Moore v Aubusson

[2020] NSWSC 1466

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Moore v Aubusson [2020] NSWSC 1466

Hearing dates:

14-17, 20-24 April 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Declare that the defendant holds the properties known as No 66 and No 68 Louisa Road, Birchgrove (the properties) on trust for the plaintiffs in equal shares as tenants in common.

2.   Order that within 28 days the defendant transfer the properties to the plaintiffs in equal shares as tenants in common.

3.   Direct that the parties file brief written submissions as to costs (and any issue as to the extent to which the defendant should be indemnified out of the estate of the deceased) within 7 days, with a view to dealing with the issue of costs on the papers.

Catchwords:

CONTRACTS — Formation — Intention — Certainty — Testamentary promise

ESTOPPEL — Proprietary estoppel — Detrimental reliance — Proportionality of relief claimed

Legislation Cited:

Evidence Act 1995 (NSW), ss 69, 79, 136

Uniform Civil Procedure Rules 2005 (NSW), r 6.29

Cases Cited:

Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540

Barnes v Alderton [2008] NSWSC 107

Blacket v Barnett [2017] NSWSC 1032

Bovaird v Frost [2009] NSWSC 337

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61

Browne v Dunn (1893) 6 R 67

Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

Carter v Brine [2015] SASC 204

Cobbe v Yeoman’s Row Management Limited [2008] UKHL 55; [2008] 4 All ER 713

Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39

County Securities Pty Limited v Challenger Group Holdings Pty Limited [2008] NSWCA 193

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Dillwyn v Llewelyn (1862) 4 De GF & J 517

Donis v Donis (2007) 19 VR 577; [2007] VSCA 89

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

E Co [a pseudonym] v Q [a pseudonym] (No 4) [2019] NSWSC 429

E Co [a pseudonym] v Q [a pseudonym] (No 5) [2019] NSWSC 844

E Co [a pseudonym] v Q [a pseudonym] [2018] NSWSC 442

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Evans v Evans [2011] NSWCA 92

Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134

Galaxidis v Galaxidis [2004] NSWCA 111

Gillett v Holt [2001] Ch 210

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Grant v Roberts [2019] NSWSC 843

Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 at 674; [1937] HCA 58

Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15

Horton v Jones (1935) 53 CLR 475; [1935] HCA 7

In re Basham, decd [1986] 1 WLR 1498

In the matter of Hillsea Pty Limited [2019] NSWSC 1152

Jennings v Rice [2002] EWCA Civ 159

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41

King v Adams [2016] NSWSC 1798

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Low v Bouverie [1891] 3 Ch 82

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

McBride v Sandland (1918) 25 CLR 69; [1918] HCA 32

Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106

Milling v Hardie [2014] NSWCA 163

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

O’Sullivan v National Trustees Executors & Agency Co of Aust Ltd [1913] VLR 173

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51

Palmer v Bank of New South Wales [1973] 2 NSWLR 244

Parker v Clark [1960] 1 WLR 286

Pascoe v Turner [1979] 2 All ER 945; 1 WLR 431

Plimmer v The Mayor, Councillors, and Citizens of the City of Wellington (1884) 9 App Cas 699

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Priestley v Priestley [2016] NSWSC 1096

Priestley v Priestley [2017] NSWCA 155

Ramsden v Dyson (1866) LR 1 HL 129

Riches v Hogben [1986] 1 Qd R 315

Rodda v Ian Rodda Pty Ltd [2015] SASC 95

Ryeldar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65

Scheps v Cobb [2005] NSWSC 455

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Sidhu v Van Dyke in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825

Snelling v John G Snelling Ltd [1973] QB 87; [1972] 1 All ER 79

Steria Limited v Hutchison [2006] EWCA Civ 1551

Stone v Stone [2014] NSWSC 1655

Sullivan v Sullivan [2006] NSWCA 312

Thorner v Major [2009] UKHL 18; [2009] 3 All ER 945

Todd v Nicol [1957] SASR 72

Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52

Varma v Varma [2010] NSWSC 786

Waddell v Waddell [2012] NSWCA 214

Wakeling v Ripley (1951) 51 SR (NSW) 183

Walton v Walton (unreported, 14 April 1994, EWCA Civ)

Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7

Watson v Foxman (1995) 49 NSWLR 315

White v Philips Electronics Australia Ltd [2019] NSWCA 115

Wilson v Arwon Finance Pty Ltd [2020] WASCA 137

Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106

Zupicic v La Camera Paino [2018] NSWSC 692

Texts Cited:

K Handley, “Recent Cases: Estoppel” (2017) 91 Australian Law Journal 812

J D Heydon, Heydon On Contract (2019, Thomson Reuters)

J D Heydon, M J Leeming, P G Turner, Meagher,

Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, LexisNexis, 2014)

J Hudson, “Certainty in Equitable Estoppels: Questions of Taxonomy, Unification and Coherence” (2016) 10 Journal of Equity 137

Ying Khai Liew, “Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion” (2020) 43 University of New South Wales Law Journal 281

Category:

Principal judgment

Parties:

David Moore (First Plaintiff)
Douwine Andreasen (Second Plaintiff)
James Brendan Aubusson (in his capacity as executor of the estate of the late Barbara Murphy) (Defendant)

Representation:

Counsel:
M Condon SC (Plaintiffs)
B Coles QC and P Walsh (Defendant)

Solicitors:
Keypoint Law (Plaintiffs)
Church & Grace (Defendant)

File Number(s):

2015/00279551

Publication restriction:

Nil

Judgment

1. HER HONOUR: Before me for hearing in April this year was a dispute between the plaintiffs (Mr David Moore and his partner, Ms Douwine Andreasen) and the defendant, who is the sole surviving executor (Mr James Brendan Aubusson) of the estate of the late Ms Barbara Murphy (the deceased). In summary, the plaintiffs seek a declaration that the executor holds the whole of the deceased’s estate on trust for them in equal shares as tenants in common, and an order that the estate be transferred to them. In these reasons, where I refer to a party or witness by his or her first name, I do so without intending any disrespect.

2. The plaintiffs’ claim in respect of the deceased estate was initially put on three bases: in contract (see [4A]-[7] of the second further amended statement of claim filed on 20 July 2018); by way of a claim in estoppel (put principally as a proprietary estoppel but in the alternative as an equitable estoppel) (see [8]-[19] of the second further amended statement of claim); and on the basis of a secret trust (see [20]-[23] of the second further amended statement of claim). However, in closing submissions, the plaintiffs indicated that they did not press the secret trust claim (see T 586.18), and it is therefore not necessary here to consider that claim.

Background

3. Briefly, by way of background, the plaintiffs were neighbours of the deceased in Louisa Road, Birchgrove. The plaintiffs acquired their property (No 70) in 1999 (at which time they already owned, and were living in, another house in the street, No 100). Their evidence is that they acquired No 70 (described by them as the worst house in the best street) for the purpose of re-development and sale at a profit. They met the deceased shortly after they acquired No 100 and before they moved into No 70 but, as I understand their evidence, the plaintiffs developed a close relationship only in 2001 after they had moved into No 70 (see, for example, T 132).

4. Prior to her death in 2015, the deceased was (and had been for some time) the registered proprietor of two adjoining properties in Louisa Road, Birchgrove (No 66 and No 68). Those properties comprise the bulk (but by no means all) of the deceased’s not insubstantial estate. Each of the deceased’s two properties comprise two units. The deceased occupied the upstairs unit at No 68, and rented out the remaining three units.

5. The three relevant properties (i.e., No’s 66-70) extend down to Sydney Harbour. Relevantly, the deceased’s upstairs unit at No 68 has views of Sydney Harbour, which views (on the evidence before me) the deceased was keen to retain. I did not accede to an application during the course of the hearing for a view of the properties in order to see that water view for myself – not least because of what I perceived would be the difficulties in conducting a physical view during the course of what was a virtual hearing in the midst of the current COVID-19 pandemic (see T 249) (and it was not suggested that judicial notice could not be taken of the generally perceived advantage, at least in the context of the real estate market, of Sydney Harbour water views).

