Mohedo (Junior) v Mohedo (Senior)
[2002] WASC 240
MOHEDO (JUNIOR) -v- MOHEDO (SENIOR) & ANOR [2002] WASC 240
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 240 | |
| Case No: | CIV:1223/2001 | 26-27 JUNE 2002 | |
| Coram: | WHEELER J | 17/10/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Refund to plaintiff of $37,200 with interest | ||
| B | |||
| PDF Version |
| Parties: | RAFAEL MOHEDO (JUNIOR) RAFAEL MOHEDO (SENIOR) REGISTRAR OF TITLES |
Catchwords: | Equity Unconscionable retention of benefit Payment made by son in reliance upon assumption that property to be left by father in Will Turns on own facts |
Legislation: | Nil |
Case References: | Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Bridgewater v Leahy (1998) 194 CLR 451 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Louth v Diprose (1992) 175 CLR 621 Radonich v Radonich [1999] WASC 165 Webb v Australian Agricultural Machinery Pty Ltd (1991) 6 WAR 305 Wood v Brown [1984] 2 Qd R 593 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RAFAEL MOHEDO (SENIOR)
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Equity - Unconscionable retention of benefit - Payment made by son in reliance upon assumption that property to be left by father in Will - Turns on own facts
Legislation:
Nil
Result:
Refund to plaintiff of $37,200 with interest
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Category: B
Representation:
Counsel:
Plaintiff : Mr I L K Marshall
First Defendant : Mr L A Tsaknis
Second Defendant : No appearance
Solicitors:
Plaintiff : Pearman Grantham
First Defendant : Wojtowicz Kelly
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Case(s) also cited:
Bridgewater v Leahy (1998) 194 CLR 451
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Louth v Diprose (1992) 175 CLR 621
Radonich v Radonich [1999] WASC 165
Webb v Australian Agricultural Machinery Pty Ltd (1991) 6 WAR 305
Wood v Brown [1984] 2 Qd R 593
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1 WHEELER J: This is an unfortunate family dispute. It arises from some payments made by Rafael Mohedo (Junior) the plaintiff (for clarity, "Raf", as a number of witnesses called him throughout the trial) to his father, Rafael Mohedo (Senior) (for clarity, "Mohedo Senior"), and some conversations which took place at around the time of some of those payments, and preceding those payments, concerning Mohedo Senior's house.
2 It is a case in which it has been more than usually difficult to arrive at a view of the facts. There are some gaps, apparently inexplicable, in the documentary evidence. For example, an important payment of a little under $30,000 is not documented, other than by a bank letter which records that it was made but does not record when or how it was made. There are odd gaps in the oral evidence. For example, a solicitor's file note records both Raf and Mohedo Senior as advising the solicitor that they did not wish to proceed with a particular course that had been recommended to them. However, Mohedo Senior denied being party to the discussions about that course of action with the solicitor at all, while Raf, who gave his evidence prior to the solicitor, did not mention, during the course of his evidence, anything about telling the solicitor that he did not wish to proceed, or why he might have done so. Raf was not cross-examined on the topic, which is not surprising since the solicitor was a witness located very late in the proceedings and giving her evidence subsequent to the evidence of Raf.
3 Both the principal witnesses, Mohedo Senior and Raf, are plainly unreliable in relation to at least some aspects of their evidence. For example, Raf thought that he "probably" made a critical mortgage payment prior to the making of a Will, when the evidence reveals that the instruction for the Will was given well over a month before the mortgage payment. Raf said that he had already made that mortgage payment at the time which a car was purchased, when the evidence reveals that the car was purchased some 10 days prior to the mortgage payment. Mohedo Senior said that the car had been purchased before Raf received the proceeds of settlement of a personal injury claim. However, the personal injury claim had been settled at a pre-trial conference some two months prior to the purchase of the car; the evidence suggested that it was probable that the payment of the proceeds of that claim had been made approximately one month prior to the purchase of the car; and the evidence further suggested that it is most unlikely that Raf would have had funds to purchase the car prior to receiving the proceeds of the personal injury claim.
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4 English was not the first language of at least two of the witnesses, they being Mohedo Senior and Mr Rodriguez, and, although Mohedo Senior gave a small portion of his evidence through an interpreter, this does give rise to some difficulty in a case which turns in part on the distinction between a person saying that he will "pay for" a house in the sense of paying out the mortgage or making payments on behalf of another, and a person saying that he will "pay for" a house in the sense of buying it from that other. Raf generally conversed in Spanish with Mohedo Senior, and it was not entirely clear to me that Raf was always alive to this distinction himself.
