that child on the application.

    4. Family Provision Act, s 33(1).

    5. Family Provision Act s 33(3), with “eligible person” defined in s 6(1) of the Act to be a “child of the deceased”.

11. Clearly the claim under the Family Provision Act was doomed to fail. There is no reason why NSW Trustee’s costs of resisting the claim for an order under the Family Provision Act should not be borne by Maria.

The Trust Claim

12. By her second further amended statement of claim, filed on 31 January 2019, Maria claims:

1.   a declaration that NSW Trustee or Carmelo holds the one half share of the Deceased in the Stanmore Property on trust for her benefit; and

2.   an order that NSW Trustee and/or Carmelo take all necessary steps to enable Maria to be registered as tenant-in-common of the Stanmore Property with Carmelo in equal shares.

13. The allegations in support of those prayers for relief, as made in the second further amended statement of claim, may be restated as follows:

1. In or around the last six months of her life, the Deceased communicated to Carmelo her intention that her one half share in the Property devised to him under the Will was to be disposed of by him to Maria (the Deceased’s intention);

2. Carmelo expressly promised and/or represented orally to the Deceased and Maria that he, Carmelo, would carry out the Deceased’s intention (Carmelo’s promise);

3. By the Deceased’s conduct of accepting and not disputing the solemn promises made by Carmelo in the presence of the Deceased and Maria and in circumstances where the Deceased and Maria each relied on Carmelo’s promises and representations, as Carmelo intended, the Deceased herself made and/or adopted each of the promises and/or representations to Maria alleged in para (ii);

4. Alternatively, Carmelo impliedly accepted the communication of the Deceased’s intention by his acquiescence or silence (Carmelo’s acquiescence);

5. The Deceased relied upon Carmelo’s promise or Carmelo’s acquiescence in not revoking the Will and making a different will disposing of her half share in the Stanmore Property to Maria;

6. In reliance upon the Deceased’s promises and/or representations and/or encouragement, as referred to above, and/or Carmelo’s promises and representations and/or encouragement as referred to above, Maria:

(a)   took no steps to arrange for the Deceased to execute a codicil to the Will or to make a new will so as to leave the Deceased’s half share in the Stanmore Property to Maria;

(b)   continued to care for the Deceased in her own home irrespective of whether the Deceased executed a codicil or a new will;

(c)   did not obtain legal advice prior to December 2015 to ensure she would receive a half share of the Stanmore Property;

(d)   took no action in respect of the transfer of the Stanmore Property to Carmelo or to herself;

(e)   took no steps to receive income from the Stanmore Property after Carmelo rented it out;

(f)   cared for Carmelo at her home and continues to care for Carmelo after he became unwell in 2012;

(g)   cared for Carmelo’s daughters in her home and continues to care for Carmelo’s daughters after he became unwell in 2012;

(h)   did not receive rent or contribution to outgoings to her home from Carmelo and his daughters between 2012 and the appointment of Martin Fowler as Carmelo’s financial manager;

(i)   received an allowance from Carmelo’s financial manager in the period from 2014 until the re-appointment of NSW Trustee as Carmelo’s financial manager;

(j)   has not received rent or contribution to outgoings for her home from Carmelo or his daughters after the appointment of NSW Trustee as Carmelo’s financial manager.

7. In the circumstances outlined above, the Deceased’s half share in the Stanmore Property is held on trust by NSW Trustee for the benefit of Maria (the Trust);

8. Under the Trust, NSW Trustee is in good conscience precluded from taking any steps to dispose of the Deceased’s half share in the Stanmore Property to Carmelo where to do so would be a fraud on the Deceased;

9. Under the Trust, Maria is immediately entitled to become registered as tenant-in-common of the Stanmore Property together with Carmelo in equal shares;

10. Under the Trust, NSW Trustee is impliedly obliged to take all steps necessary to enable Maria to be registered as tenant-in-common of the Stanmore Property with Carmelo in equal shares; and

11. Maria relied on Carmelo’s promise to the Deceased and to her that he would give Maria the Deceased’s one half share in the Stanmore Property that the Deceased left to Carmelo in the Will.

14. I am not persuaded that Carmelo impliedly accepted any communication by the Deceased of her intention that her half share in the Stanmore Property was to be disposed of by Carmelo to Maria, by acquiescence or silence or otherwise. I am not persuaded that the Deceased relied upon any promise, representation or acquiescence on the part of Carmelo in not revoking the Will and disposing of her half share in the Stanmore Property to Maria. Since there was no promise, representation, encouragement or acquiescence on the part of Carmelo, there can be no finding that Maria in some way acted to her detriment in reliance upon any such promise, representation, encouragement or acquiescence by Carmelo.

15. Accordingly, Maria has failed to establish her claim that the Deceased’s half share in the Stanmore Property is held on trust for her either by NSW Trustee, as legal personal representative of the Deceased, or by Carmelo. My reasons for that conclusion follow. First, however, I shall say something about the evidence.

The Evidence

16. Initially, Maria’s case was to be supported almost in its entirety by affidavits sworn by Maria, her daughters, Vanessa and Gabriella Farmakis (Gabriella), and Ms Keilini Sellick, a neighbour of the Deceased. The critical material in support of Maria’s case consisted of affidavit evidence of Maria, Vanessa and Gabriella as to alleged conversations in a Sicilian dialect of Italian, in which the Deceased, Maria and Carmelo participated prior to the death of the Deceased. For reasons that follow, I consider that that evidence is wholly unbelievable.

17. Each of Maria, Gabriella and Vanessa swore an affidavit in connection with the proceedings for the revocation of the probate granted to Carmelo and Maria as co-executors of the Will. In addition, each swore an affidavit in these proceedings. Much of the material in the second affidavits simply repeated verbatim the material in the first affidavits. Much of the repetitive material was therefore rejected.