6. As adverted to above, the plaintiffs moved into No 70 in about 2001. Their evidence is that the proposed redevelopment that they had in contemplation in relation to No 70 included an extension to the rear of No 70 similar to extensions that had been, or were then, being undertaken by the owners of another property in the street (No 72). The plaintiffs’ evidence is that the deceased had expressed to them her unhappiness with the works carried out to No 72 (and indeed it appears that the deceased had not only lodged objections to those works with the Leichhardt Council (now the Inner West Council) (the Council) but had been ordered off the site after attempting to enter the site to check its compliance with the approved plans herself), and that the deceased had voiced her concerns to the plaintiffs about their own foreshadowed works (in particular, that she did not want her property’s views to be built out).

7. The plaintiffs say, in essence, that the deceased promised to leave them her whole estate in return for them looking after her for the rest of her life and for them agreeing not to undertake their desired building works to the extent that those works would impede the view from the deceased’s property. I refer in due course to how that alleged agreement was pleaded in the various iterations of the statement of claim and to the evidence in relation to those alleged testamentary promises. Suffice it for present purposes to note that the plaintiffs say that they performed their side of the agreement but that the deceased did not leave her estate to the plaintiffs under her Will; and that what they are seeking here to enforce is a trust of the kind recognised by Handley AJA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) (at [31]). His Honour there said that:

1. Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime, but is subject to the claims of creditors if the estate is insolvent.

[Citations omitted].

8. The plaintiffs say that testamentary promises of the kind here alleged to have been made to them are not revocable if there is (as they say is here the case) a testamentary contract (or otherwise where there is established an estoppel by encouragement based on testamentary promises – referring to Flinn v Flinn [1999] 3 VR 712 (Flinn v Flinn) at 736, per Brooking JA, Charles and Batt JJA agreeing; [1999] VSCA 134; and Blacket v Barnett [2017] NSWSC 1032 at [274], per Hallen J, to which I will return in due course). The plaintiffs also say that even a “rather vague” promise of future reward can be sufficiently certain to be enforceable, particularly where significant steps have been taken under the agreement (referring to O’Sullivan v National Trustees Executors & Agency Co of Aust Ltd [1913] VLR 173; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 (Palmer v Bank of New South Wales [1973]), affirmed on other grounds by the High Court in Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51); and Wakeling v Ripley (1951) 51 SR (NSW) 183 (Wakeling v Ripley)).

9. Alternatively, the plaintiffs contend that the deceased, and her executor, are estopped from acting contrary to the promises of a testamentary character that she made to them (citing Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58], per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ); Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli v Giumelli) at [3]-[6], per Gleeson CJ, McHugh, Gummow and Callinan JJ); and Pascoe v Turner [1979] 2 All ER 945; 1 WLR 431 (Pascoe v Turner) at 439). They say that the promises made by the deceased in the present case are not uncertain; and they say that a less demanding standard applies where an estoppel is concerned as opposed to a claim in contract (citing Varma v Varma [2010] NSWSC 786 at [437]ff).

10. As to the question of relief, the plaintiffs say that the starting point for the measure of equitable relief in the present circumstances is the proposition that, where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party’s detriment, the relief which is necessary is usually that which reflects the value of the promise (citing Sidhu v Van Dyke). The plaintiffs point to what was said in that regard in Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley [2017]) by Emmett AJA (with whom McColl and Macfarlan JJA agreed) (at [160]; [164]), namely, that:

1. There may be circumstances in which the potential damage to an allegedly estopped party is disproportionately greater than any detriment that would be sustained by the other party, to the extent that good conscience could not reasonably be seen to be precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party. If a person is induced to make a relatively small, readily quantifiable monetary outlay on the faith of another person’s assurances, it might not be unconscionable for the second person to resile from her or his assurances to the first person on condition that she or he reimburse the first person for the relevant outlay. However, where the detriment suffered is of a kind and extent that involves life changing decisions and irreversible consequences of a profoundly personal nature, beyond the measure of money, it may be that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the promisee’s actions were based.

…

1. The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation. The detriment or harm required to ground an estoppel can be any material disadvantage, so long as it is substantial. It need not be quantifiable in the same way as an order for damages. Detriment is not a narrow or technical concept and need not be a quantifiable financial detriment so long as it is something substantial. The evaluation of the substantiality of the detriment must be approached as part of a broad inquiry as to whether repudiation of a promise or representation is or is not unconscionable in all the circumstances.