5 By the time the trial was conducted before me, some five years had elapsed since the critical conversations; no-one could remember the precise words of any relevant conversation, and Raf and Mohedo Senior had been estranged for in excess of 18 months. In those circumstances, there appeared to me to be, as one would expect, a significant degree of reconstruction in the accounts given by the witnesses.
6 As I observed immediately upon the conclusion of the trial, it was not my impression that any witness was attempting to mislead, or was doing other than making a genuine effort to tell the truth as he or she recalled it. However, given the demonstrable level of inaccuracy of oral evidence in relation to the sequence of events where those events were documented, and given what appears to me to be at least a degree of reconstruction, it is plain that no witness can be accepted as entirely reliable. In what follows, I have drawn heavily upon the sequence of events so far as it is documented independently of the parties. I rely upon my assessment of the witnesses to assist in forming a view as to the probabilities of particular events occurring. I also place some greater weight on the evidence of a Mr Price and Mr Rodriguez, who, although they are far from disinterested witnesses, are at least not members of the family and who may therefore have a somewhat lesser degree of partisanship influencing their recollection.
7 Some time in 1994 Raf was involved in a motor vehicle accident. It appeared to result in a relatively significant level of disability, and prevented him from working. Although he was living separately from them at the time, shortly after the accident he asked if he could return to live with Mr and Mrs Mohedo Senior, his father and mother. His parents were willing for him to return to live with them and he did so. Mrs Mohedo had by then been diagnosed with breast cancer. As time passed, her illness progressed. There is a dispute as to what role Raf played in the household at this time. He says that he assisted his father to
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- care for his mother, while Mohedo Senior alleges that Raf did little around the house and even did little in the way of caring for himself. It appears to me likely that Raf was able to carry out ordinary household chores but, having regard to the level of his disability, it is likely that he was not of significant help to his father at this time. He required a degree of assistance from his father; for example, his father often accompanied him to medical appointments and to dealings with solicitors, partly as a form of moral support and partly on occasion to provide practical support by way of driving him.
8 Mrs Mohedo unfortunately died in February of 1995. It is not clear how close the family had been previously, but it appears that by February of 1995 the three persons - Mohedo Senior, Raf and Mrs Mohedo – had become a very close family. It is plain from their evidence, even seven years after the event, that both Raf and Mohedo Senior were deeply attached to Mrs Mohedo and very saddened by her death. It appears that this circumstance drew Raf and Mohedo Senior closer together, at least for a time. In addition, it appears that Raf had been for some time unlucky in romantic attachments which he had formed, and it was not at that time expected that it was likely that he would form any long-term relationship of the kind that might lead to marriage. Although it was hoped that this might occur, there seemed a very real possibility at this stage that Raf and Mohedo Senior might reside together indefinitely.
9 Raf presented at trial before me as a somewhat subdued and unassertive person, who was easily confused about such things as the sequence of events, precise words of conversations, and so on. Mohedo Senior had attended his medical and legal appointments, as I have noted, and also attended the pre-trial conference with him at which his personal injury claim was settled. Mohedo Senior was a much more assertive and confident personality. Both he and his other son, Antonio Mohedo, say that it was largely due to Mohedo Senior that Raf did not settle his personal injury claim for a sum much smaller than that which was eventually achieved. Having seen the two men giving evidence, I believe that this was probably correct. While not willing to accept that Mohedo Senior had done as much for him as was alleged, Raf did accept at trial that he was grateful to his parents for their support from the time of the motor vehicle accident onwards.
10 At the time at which Raf received payment for his personal injury claim, the family was in modest circumstances. It does not appear that Mrs Mohedo had had employment; in any event, she was, as I have noted, ill for quite some time. Mohedo Senior had himself been an invalid
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- pensioner for many years and, while Raf had had some modest superannuation on which he had drawn when it became apparent that he would not work again, he did not have substantial resources either. The sum received by Raf was in excess of $380,000.
11 Over a number of months, events occurred which lie at the heart of this claim. I set out below the sequence, so far as it can ascertained, and then turn to deal with the competing contentions about the significance of that sequence.
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12 For completeness I mention some subsequent dates which appear to be of some significance to the way in which this action arose.