18. The extraordinary aspect of the affidavits sworn by Maria, Vanessa and Gabriella is that each of them gave identical accounts of an English translation of conversations alleged to have taken place in a Sicilian dialect of Italian. Set out in Appendix 3 to these reasons is a schedule prepared by NSW Trustee, setting out the identical evidence contained in the affidavits of Maria, Gabriella and Vanessa. Somewhat surprisingly, each of Maria, Vanessa and Gabriella maintained in cross-examination that the identical evidence was her own personal, independent recollection and that she had not discussed the evidence with either of the other two.

19. In that regard, it is highly significant that the conversations were alleged to have taken place in a Sicilian dialect of Italian, with which each claimed familiarity. The affidavits did not give the words in Italian allegedly spoken on the occasion but gave an English translation, making it all the more remarkable that each of the three witnesses translated the words of Italian into identical English, in affidavits sworn more than ten years after the event. No suggestion was made that anyone made a contemporaneous note of what happened at the time.

20. There was no evidence as to the extent to which any of the three witnesses had any familiarity with the Italian language generally or the relevant Sicilian dialect of Italian. I indicated that, in those circumstances and where their evidence was identical, I would not be disposed to afford the affidavit evidence any weight. Maria was therefore afforded the opportunity of giving evidence and having her daughters giving evidence as to their respective recollections of the Italian words allegedly spoken on the relevant occasions. Those words were then interpreted by a qualified interpreter. The interpreter was provided with audio files of the evidence given by Vanessa and Gabriella. Maria’s evidence was interpreted as she gave it in court. Set out in Appendix 4 to these reasons is a record prepared by the interpreter of the Italian spoken by the witnesses in evidence and the interpreter’s interpretation of the Italian into English, as well as the interpreter’s evidence as to Maria’s oral evidence.

21. In circumstances where Maria clearly has a personal interest in the outcome of the proceedings, as plaintiff, and her daughters, Vanessa and Gabriella, have an indirect interest in the success of their mother’s case, their evidence should be given careful scrutiny. Further, particular care should be given where the evidence of two witnesses in affidavits is identical. Greater care must be given where the evidence of three witnesses in affidavits is identical. Even more care is required when the affidavits are prepared more than ten years after the events to which they relate.

22. Human memory of what is said in a conversation can be fallible for various reasons. The degree of fallibility will normally increase with the passage of time and the processes of memory can be overlaid, often subconsciously, by perceptions of self-interest as well as conscious considerations of what should or could have been said. The result is that what is actually remembered is sometimes little more than an impression from which plausible details are, sometimes subconsciously, constructed[6] .

    6. See Watson v Foxman (1995) 49 NSWLR 315 at 319.

23. Had there been an explanation from Maria, Vanessa and Gabriella as to how their respective translations of their recollections of Italian conversations more than ten years earlier came to be identical, there may have been a basis for accepting their evidence as reliable. One can imagine circumstances where, without any intent to commit perjury, a witness may be shown the affidavit of another witness and is persuaded that that affidavit is consistent with the recollection of the first witness. Clearly, that is an undesirable mechanism for recording reliable evidence.

16. However, where three witnesses deny having colluded in any way, the inference should clearly be drawn that their evidence is unreliable. In addition, each of the three witnesses gave numerous answers in the nature of “I don’t know”, “I can’t recall” and “I don’t remember” to questions to which one would expect them to have a recollection, as set out in Appendix 2. Their difficulties in remembering circumstances for more than ten years previously are understandable. However, such difficulties confirm the unreliability of their identical evidence.

17. It is necessary to consider the evidence of the Maria, Vanessa and Gabriella against the background outlined above. However, before doing so, I shall deal first with the evidence of Mr Martin Fowler, who was appointed under the Guardianship Act as financial manager of Carmelo’s estate on 28 February 2014. On 5 June 2015, the Guardianship Tribunal ordered that Mr Fowler’s role as financial manager cease as of 3 August 2015, when NSW Trustee was appointed as financial manager.

Martin Fowler

26. Mr Fowler gave evidence by affidavit and in cross-examination. Mr Fowler has no interest in the outcome of these proceedings and I found him to be an impressive and truthful witness. Mr Fowler’s evidence was quite inconsistent with the existence of any promise, representation or acknowledgement as alleged by Maria. I accept his evidence in preference to the evidence of Maria, Vanessa or Gabriella where it is in conflict with their evidence.

27. On 11 March 2014, shortly after he was appointed, Mr Fowler met with Carmelo. He recorded his observations that Carmelo struggled to answer simple questions and was virtually incoherent. He also recorded that Carmelo could not sit still and walked anxiously around the room, relying heavily on Maria to answer most questions for him.

28. Between 28 February 2014 and 3 August 2015, Mr Fowler attended to various matters for and on behalf of Carmelo including:

• meeting with Carmelo personally to obtain his views about matters arising in relation to his financial affairs;

• attending to Carmelo’s financial affairs;

• corresponding with members of Carmelo’s family;

• keeping the Guardianship Tribunal informed;

• assisting Carmelo in respect of his family law proceedings with Carmelo’s former wife, Junram (Junram);

• obtaining legal advice about Carmelo’s rights in respect of the administration of the Deceased’s estate and the Will and issuing a demand to Maria for the administration of the estate to be completed in accordance with the Will.