[Citations omitted]

11. The plaintiffs say that it is for the defendant to demonstrate that the claimed relief is disproportionate to the expectation which has been encouraged (referring to Delaforce at [62]-[69], per Handley AJA). They maintain that, in the present case, the subject matter of the deceased’s promise was, principally, the deceased’s two properties, and that the prima facie measure for relief is the transfer of those properties (and the balance of the deceased’s estate) to the plaintiffs. (Pausing here, I consider there is a significant distinction here between the two properties and the estate as a whole – the Grant of Probate sealed on 26 March 2015 lists the value of the two properties as $9 million, and lists the value of the whole of the estate as $11,732,923.88.) It is noted that damages are not normally an adequate remedy where real property is concerned; a fortiori, it is said, where (as here) what is at stake is ownership of adjoining properties which are of value to the plaintiffs precisely because of their proximity (referring to Mr Moore’s affidavit sworn on 6 September 2018 at [18], in support of his earlier claim for the extension of a caveat over the properties, albeit not read in the substantive hearing, and see oral closing submissions at T 572 in a similar vein).

12. As indicated above, the sole remaining defendant in the proceedings is the surviving executor of the deceased’s estate. The deceased’s former solicitor (who drafted her Will; and who was a co-executor and initially a defendant in the proceedings), Mr Neville Grace, has now also died (though not before he had deposed to his account of various disputed events in relation to this matter – see his affidavit sworn 21 March 2017), and his estate has been removed as a party to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

13. At the outset, the defendant emphasises that the claims against the deceased’s estate are founded on alleged oral representations of the deceased, which only the deceased could have denied. (That, of course, is not uncommon where testamentary promises are concerned.) It is noted that the representations are claimed to have been made in 2004, or (more recently) in 2006; that there are no independent witnesses to the crucial representations; and no written corroboration of them. It is said that evidence of subsequent events is inconsistent with the claimed representations.

14. The defendant says that the element of reconstruction based solely on the plaintiffs’ claimed memory of events and the self-interest of the plaintiffs calls for close scrutiny of the plaintiffs’ evidence. The defendant emphasises that the earliest of the plaintiffs’ affidavits were prepared over twelve years after the claimed representations.

15. It is noted that at the date of the deceased’s death the two properties at No 66 and No 68 were estimated to have a combined value of $9 million. These properties comprised the bulk of her estate. The defendant accepts that Ms Marion Forsyth, a beneficiary under the deceased’s Will (who has now died), gave evidence (on commission) to the effect that the deceased told Marion that the deceased was disposed to leave her estate to the plaintiffs; and that a number of friends and acquaintances of the plaintiffs have given similar evidence to the effect of Marion’s (i.e., that the deceased made statements to the effect that she was disposed to make a Will in favour of the plaintiffs); but the defendant says that none of that evidence is to the effect that the deceased had made such a Will, or that she had taken any steps to make such a Will. It is said that, in the main, this evidence is imprecise as to the dates and context of the social occasions on which the statements are said to have been made.

11. The defendant accepts that Marion’s evidence (which is consistent with some of the plaintiffs’ witnesses and comes from a family source closer to the deceased than the plaintiffs’ witnesses) may provide a more compelling basis for the acceptance of evidence to similar effect given by the plaintiffs’ witnesses. However, it is said that, given the generality, imprecision and incompleteness of Marion’s evidence, it does not lend any greater persuasion to the question whether the deceased should be held to have necessarily bound herself immediately, prospectively and irrevocably to any legal obligation.

12. Finally, by way of introduction, I understand that there have been two applications by the executor(s) for judicial advice, the first heard by Lindsay J in 2016 and the second by Rees J at the beginning of 2019. Quite properly, none of that material was before me on the final hearing. I simply note that this may be relevant if there is, as was foreshadowed, ultimately a dispute as to the executor’s right to be indemnified from the estate for the costs of these proceedings.

Chronology

18. The background to the dispute has been set out briefly above. However, some further elaboration in terms of a more detailed chronology of events is necessary.