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- to what it appears to me most probably occurred, and I will return to the pleaded consequences later.
14 At trial, Raf's evidence was somewhat different from his pleading. It was to the effect that prior to his mother's death his mother and father would discuss with him the buying of their house. He said that after his mother's death his father said to him that he should buy the house from his father and "one day" it would be his. It was agreed, he said, that when he got his personal injury compensation payout he would buy the house by paying the mortgage to Homeswest and giving his father $40,000 and that his father could then live in the house rent free until the date of his father's death. At about time the mortgage was paid out, his father asked whether he would leave his father's name on the title because, as a result of his father being on the pension, there would be less to pay for rates and the like. It can be seen that there are some internal inconsistencies in that evidence. In particular, it is difficult to see how the notion of Raf's buying the house by payment of the money sits with the idea that it would be his "one day"; and, if the original conversations involved the idea that the house would be Rafs "one day", it is difficult to see why Mohedo Senior should subsequently have asked that the house remain in his name, rather than being transferred into Raf's during Mohedo Senior's lifetime.
15 Mohedo Senior's defence, which was broadly consistent with the evidence which he gave at trial, was to the effect that each payment was made by way of gift and that at some time in late 1996 he said to Raf that if Raf were living in the property at the time Mohedo Senior died, Mohedo Senior considered that it was fair that the property should pass to Raf. In addition, he pleaded, and said in his evidence, that he did not want a games room added to the property but it was done for the convenience of Raf, that he made certain payments in relation to the floor tiles and that Raf wished to have the internal walls painted whilst he did not, but he did not oppose Raf's desire to do so.
16 I do not accept Mohedo Senior's evidence that there was any suggestion at the time of the early discussions about Mohedo Senior's Will, that Mohedo Senior's leaving the house to Raf was conditional upon Raf's living in the house at the time at which Mohedo Senior died. Although it seems to me that both parties thought it was probable that that would be the case, they did not necessarily regard it as desirable. It was mentioned from time to time during the course of the evidence that the desire of both of them was that Raf would at some stage find a suitable girlfriend with whom to form a relationship. It seems to me unlikely that Mohedo Senior would have imposed a condition which was effectively a
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- disincentive to Raf's forming his own family. Raf's living in the house at the date of Mohedo Senior's death was an assumption as to what was probable, rather than a condition. It does seem to me likely that the idea of paying out the mortgage was something which was volunteered by Raf, rather than positively sought by Mohedo Senior. As I have noted, at about this time Raf and Mohedo Senior were very close and Raf was about to receive a lump sum which, to a family situated as they were, was a very significant amount. Notwithstanding that it was a sum intended to last Raf indefinitely, it seems to me likely that Raf would have wanted to use some of it for the benefit of the father to whom he was grateful, and to whom the achievement of such a significant sum could in part be attributed.
17 I accept Raf's assertion that there was some discussion about the house being his one day even prior to his mother's death. His evidence on this point was not entirely clear. He was not able to remember the exact words. He did suggest that his mother wanted him to "buy" the house, but this does not appear to me to be the most convincing part of his evidence. It seems to me that what Raf has retained from those conversations is an impression, and that the most convincing part of his evidence about that impression was the passage in which he said that "before she passed away. A few times she said it just – just saying it. She always wanted me to own that house". I accept that Mrs Mohedo did want him to own the house "one day". He was unable to explain, in cross-examination, how one could reconcile the apparently inconsistent suggestions that he should buy the house in about 1996, and that it would be his "one day". He said that there had been no discussion about what would happen to his parents when he bought the house. However, it seems to me unlikely that Mrs Mohedo would have wanted to bring about a situation in which Mohedo Senior had no entitlement to what had been their home, which suggests that the discussion involved no suggestion that Raf would be immediately entitled to the house. Similarly, when Raf gave evidence about the conversation with his father he said, quite frankly, "It's very hard to remember exactly who said it and that". He went on, "I just said I'd buy it and he said - maybe he's the one that suggested staying there till he died, and I said yes". The element of reconstruction here is obvious. Raf then went on, in response to the question "but you're not sure?" to say "but he did say it would be in the Will that it was mine". I accept that it was said that in the Will the house would be Raf's.