29. On 10 July 2014, Mr Fowler met with Carmelo, Maria and Vanessa and on 19 February 2015, Mr Fowler wrote to Maria referring to that meeting. The letter confirmed that a number of issues had been raised during the course of the conference with respect to the transfer to Carmelo of title in respect of the Deceased’s share in the Stanmore Property. The letter said that Carmelo, Maria and Vanessa accepted that the sum of $50,000 had been paid to Salvatore in accordance with the Will within three months of the grant of probate. The letter then said that, as a co-executor of the Deceased’s estate, Maria’s primary obligations were to the beneficiaries and the due administration of the estate in accordance with the Will and requested Maria’s urgent consent for the preparation of a transmission application in respect of the Stanmore Property.

30. The letter also said that Maria had informed Mr Fowler that she would not sign the relevant transmission application, as co-executor of the estate of the Deceased, because Vanessa was owed the sum of $130,000, representing pension payments of the Deceased’s that were alleged to have been promised to Vanessa by the Deceased but were deposited into Carmelo’s bank account. The letter said that the question of the issue of the monies allegedly promised by the Deceased to Vanessa was a separate issue from the transmission application in respect of the Stanmore Property and should be dealt with in isolation. The letter said that, without proper evidence of Vanessa’s entitlement to the monies and approval from NSW Trustee to pay the monies, Mr Fowler was unable to authorise the transfer of any money from Carmelo to Vanessa. It said that, if Vanessa wished to pursue her claim, she may wish to seek legal advice as to her entitlement to the alleged monies and provide Mr Fowler with written documentation to support her claim.

31. There is no evidence of any response from Maria challenging any of the assertions made by Mr Fowler in the letter of 19 February 2015. Significantly, Mr Fowler also gave evidence that, during the course of his discussions and correspondence with Maria, he was never informed of any allegation or suggestion that there was an agreement between Carmelo and Maria in relation to the half share of the Stanmore Property that was the subject of the outstanding transmission application under the Will. I accept that evidence, which is contrary to other evidence from Maria, Vanessa and Gabriella.

Carmelo

32. An unusual aspect of these proceedings is the evidence given by Carmelo. Originally, there was no intention on the part of any party that Carmelo would give evidence, because there was a real question as to his capacity to give evidence. However, after the evidence closed, Maria sought leave to reopen to adduce evidence from Carmelo. I directed that Maria serve on the defendants a statement of the oral evidence that it was expected Carmelo would give. An evidentiary statement signed by Carmelo on 11 March 2019 (Carmelo’s Statement) was then served on the defendants. I then heard Carmelo’s evidence on the voir dire as well as evidence as to his capacity to give evidence. Carmelo gave oral evidence and was cross-examined on Carmelo’s Statement on 18 March 2019. Ultimately, the evidence given by Carmelo was admitted without objection.

33. Maria placed considerable weight on Carmelo’s evidence. Because of Carmelo’s mental illness, and his dependence upon Maria and Vanessa and the influence that they have over him, Carmelo’s evidence must be approached with a great degree of caution. His demeanour in the witness box was confused and he exhibited symptoms of being mentally unsettled. From time to time, he stood up and wandered around the courtroom, seemingly oblivious as to why he was there. On four occasions he was directed to sit down. On one occasion, in response to being asked whether he needed a break, he replied “I can’t remember”.

34. Carmelo’s obvious state of confusion can be attributed to the state of his mental health and his mental condition generally. In a consultation with a forensic psychiatrist on 23 January 2019, Vanessa explained to the psychiatrist that Carmelo was “a simple man” with “limited intellect”, who had “cognitive defects since childhood”. Carmelo’s mental health has been poor since mid-2013, when he had a mental breakdown as a result of the breakdown of his marriage with Junram. Since that time, Carmelo has suffered from serious depression, has been hospitalised and has involuntarily received electroconvulsive therapy. Carmelo’s disability has been debilitating and he has been receiving in home care for personal hygiene. Hospital notes indicate that Carmelo was unable to undertake basic functions without assistance. The Guardianship Tribunal first made an interim financial management order in respect of Carmelo’s estate on 4 October 2013.

35. Much of Carmelo’s evidence was elicited by leading questions, with the consequence that little weight can be afforded to the answers. I have set out in Appendix 1 to these reasons a transcript of the evidence in chief given by Carmelo. Consideration of that evidence leads inevitably to the conclusion that very little weight can be given to it.

36. Thus, without the leading questions put to Carmelo, his evidence about alleged conversations with the Deceased made no sense. For example, in response to a question as to what he and the Deceased said about the Stanmore Property, Carmelo said “the house to your sister”. When asked to which house the Deceased was referring, Carmelo responded “Concord” then corrected his answer to “Stanmore”. When counsel for Maria sought to clarify the response, Carmelo responded “the house in Stanmore”. When asked whether the Deceased told him why she wanted him to do that, another leading question, Carmelo responded “‘I do not like her, the wife”. The evidence given by Carmelo is incapable of supporting a finding that there was a clear representation or promise by him either to the Deceased or to Maria.

37. An answer given as the result of a leading question or prompting of the witness as to the subject matter must be given far less weight than an answer that is given by the witness spontaneously. The object of examination-in-chief is to prove the facts necessary for the making out of the party’s case. Further, those facts should be proved in a manner that will be persuasive of the tribunal of fact where the facts are disputed. Evidence given in chief by a witness in the words of the witness will carry much more weight than evidence consisting of mere affirmation or denial of a proposition put by the examiner.

38. When asked in cross-examination what the Will said, Carmelo responded “She leave half her house to me. I already own a half”. That was clearly incorrect: when the Will was made and when the Deceased died, one half of the Stanmore Property was owned by Salvatore or his estate. Carmelo did not buy Salvatore’s half interest in the Stanmore Property until May 2006. Carmelo also said that Salvatore died after the Deceased died. That is incorrect since Salvatore died in August 2003 and the Deceased died in August 2005.