Acquisition of No 70 and initial plans for renovation of No 70

19. In 1999, as already noted, the plaintiffs purchased the property at No 70 (for the sum of $1.3 million). They were then living at No 100, which was, as I understand the evidence, in a better condition than the property at No 70 (the latter being described by one of the witnesses as “charmless” – T 165.24). In 2001, the plaintiffs moved from No 100 to live in No 70 (next door to the deceased, who was then living in the upper storey apartment in No 68).

20. In 2002, No 100 was sold (for a profit of around $1.14 million). Those funds (which would have been available for use had the renovation of No 70 proceeded at that stage) were used mainly to retire debt, according to Mr Moore (see T 36.45).

21. Mr Moore deposes that, in about 2002, he prepared and submitted to the Council a development application and a strata subdivision plan to subdivide No 70 into two units and conduct renovations and extensions (see [42] of his affidavit sworn 21 March 2016). That application was lodged on 24 May 2002. Mr Moore’s evidence is that those plans were seeking to maximise the floor area (and subsequently, the property’s re-sale value), and were for the extension of both units to the maximum allowable by the Council. Mr Moore says that this proposed development was the subject of plans that the previous owner had submitted. (Those, as I understand it, were plans that had been prepared by Bonus Architects in relation to the extension of No 70 and No 72 when both properties were owned by the same person. These plans were referred to during the course of the hearing as the Bonus Plans.)

22. On 21 August 2002, the Council sent a letter seeking further information in relation to the development application. Mr Moore says that he then instructed an architect to prepare plans specific to No 70 which included an extension to the rear of No 70 (see [11] of his affidavit sworn 17 April 2018).

23. Mr Moore deposes that he and Ms Andreasen told the deceased what they had planned in relation to the extensions and renovations; and that the deceased said she did not want them to do what had been done at No 72, and that she had lost too much of her water view already (see Mr Moore’s affidavit sworn 21 March 2016 at [44]).

24. The deceased’s second husband, Gerald, died in December 2002. The deceased had no children and no immediate family in Sydney. The deceased had two siblings (Ms Marion Forsyth, who is now deceased, and Mr Don Lack, also known as Fred, who is also now deceased). Both the deceased’s siblings lived on the far north coast of New South Wales (Marion in Tweed Heads, and Don in Ballina). The plaintiffs’ evidence is that the deceased stated to them more than once that she did not wish to enter into a nursing home, and that she wanted to live out her last years at her long-standing home (namely, at No 68). There was evidence that at one stage the deceased had contemplated moving to the north coast to live with, or near to, her siblings, but it is evident that the deceased decided not to do so (see, for example, Ms Andreasen’s affidavit sworn 21 March 2016 at [19]-[21]).

25. Mr Moore’s evidence is that, from as early as 1999, he commenced to provide assistance to the deceased (see his affidavit sworn 21 March 2016 at [15]), and that from December 2002 (after the deceased’s husband died), he started undertaking additional tasks for her (see Ms Andreasen’s affidavit sworn 21 March 2016 at [16]). The plaintiffs’ evidence is that, from 2003, the deceased started to speak to them (both together and separately) about her personal and financial matters (including whether she should move closer to her siblings on the far north coast), and also as to her testamentary intentions (including that her siblings did not want the money and that it was no use leaving it to them as they were both older than her and had no children either) (see, for example, at [40] of Mr Moore’s affidavit sworn 16 March 2016, and [18]-[22], [30]-[36] of that affidavit).

26. Pausing here, there is some inconsistency in the various witnesses’ accounts as to the deceased’s maintenance of her privacy in relation to her financial affairs and, in particular, her testamentary intentions, on the one hand; and the account given by the plaintiffs of the conversations they say they had with the deceased about such matters, on the other hand. No doubt, the plaintiffs see this as consistent with their closeness to the deceased (as being akin to family). I simply note this as one of the inconsistencies in the evidence.