18 The evidence of Mr Rodriguez on this point is that Mohedo Senior said to him that Raf "give me the money to pay off the house and I do the Will and put the Will in his name". I think this was the main point of the
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- discussion between Mohedo Senior and Raf. The evidence of Mr Price was useful in a number of respects. It confirmed that Raf's memory was not particularly good, and that he had been unlucky with girls, and made it clear that Raf had always been generous with his parents, paying for a number of things around the house from time to time. Mr Price said that in his presence, when he raised the subject of Raf buying an investment or rental property, Mohedo Senior responded that Raf did not need to do that and Raf said, in his father's presence, words to the effect that he did not need to do that because his father had left everything to him in his Will because he – Raf – had "paid for it". Mr Price elaborated somewhat in his evidence under cross-examination, by explaining that Mohedo Senior had been concerned that because of Raf's lack of previous luck with girlfriends, he had a concern about the house passing to Raf, because Raf might lose it to some future girlfriend or wife and be left with nowhere to live.
19 I think that the evidence to which I have referred, and which I have accepted, is sufficient to establish that there was a link, so far as Raf and Mohedo Senior were concerned, between the making of the Will leaving the house to Raf, and the payment by Raf of the mortgage debt. It is also clear that the house was not to be Raf's until Mohedo Senior died. Mohedo Senior's concern was to provide for Raf in the future, since he saw Raf as someone who might be in need, to an extent, of protection from himself, and he wished to ensure that when Mohedo Senior died Raf would have something. With two relatively unsophisticated persons, who were plainly not aware at any time prior to these proceedings of a distinction between legal and beneficial ownership, it seems to me that what occurred was a fairly loose understanding in which the only clear element was that there would be a payment by Raf of the mortgage debt and that Raf would obtain ownership of the house on the death of Mohedo Senior, and that these two things were linked.
20 It is not clear whether Raf first volunteered to make a payment in respect of the mortgage, prompting Mohedo Senior to decide that it would be desirable to leave Raf the house, or whether Mohedo Senior, for the reasons to which I have referred, advised Raf that he would be leaving the house to him, which advice led Raf to make the specific offer to pay out the mortgage. I do not think it matters precisely in what order these things were raised, since what seems clear is that there were discussions over a period of years, commencing when Mrs Mohedo Senior was alive, in which there was forged in the minds of the parties a strong link between these two topics, so that by the time Raf came to pay the mortgage debt, it was understood on both sides that he was doing so based upon his father's
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- decision to leave the house to him. The chronology supports this view, since it appears that the instruction had been given for Mohedo Senior's Will to be drawn in that form, on an occasion on which Raf appears to have been present, more than a month before Raf actually paid out the mortgage.
21 There are a couple of other aspects of the evidence which I should mention, because some reliance was placed on them in argument. Working backwards in time, in September 2000 Raf went to obtain certain items from a deposit box which he shared with Mohedo Senior. In sorting out the papers in that box, he and Collette both saw a note attached to Mohedo Senior's Will. It was to the effect that the house was left to Raf because Raf had paid for it. The precise words are not known, since the note itself no longer exists. I do not think that this advances the matter further. It does not identify the form which the payment took. I do not think that it can be seen as an admission by Mohedo Senior that Raf had effectively bought the house.
22 An odd aspect of the evidence about the note is that Mohedo Senior explained that it had come about as a result of a request by Raf, who was concerned that his brother Tony might challenge his father's Will. The note was written in English, and Mohedo Senior generally writes in Spanish; it appears that he does not read English, or at least does not read it well, and he said that it was written at Raf's direction. Raf was unable to say how the note came to be attached to the Will. He considered that it was possible, as I understood his evidence, that he might have requested that the note be written, or that he might have been there at the time, but he simply did not know. I am unable to determine how or why it came to be written.
23 It does appear that sometime around early 1997 both Mohedo Senior and Raf consulted a solicitor about the possibility of challenge by Antonio to Mohedo Senior's Will. It is clear that there was some discussion about the house and about payment having been made. It appears from the file note that the solicitor formed the view that the parties were trying to tell her that the house was effectively held in trust for Raf by Mohedo Senior. I do not place much weight on the solicitor's note of the instructions, since it reflects only her understanding, and since I have been able to observe for myself the difficulty which both Raf and Mohedo Senior have in recounting in any clear way what they understood had occurred. It is of some significance however that they did not proceed further, when she advised that there should be a letter or something of that kind in which Mohedo Senior effectively declared that he held the house in trust for Raf.