39. Carmelo was unable to recall much of the material about which he was asked questions. Set out in Appendix 2 to these reasons is a schedule of 58 instances where answers such as “I don’t know”, “I can’t recall” and “I don’t remember” were given by Carmelo. Some of the questions were not difficult. For example, he could not recall precisely the time of his mother’s death, his elder daughter’s first birthday or whether or not he had transferred the Deceased’s half share in the Stanmore Property to Maria. He had no recollection of significant matters that one would expect to remain in his memory, if he had complete capacity, such as borrowing a sum of $51,000 for Maria in March 2014 and obtaining a loan of $220,000 for Maria in October 2014.

40. Hospital notes made by a social worker who attended Carmelo when he was in hospital in 2018 record that he said that his “sister and niece wanted half of his house”. Carmelo denied that he said anything along those lines. However, there is no reason to doubt the authenticity or veracity of the records. I consider that it is more likely than not that Carmelo told the social worker that his sister and niece wanted half his house. It would be curious for him to make such a remark if he genuinely believed that he had promised the Deceased that he would give the half share to Maria, notwithstanding the terms of the Will.

41. It is clear from the evidence that Maria and Vanessa have devoted considerable energy and effort to looking after Carmelo and his daughters. It is reasonable to conclude that Maria and Vanessa have exerted some influence over him and that he is very much dependent upon them. Carmelo and his two daughters have lived with Maria since mid-2013, when Carmelo had a breakdown. It is apparent that Carmelo and his daughters depend upon Maria for their day-to-day accommodation. Carmelo’s treating psychiatrist declined to write a letter saying that Carmelo could look after his own affairs and recorded the opinion that Carmelo cannot look after his affairs alone.

42. There is evidence that Carmelo has been emotionally affected by Maria’s financial situation. Hospital notes record that, on 20 September 2016, Maria said that Carmelo’s deterioration may be related “to ongoing psychosocial stresses regarding his finances”. Notes dated 18 October 2016 record Carmelo saying that he has “no money, stressing both him and her (sic) sister out”. The notes record that Carmelo said that he was worried that his financial managers were taking his money away. Notes of 24 August 2018 record that Carmelo was concerned about his money and his properties being sold and that Maria and Vanessa had told him that NSW Trustee had sold three of his properties and that they were not doing a good job. Notes dated 13 November 2018 record that Carmelo “appeared concerned about returning home to family tomorrow” and that he said “I don’t know about my money and what if my sister ‘kicks me out’”.

43. Carmelo’s evidence in support of Maria’s claim is quite inconsistent with the statements made by him to Concord Hospital staff. On 15 November 2016, the doctor noted that Carmelo told him that Maria was “just interested in getting the money”. The social worker’s notes of her meeting with Carmelo on 8 November 2018 state that Carmelo reported that his sister and niece “want half of his house”. She said that Carmelo told her that “his sister said their mother wanted her to have half of his house for looking after him but she did not put it in the Will”. That note was made several months before the commencement of the hearing and is entirely inconsistent with there being a long term understanding between Carmelo and Maria. It makes no sense in the light of the circumstances that existed immediately before the death of the Deceased.

44. Maria and Vanessa often spoke for Carmelo and directed him what to do. A social worker recorded on 9 January 2019 that “Vanessa appeared to speak mostly on behalf of” Carmelo. A report of 24 January 2019 from a forensic psychiatrist, to whom Carmelo had been taken by Maria and Vanessa, recorded that “it was evident that he had difficulty recalling information and looked to his niece for assistance”. Mr Fowler’s notes record that, although Carmelo was generally present at meetings, Maria and Vanessa mostly provided Mr Fowler with information and often instructed or attempted to give him instructions on behalf of Carmelo.

45. There were clear discrepancies between Carmelo’s oral evidence and Carmelo’s Statement. Carmelo’s age and the dates of the deaths of his mother and brother were set out in Carmelo’s Statement but, in cross-examination, he was unable to recall any of those matters. Further, his daughter’s name was misspelled twice in the document. Nevertheless, Carmelo was emphatic that he provided the information for the document and was responsible for the information contained in it. However, the language of the statement is inconsistent with his demeanour and apparent incapacity. The discrepancies give rise to the inference that Carmelo did not give detailed instructions in connection with the preparation of Carmelo’s Statement. There is good reason to conclude that the evidentiary statement was prepared without any genuine input from Carmelo.

46. Carmelo initially denied having discussed the case with Vanessa. He subsequently said “Part of it, I have”. When asked whether he had discussed the case with Maria, Carmelo said:

“Yeah. No, I haven’t, which part of it?”

“Can I go for a walk?”

It is highly unlikely that Maria and Carmelo, who live together, had not discussed the case prior to the day when Carmelo gave oral evidence. The inference that I would draw is that Carmelo’s Statement was prepared with very considerable input from Maria and Vanessa.

47. It would be extraordinary, if Carmelo and Maria believed that there had been an arrangement made with the Deceased that Carmelo would transfer the half interest in the Stanmore Property that he was to receive under the Will to Maria, that no steps were taken after the death of the Deceased to effect a transfer of the Deceased’s half interest in the Stanmore Property to Maria. The Deceased died in August 2005 and Carmelo’s estate was first placed under financial management in October 2013, some eight years later. On the other hand, Maria and Carmelo signed the transmission of the Colo Vale Property from the Deceased to Maria in 2009.

48. In 2013, Carmelo withdrew a very substantial sum from his superannuation fund and a cheque for $100,000 was drawn from those funds for the benefit of Maria. In October 2013, the day before the first guardianship hearing, Carmelo borrowed the sum of $220,000 at exorbitant rates of interest and fees, secured by mortgage of two of his properties. $200,000 of that sum was paid to Maria. In March 2014, notwithstanding that Carmelo’s estate was under financial management, Carmelo borrowed the sum of $51,000 from Australia and New Zealand Banking Group Ltd (ANZ Bank), of which $50,000 was paid to Maria.

49. At any time between 2007 and 2013, a transfer of the interest of the Deceased in the Stanmore Property would have obviated any financial difficulties that Maria might have suffered during the period from 2007 to 2013. The only explanation offered by Carmelo as to why the Deceased’s interest in the Stanmore property was not transferred to Maria, rather than eroding his own finances and superannuation, was that he “didn’t get around to it”. That is hardly convincing in light of the other transactions entered into by him for Maria’s benefit. Carmelo did not contradict the evidence given by Mr Fowler that the reason why a transmission of the Deceased’s interest in the Stanmore Property did not take place was a dispute with Vanessa.

50. An important aspect of Carmelo’s evidence concerned a conversation that he had on 14 January 2019 with Mr Christopher Zucker, the solicitor acting for him in the proceedings on instructions from NSW Trustee, when he telephoned Mr Zucker. In the conversation, Carmelo said, amongst other things, “I want to give half my house to my sister. I promised my mother I give her half my house”. It is highly improbably that Carmelo would have promised the Deceased that he would give Maria “half my house”. While the Deceased was alive, Carmelo had no interest in the Stanmore Property whatsoever. As I have indicated above, it was owned by Salvatore and the Deceased as tenants-in-common in equal shares. Carmelo’s first interest in the Stanmore property was acquired under the Will. It was not until after the death of the Deceased that Carmelo acquired Salvatore’s half share from Salvatore’s widow. When he was asked what Mr Zucker’s connection to him was and why he telephoned him, Carmelo’s response was that he “wanted him to do the paperwork”. He gave no indication as to the nature of the “paperwork”.

51. In addition, it is significant that Vanessa was present with Carmelo when he made the telephone call to Mr Zucker. She dialled the number for him. Carmelo agreed in cross-examination that Vanessa told him what to say to Mr Zucker. Having regard to the circumstances in which the telephone conversation took place, and the disjointed nature of the evidence given by Carmelo, I would attach no weight to it as an admission against interest, quite apart from the considerations mentioned above.

Maria

52. Maria gave evidence that the first of the conversations between the Deceased and Carmelo that she remembered was “a couple of years” before the death of the Deceased. She said that the subject matter of the conversations was that Carmelo and Junram were not getting on together. In the first conversation, Carmelo is said to have said to the Deceased in Italian words to the following effect:

“I do promise that I will give half the property to my sister because she is helping you and because you are not able because you have problems with your wife.”

The reference to “your wife” is nonsensical as a statement made by Carmelo. Maria said that the next such conversation occurred about a week later. On the second occasion, Carmelo is said to have said:

“It’s okay mumma, I will make you happy. I will keep the promise, because your sister is always there to help”.

The reference to “to your sister” is nonsensical as a statement made by Carmelo.

53. Carmelo and Junram were married in April 2003 and their first child was born in August 2004. Thus, the alleged conversations would have been between the date of the marriage and the date of the conception of their first child. It seems unlikely that Carmelo would have been saying to his mother at that stage that he and his wife were not getting on.

54. Maria said that she did not remember the grant of probate to her and Carmelo or the terms of the Will. She said that she could not remember “that far back”. However, she recalled that the condition in the Will that $50,000 be paid to Salvatore was fulfilled, notwithstanding that Salvatore had been dead for two years.

55. Maria gave evidence that Carmelo said to her a few weeks after the death of the Deceased “you must continue to help me in the future as I cannot manage my children and myself”. That evidence is hardly believable, since Carmelo’s second child was not born until October 2006. Ultimately, Maria admitted that that evidence was false.

56. Another curious aspect of Maria’s evidence is that, on 5 March 2019, she said that she could not read. She said “every one of you is blurred. I’ve had the cataract done, it didn’t work out…” She then said “I went to the optometrist last night … there’s some skin growing over my eye…” However, on 18 March 2019, Maria appeared to have no difficulty at all in reading. Her recovery was unexplained.

57. Notwithstanding that she said in an affidavit in December 2016 that she would produce documents sought by NSW Trustee, Maria failed to produce any documents at all in response to notices served on her. She said that she had nothing and that it was “just me and my pension and maybe a few dollars that go through that my kids help me”. However, she accepted that she and her husband owned five properties at the time of the Deceased’s death. In that regard, Maria gave false evidence in an affidavit to the effect that she had not made any gifts of $1,000 or more in the previous three years. In fact, she had given Gabriella sums of $30,000 and $3,305 about ten weeks before swearing the affidavit. Gabriella admitted receiving those sums but Maria was evasive and her best explanation was that Gabriella’s husband had given her the money in order to give to his wife, a somewhat curious arrangement.

58. After the transmission to her from the estate of the Deceased, Maria transferred the Colo Vale Property to Gabriella. She asserted in her evidence that she did not receive any money from the transfer and that “they were all mortgaged out”. However, Maria also signed a statutory declaration about “gifting” a total of $377,000 of equity in the Colo Vale Property to Gabriella.

59. Maria was evasive and misleading about her income. Her evidence was that, apart from the pension and monies paid on behalf of Carmelo and his children, she got “a few dollars from my kids” and that she did not work. However, the evidence demonstrates that sums totalling $261,675.22 were deposited to the credit of bank accounts owned by Maria during the 2018 calendar year. In addition, a bank cheque for $15,358.22 was drawn in favour of Maria in December 2018 although Maria could not say where it was deposited, notwithstanding that it was only three months prior to her giving evidence. Maria’s attempts to explain those matters were evasive and accompanied by her constant statements that she could not remember. It is reasonable to conclude that Maria deliberately and persistently misled the Court.