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- It may well be that at least one of them considered that that was not an accurate reflection of their understanding.
24 Finally, it also appears that on two occasions Raf had sought the transfer of the title to the house into his name. The evidence does not suggest to me that there was at the time of either of such requests any assertion of ownership. Rather, it seems to have been expressed as a request made so that the house could be used as security for another purchase. It may be that on one or the other of these occasions Raf made some reference to his father living in the house and not paying any rent; I do not think this comment, even if it was made in those terms, would necessarily be considered to be an indication of ownership by Raf. It is clear that during the year after Raf met Collette, relations between Raf and his father deteriorated, and it is equally possible that Raf had by then begun to regret somewhat his earlier generosity to his father.
25 I have in the discussion to date referred to payment out of the mortgage as being the payment which was linked to, or made on the understanding that, Mohedo Senior's Will would leave the house to Raf. I consider, on the balance of probabilities, that that payment was made on the understanding to which I have referred. I am not however able to be so satisfied about any of the other payments made by Raf. I have already noted Raf's generosity to his parents, and the sense of gratitude which I consider that he felt.
26 Both Mohedo Senior and Raf's brother Antonio have given what appears to me to be a convincing account of the purchase of the car. That was broadly to the effect that the three men went looking at cars together, with the two brothers wishing to persuade Mohedo Senior to purchase a new car. Mohedo Senior was unable to purchase a suitable vehicle because of want of funds, he having a vehicle to trade in which fell a long way short of the purchase price of the car they were considering. Raf said words to the effect of "Don't worry about it, I will buy it for you as a gift". The purchase of a vehicle was not discussed with Mrs Mohedo prior to her death, and Mohedo Senior already had a car which was in satisfactory working order. The sum involved, $12,200, was a relatively small one, and the suggestion said to have been made by Raf is the type of generous, impulsive gesture which could be expected of a grateful, and perhaps somewhat improvident, son who had recently discovered he was receiving a large lump sum.
27 In relation to the purchase of the car, an odd aspect of Raf's evidence about was that Raf said in relation to the sum paid to his father for the car
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- "I did loan him that money, yes". This statement, which was made during the course of cross-examination, was inconsistent with his pleading and with any of the other evidence about the car, and further reinforces in my mind the impression that Raf has by now no very clear idea of precisely what it was that prompted him to make that payment.
28 So far as the money to go to Spain is concerned, it was something under $30,000. That is a significant sum. However, there is no clear evidence of when it was paid to Mohedo Senior, and it appears not to have been required until March 1997, when Mohedo Senior went to Spain. That was quite some time after the payment of the mortgage. It was a payment made in circumstances where it had originally been planned that the two men would travel to Spain together; if they had travelled together, it seems to me likely that Raf would have paid the majority of expenses, since it does not seem that Mohedo Senior had the funds himself for such a trip. When Mohedo Senior went back to Spain a year later, it is clear that Raf paid some of the expenses of that trip, although there is some dispute about whether portion of the payment was by way of loan rather than by way of gift. In those circumstances, it seems to me probable that the payment was one made by Raf, not as part of the purchase price of the house, but to ensure that his father would be able to have an enjoyable holiday in Spain, notwithstanding that Raf had chosen to remain in Perth with his new girlfriend rather than to undertake the trip which they had previously planned together.
29 In relation to Raf's generosity, I should add that this was not confined to his father. It appears that Collette moved into the house which Raf had purchased in November of 1997, and lived there with her children until Raf joined her in March of 1998. Although no evidence was addressed to this question, it seems unlikely, from the tenor of the evidence which was given, that Collette was expected to make payment for occupying the house during that time. It seems to me to be a further example of Raf's spending money in order to reinforce relationships with those he cared for.
30 The other payments, for the games room and for work done around the house by way of tiling and repainting, I do not consider to have been made in reliance on any understanding that the house would be left to Raf in Mohedo Senior's Will. The expenditure on the games room and the painting, I accept was thought to be desirable by Raf rather than by Mohedo Senior, and it would benefit Raf while he lived in the house. I accept that it may have been thought by Raf that these payments would also enhance the value of property which would eventually be his, but I do
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- not think that this was a significant factor; still less was it one which was either made known to, or should have been understood by, Mohedo Senior. So far as the tiling was concerned, there seems to have been a sharing of the cost in that regard, which was in any event not significant, and I am unable to make any finding in relation to it.