60. Maria said in her affidavit evidence, and maintained in cross-examination, that the Deceased lived with her for the last seven years of her life from 1998 to 2005. However that evidence was contradicted by evidence given by another witness called on behalf of Maria, Ms Sellick, who said that she moved in as a neighbour of the Deceased and Carmelo in the Stanmore Property in mid-2001. Ms Sellick said that she visited the Deceased in her home on several occasions during the following six months and that the Deceased was still living there when Carmelo’s first daughter, “Little Pina”, was born in August 2004. Maria subsequently retreated in cross-examination saying that the Deceased lived with her until Little Pina was born, a little bit before the last year of the Deceased’s life. Maria gave evidence to the effect that she had been looking after Carmelo and his daughters for eight or more years. However, Carmelo and his daughters did not move in with her before June 2013 at the earliest, indicating a period of less than six years.

61. Maria could not remember or was unresponsive in relation to questions concerning a cheque for $100,000 drawn from the proceeds of Carmelo’s superannuation. She was also unresponsive when asked about a meeting she attended in a solicitor’s office on 3 October 2013 shortly after that cheque was dishonoured. She was also unresponsive about the fact of Carmelo borrowing $220,000 for her benefit. She had no explanation as to why Carmelo borrowed that sum at 9% per annum rather than simply transferring the one half share of the Stanmore Property to her, to which she claimed entitlement. Maria did not remember Mr Fowler asking her to sign a transmission of the Stanmore Property to Carmelo or that Mr Fowler subsequently wrote to her about the event. Her evidence was that Carmelo told Mr Fowler that he had promised the Deceased that he would transfer the Stanmore Property to Maria. I prefer the evidence of Mr Fowler to which I have referred to above.

62. Clearly having an interest in the Stanmore Property would have been of assistance in securing loans. However, Maria accepted that she did not disclose her alleged half interest in the Stanmore Property in any loan application that she made.

63. Maria gave evidence that Carmelo was unable to look after himself and was dependent on the Deceased throughout his life. However, notwithstanding that evidence, she accepted that Carmelo worked from the age of 17 or 18 years and built up an extensive property portfolio of eight properties during his lifetime and had significant superannuation.

64. Maria agreed that when Carmelo is sick or is unable to help look after his daughters, she looks after them as though she were their mother. She agreed that that was because they were “all family”. She also agreed that it had nothing to do with money and that “it’s the way we are”. She agreed that, if there was no land and no money, she would be doing it because “it’s family”, saying “of course” and that she was not “the type that would do anything less than that”. She said “That’s my brother. Then the little kids, they call me mum”. In the light of that evidence, it is difficult to conclude that Maria has acted in any way differently from the way she would have acted if there had been no representation, promise or encouragement as alleged in the Statement of Claim.

65. I do not regard Maria’s evidence as being open or candid. Rather, it was generally self-serving and occasionally self-contradictory. She clearly failed to give full and frank disclosure and misled the Court about her financial and other circumstances. She answered at least 103 questions in cross-examination with words such as “I don’t remember” notwithstanding that many of the questions related to significant or memorable events during the past five or six years and even the last six months. I do not regard Maria as a witness of truth and do not accept any of her evidence that is not otherwise corroborated by other reliable evidence.

Vanessa

66. Vanessa agreed that she was present with Carmelo when he telephoned Mr Zucker in January 2019 and that she dialled the number for him. Her evidence of what was said by Carmelo in the conversation is of no real assistance, given Carmelo’s evidence that Vanessa told him what to say to Mr Zucker.

67. Vanessa’s evidence concerning the alleged conversations involving the Deceased and Carmelo concerning the Deceased’s interest in the Stanmore Property was that the Deceased spoke in Sicilian dialect and broken English, “half-half”. That is inconsistent with the evidence of Maria and Gabriella that the Deceased spoke only in Italian in the course of the conversations in question.

68. Vanessa’s evidence was that the first conversation she recalled between Carmelo and the Deceased about the Stanmore Property was four or five years before the Deceased died. That is difficult to accept in circumstances where the Will was made four years before the Deceased died. The Deceased could have dealt with the Stanmore Property differently in the Will if she so wished. Her evidence was that the occasions when conversations with the Deceased took place in her presence were in about 2000 or 2001 at Canterbury Hospital, in 2004 and in early 2005. Her oral evidence contradicted her affidavit evidence as to the frequency of the conversations in 2005. For the reasons indicated above, the affidavit evidence should be rejected.

69. Vanessa’s evidence that Maria had always looked after Carmelo and that Carmelo had always been dependent upon Maria is hardly credible in circumstances where Maria was married and had four children from the 1970s onwards. Carmelo had been independent and in employment since at least 1967, well before Vanessa was born, and prior to building up an extensive property portfolio in the following decade. Vanessa made a concession that Maria did not look after Carmelo during the four years when he lived in Thailand but otherwise appeared to maintain that Maria looked after Carmelo even when he was living with his wife at Stanmore and then later at Wenoona.

70. Vanessa could not offer any reasonable explanation as to how she, Gabriella and Maria were able to give identical English translations of the alleged conversations. Vanessa said that it was plausible that three witnesses independently remembered conversations in Italian more than ten years previously and produced identical translations. The fact that Vanessa maintained that the multiple parts of her evidence that were identical to Gabriella’s and Maria’s were her own independent recollections is adverse to her credibility.

71. For the reasons indicated above in relation to Maria, Vanessa’s evidence of the alleged conversation in 2005 when the Deceased said to Carmelo “you’re having marital problems” is difficult to accept in circumstances where Carmelo at that time had been married for two years, his first child was under the age of one and he and Junram were to conceive their second child within six months. According to Carmelo, he was living with his wife and baby daughter at their home in Wenoona at that time.

72. Vanessa admitted that she had forged her father’s signature on a mortgage document. She was evasive about forging her father’s signature on a residential tenancy agreement and a letter supposedly from him to support a loan application. She admitted that, at that time, she was prepared to sign whatever documents were needed to obtain the loans, including forging her father’s signature. The fact that Vanessa was prepared to commit such seriously dishonest acts is clearly adverse to her credibility.

73. Vanessa’s efforts to assist Maria with her financial difficulties, albeit at the expense of Carmelo, included attending a solicitor’s office on 3 October 2013 for the purpose of Carmelo obtaining a loan to assist Maria. Maria acknowledged that she “had some involvement” in the loan negotiations. When asked whether she thought that Carmelo may not have understood what he was doing in October 2013 in relation to the loan, Vanessa responded that Maria had financial problems and Carmelo had been living with them for many, many years. When asked about assisting Maria to resolve her debt issues, Vanessa said that she would always assist her mother.

74. Vanessa was confronted with a file note made by Mr Fowler recording a discussion with her in relation to a personal loan by ANZ Bank to Carmelo in March 2014. The note recorded that Vanessa had advised Mr Fowler’s that the loan was organised because Maria was “desperate for funds to stave off creditors”. Vanessa could not recall the reason for the loan.

75. Vanessa agreed that she had arranged for Carmelo to withdraw $200,000 from his superannuation fund. Vanessa denied that she told Mr Fowler that Maria was not going to transfer the Stanmore Property to Carmelo until Vanessa got “the $130,000” that she claimed. Vanessa claimed that she told Mr Fowler that Maria was entitled to the Stanmore Property. Significantly, there is no reference whatsoever to such a statement in Mr Fowler’s notes.

76. Vanessa would not accept that, if the Stanmore Property had been transmitted to Maria in 2009, it would have solved Maria’s financial problems. Apart from speculations as to Maria’s desire to develop the Stanmore Property in future, Vanessa could not explain the difference in the treatment in 2009 of the Colo Vale Property and the Stanmore Property.

77. Vanessa’s evidence is unreliable. I would not accept it unless it was corroborated by another, reliable, witness. No weight can be accorded to Vanessa’s evidence as to the words alleged to have been spoken in Italian by Carmelo and the Deceased.

Gabriella

78. Gabriella agreed that Maria makes significant contributions to the repayments of her mortgage and that that has been going on for “some time”. Gabriella accepted that Maria gave her $30,000 in September 2016 and a total of $12,555 in separate transactions during the course of these proceedings. Gabriella accepted that Maria was a signatory to her bank accounts and that Maria withdrew $167,000 in total in November 2018, within three months before the commencement of the hearing.

79. In cross examination, Gabriella said that there was only one meeting at which she was present where an alleged conversation took place between Carmelo and the Deceased concerning the Stanmore Property. That is quite inconsistent with her affidavit evidence.

80. In recounting a conversation between Carmelo and Maria, alleged to have occurred in September 2005, Gabriella’s evidence was that Carmelo said “I’m going to give you the other half”. It would have been nonsensical for Carmelo to say “the other half” at that time, since he had not yet acquired Salvatore’s half interest in the Stanmore Property.

81. Gabriella continually maintained that the various parts of her affidavit evidence that were identical to the affidavits sworn by Maria and Vanessa were the words that she herself gave to the solicitor who prepared the affidavit and that those words were given independently. She denied that she had discussed the evidence with Maria or Vanessa beforehand. For the reasons indicated above, that of itself is a reason for rejecting Gabriella’s evidence as reliable.

82. When asked in re-examination to say the Italian words used by the Deceased and Carmelo, Gabriella simply gave an Italian version of what was in her affidavit. No weight can be accorded to Gabriella’s evidence as to the words alleged to have been spoken in Italian by Carmelo and the Deceased.

Ms Sellick

83. Ms Sellick deposed in her affidavit that she and her husband purchased their home in Stanmore Street, a few doors down from where the Deceased, Charlie and his wife lived together, in 1999. When shown relevant property transfer documents, Ms Sellick agreed that she had actually purchased her home in March 2001. That concession indicates that Ms Sellick’s affidavit evidence was not reliable. In cross-examination, Ms Sellick was asked whether she became friends with Maria after she moved into her home. She initially answered “no” but later changed her evidence to the effect that she did subsequently become friends with Maria. The equivocation is adverse to her credibility.

84. Ms Sellick gave evidence that the Deceased did not move out of the Stanmore Property that she shared with Carmelo and his wife until after Carmelo’s older daughter was born in August 2004. As indicated above, that evidence contradicts Maria’s sworn evidence that the Deceased lived with her for the last seven years of her life.

85. Ms Sellick said in her affidavit and in cross-examination that, in early 2007, Carmelo had said to her:

“the house was left half for me and half for my sister”.

It is unlikely that Carmelo that, since, as indicated above, Carmelo purchased the Salvatore’s half interest from Mary in May 2006. I do not regard Ms Sellick’s evidence as credible in that regard.

Conclusion as to the Trust Claim

86. The pleading of the legal basis for Maria’s claim in her statement of claim is not entirely clear. Her written submissions indicate that the claim is based on principles of proprietary estoppel by encouragement. I have set out above the claims made in Maria’s statement of claim. Maria expressly eschewed any reliance upon a secret trust.

87. The essence of Maria’s claim is that, in reliance upon promises and representations alleged to have been made, and encouragement alleged to have been given, by Carmelo and the Deceased, Maria acted to her detriment in:

• not taking steps to arrange for the Deceased to make a codicil to the Will or to make a new will,

• taking no steps to obtain income from the Stanmore Property,

• continuing to care for the Deceased in her own home,

• caring for Carmelo and his daughters in her own home without seeking rent or contribution to outgoings.