31 It follows from the foregoing findings, that I do find that in reliance on the assumption that the house would be left to him in Mohedo Senior's Will, to the knowledge of Mohedo Senior, Raf discharged the mortgage over the house. The question then arises as to what relief should flow. It is pleaded that it would be "unconscionable" of Mohedo Senior to depart from the assumption; that is, apparently, to alter the Will. The relief claimed so far as this aspect of the pleading is concerned appears to be either for a declaration that Mohedo Senior holds the property upon a constructive property for Raf, or for an order restraining Mohedo Senior from transferring the house to any person other than Raf. It appears that Mohedo Senior now wishes to sell the house – or, at least, that he wished to do so in late 2000, when he advertised it for sale.
32 It appears to me that the relief claimed is one which is disproportionate to the detriment suffered by Raf and which is broader than that required to ensure that Mohedo Senior did not retain the benefit of Raf's payment in circumstances where it would be unconscionable for him to do so. It is not surprising that the relief claimed took the form that it did, since the statement of claim assured that all of the payments made by Raf were made based upon a representation that the house either belonged to him or would be left to him in the Will.
33 The relief can be considered from a number of viewpoints. By analogy with the principle that a fixed term partner is entitled to a proportionate refund of his or her premium and a contractual joint venturer is entitled to a proportionate repayment of capital contribution on the premature dissolution of the partnership or collapse of the joint venture, discussed as instances of the more general principle applied in Muschinski v Dodds (1985) 160 CLR 583 at 618 (per Deane J), it seems that the appropriate remedy would be a refund of the sum which Raf contributed relying upon the expectation that the house would become his in Mohedo Senior's Will. Alternatively, there may be the question of equitable estoppel, which operates where there is the creation or encouragement by the defendant in the plaintiff of an assumption that a promise will be performed, and reliance on that promise by the plaintiff in circumstances where departure from the assumption by the defendant would be unconscionable, (discussed in Silovi Pty Ltd v Barbaro (1988)
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- 13 NSWLR 466). In such cases the remedy granted to satisfy the equity is that which is necessary to prevent detriment resulting from the unconscionable conduct. Prima facie, the detriment which Raf suffered is the loss of the money paid for the mortgage in circumstances where it appears that he will no longer receive the entitlement to the house which he was encouraged to expect.
34 The case is not quite analogous with Muschinski v Dodds, since it seems to me that rather than a "joint venture" there was nothing more than a loose expectation that it was probable that Raf and Mohedo Senior would continue to live together, existing concurrently with a recognition that that was not necessarily the inevitable or even the most desirable state of affairs. It is a case in which, while Raf lived in the house with Mohedo Senior, he had the benefit of Mohedo Senior's support and assistance, whilst he made some financial contributions to the household in the way of home improvements, which were of some benefit to Mohedo Senior but which were largely of benefit to himself while he lived there. There seems to have been a sharing of expenses while the two men lived together. In those circumstances, it seems to me that the only detriment incurred by Raf was the payment of money and that the demands of justice and good conscience require no more than a refund of that sum together with interest.
35 Perhaps the closest case to the present is that of Morris v Morris [1982] 1 NSWLR 61, in which the plaintiff paid a significant sum towards an extension to the home jointly owned by his son and daughter-in-law to provide accommodation for himself indefinitely as part of the son's family. Subsequent events not contemplated by any of the parties made it impossible for the plaintiff to take advantage of that accommodation. In holding that it would be unconscionable and inequitable for the defendants to retain the benefit of the plaintiff's expenditure on their property free from any obligation of recoupment, McLelland J gave relief to the plaintiff by way of an equitable charge over the property in the sum paid by him together with interest as from the date of commencement of the proceedings. It seems to me that a refund of the sum of $37,200.25, together with interest from the date of institution of these proceedings, would be the appropriate remedy in the circumstances of this case with an equitable charge over the house to secure that sum.
36 The sums pleaded to have been paid by Raf in reliance upon the expectation pleaded by him amounted to roughly double the amount which I have in fact found to have been so paid. The current value of the house, if the advertised sale price in late 2000 can be taken as a guide, is
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- approximately three times that sum. In those circumstances, it seems to me that each party has been successful and unsuccessful in roughly equal measure, and that it is probable that the appropriate order as to costs would be simply that each of the parties bear his own costs. However, I would be prepared to hear an application to the contrary.
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