The statement of claim simply asserts that, in consequence of that reliance, the Deceased’s half share in the Stanmore Property is held on trust for Maria’s benefit. Although it is not explicitly alleged, the basis for the alleged trust appears to be that, in the circumstances alleged, it would be unconscionable for Carmelo to assert his entitlement to the Deceased’s half share of the Stanmore Property under the Will and he is therefore estopped from asserting his entitlement under the Will.

88. It is difficult to see how a claim can be made against NSW Trustee as administrator of the estate of the Deceased. Nevertheless, the statement of claim asserts that NSW Trustee or Carmelo holds the Deceased’s one half share in the Stanmore Property on trust for Maria. That suggests that there may be some confusion between the relief claimed, on the one hand, and the conveyancing processes that may be required in order to give effect to Maria’s claim.

89. That is to say, the estate of the Deceased has not yet been fully administered, in that there has been no transmission of her interest in the Stanmore Property. It may be that the pleader, as a matter of convenience, assumed that instead of a transmission from the legal personal representative of the Deceased to Carmelo and then a transfer by Carmelo to Maria, a direct transfer from the legal personal representative to Maria would be convenient. However, that could not lead to the conclusion that the Stanmore Property is held on trust by NSW Trustee as administrator of the Deceased’s estate.

90. Maria does not assert that any binding obligation came into force whereby the Deceased was required to execute a codicil to the Will or revoke the Will, so as to devise her interest in the Stanmore Property to Maria rather than Carmelo. It is difficult to see how, even if conversations occurred as deposed to by Maria, Vanessa and Gabriella, it is possible to divine a promise or representation by the Deceased upon which Maria might have acted to her detriment. A fortiori, it is impossible to find a binding declaration of trust by the Deceased. There is no allegation of consideration passing from Maria to the Deceased. The highest that Maria could put her case is that the deceased evinced “an intention” and that Carmelo made a promise or gave a representation that he would give effect to that “intention” and transfer to Maria the interest in the Stanmore Property that he derived under the Will.

91. For the reasons indicated above, I do not accept the evidence of Carmelo, Maria, Vanessa or Gabriella as to conversations alleged by them involving the Deceased, Maria and Carmelo. I do not accept that such conversations occurred. It follows that I am not persuaded that there was any promise or representation on the part of Carmelo that would support a case of estoppel against him.

88. Moreover, it is difficult to see why Carmelo would have agreed to transfer the Deceased’s half interest in the Stanmore property to Maria and it is not appropriate to speculate as to why the Deceased may have disposed of her estate in the way that she did. Under the terms of the Will, Maria was to receive the whole of the Colo Vale Property and Carmelo was to receive the half share held by the Deceased. Salvatore already owned a half interest in the Stanmore Property. There was no evidence as to the circumstances in which Salvatore and the Deceased came to be joint owners of the Stanmore Property. Salvatore was to receive $50,000 from each of Maria and Carmelo, apparently as compensation for the fact that he was to receive nothing under the Will.

89. The purpose of the doctrine of estoppel is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to an assumption upon which the former acted or abstained from acting. The detrimental or harm from which the law seeks to give protection is the detrimental or harm that would flow from the change of position if an assumption that led to that position is abandoned. So long as the assumption is adhered to, the party who altered her or his situation upon the faith of the assumption cannot complain. The complaint is that, if afterwards, the other party makes a different state of affairs, the basis of an assertion of right against her or him, the original change of position will operate as a detriment. If the action or inaction of the person complaining is such that, if the assumption upon which she or he proceeded was shown to be wrong and an inconsistent state of affairs was accepted as the foundation of the rights and duties of that person and the opposite party, the consequence would be that the original action or failure to act is a source of prejudice[7] .

    7. See Grundt v Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 at 674-5.

90. To establish a proprietary estoppel as Maria appears to assert, it is necessary to establish several matters. First, there must be sufficiently clear representations or promises calculated to encourage the claimant to act to his or her detriment. Secondly, it must be demonstrated that the claimant acted on the basis of an assumption or expectation. Third, it is necessary for the claimant to demonstrate that that assumption was induced by the representations or promises in question. Next, it is necessary for the claimant to show that the claimant acted to his or her detriment. Finally, it is necessary to demonstrate that that detrimental action was in reliance upon the assumption induced by the representation or promise.

91. In light of the conclusions that I have reached as to the unreliability of the evidence adduced on behalf of Maria, I am not persuaded that it is more likely than not that the alleged promises, representations, encouragement or acquiescence on the part of Carmelo and the Deceased occurred. That is an end of the matter and Maria has failed to establish any basis for an estoppel. Further, I am not persuaded that any detriment on the part of Maria that is relied upon by her can be said to have been induced by any conduct on the part of the Deceased or Carmelo. Maria accepted in her oral evidence that looking after Carmelo was something that she did as a sister and not because of any reliance upon a promise or representation that she would receive the Deceased’s half interest in the Stanmore Property.

Conclusion

96. The proceedings should be dismissed. Maria should pay the costs of the Deceased’s estate and Carmelo’s costs of the proceedings.

*******

Appendix 1

Appendix 1 Transcript extract 18.3.19 (18.1 KB, docx)

Appendix 2

Appendix 2 Sch of 'I Can't Remember' (94.0 KB, docx)

Appendix 3

Appendix 3 Schedule of Idenical Evidence (86.5 KB, doc)

Appendix 4

Appendix 4 Translation (41.8 KB, pdf)

Endnotes

Decision last updated: 31 July 2019