27. Mr Moore deposes that the “original plans” for extension to No 70 were drafted based on the Bonus Plans in about 2001 (at [14] of his affidavit sworn 17 April 2018). According to Mr Moore, after the plaintiffs’ Council plans for the strata conversion of No 70 had been responded to by Council with the Council’s requirements for approval in 2002. In about early 2004, Mr Moore said to the deceased that the plaintiffs would need to renovate and sell the property (to get their equity back and continue with property investments), and that their plan was to turn over some properties over the next few years while they still had the hotel cash flow (from a tourist hotel business that Mr Moore then owned in Newtown known as the Australian Sunrise Lodge (the Hotel)), and to be mortgage-free on their properties when they retired; and that the deceased expressed worry about the plaintiffs moving away as she would be left alone, and said that she did not think anyone else would support her like the plaintiffs had (see at [47] of his affidavit sworn 21 March 2016).

28. Meanwhile, Mr Moore’s evidence is that, from at least around 2004, he undertook works around the deceased’s properties, and it appears that in due course he took on the role of managing the receipt of rents from the tenants of the deceased’s properties (see, for example, at [36]-[40] of his affidavit sworn 21 March 2016).

Alleged agreement

29. In his affidavit sworn 21 March 2016 (at [48]), Mr Moore deposes to a conversation with the deceased (which he first placed as occurring in early 2005, but which he corrected – with a number of consequential amendments, at the commencement of the giving of his evidence at the hearing, to occurring at some time in late 2004), in which he says that the deceased said, among other things:

David, you know that my solicitor told me quite a while ago that I have to update my Will?

I have talked to my brother and sister about it. You and Dee have been so good to me. I know I can trust you to look after me. I want you and Dee to help me to stay living here. Will you help me to do that as I get older? I know Dee and you have been looking after things for Dee’s mother and having her cared for at home all these years. I want you and Dee to do the same thing for me if I need it in the future. I will see to it that in my will, everything goes to you and Dee when I am gone.

and that the deceased also said that:

…I would want you to let me keep my view when you do your renovation. Would you do that? You can do whatever you want with the places when I’m gone.

30. Mr Moore deposes that he told the deceased that this would “really change” all of their plans and that he would talk to Ms Andreasen about it, and they would discuss it and think through it. He then deposes that, after “fully discussing” everything with Ms Andreasen, a couple of days later he went to see the deceased in her unit and they had a conversation in which he said to the deceased (at [50] of his affidavit sworn 21 March 2016):

Dee and I have talked it through, and we have made a decision. We will continue to help and support you living here at home and we promise to make sure you are okay and that you are looked after as you get older. We are sure that we can figure out a way that we can renovate without building out your view. Then if you leave everything to us in your will, we are very happy with that. Dee will also speak to you about it herself.

and that the deceased responded that:

I am so happy that you have agreed to this. I know I can trust you both. This has taken a load off my mind. It’s a good idea if your kids knew about this too. Will you tell them about it?

31. Mr Moore says that after this “agreement” was reached, the deceased and the plaintiffs spoke several times, and that the deceased said that she was happy “we have made this arrangement”, and that she felt more settled and could relax.

32. Ms Andreasen, in her affidavit evidence, deposes to Mr Moore having conveyed to her the deceased’s “offer”, and to a conversation she had with the deceased in which she says the deceased said (at [46] of her affidavit sworn 21 March 2016):

David told me he talked to you … David and you have been such a help to me … It’s been such a wonderful support to me having you two next door … Is it all right that you help me to stay in my place as I get older? I know you have been looking after everything for your mother very well and I’d like you to do the same for me if I ever needed it. And I will look after you in my will. Everything I own when I die will go to David and you and down through your family.

[Ellipsis in the original]

33. Pausing here, the refrain that everything would go “down through [the plaintiffs’] family” appears consistently in various witnesses’ accounts of conversations with the deceased. It involves an apparent assumption on the deceased’s part as to the long-term intentions of the plaintiffs (who, it will be remembered, had, according to them, been intending to renovate No 70 and sell it at the time), but nothing here turns on this.

34. Ms Andreasen in cross-examination gave evidence that, after this “agreement” was reached, the deceased’s manner of requesting assistance changed (in that she displayed a sense of entitlement – see T 142.37ff).

Revised renovation plans for No 70

35. In early 2005, revised extension plans were drawn up (see Mr Moore’s affidavit sworn 17 April 2018 at [15]). The plaintiffs say that this was to accommodate the deceased’s concerns about the proposed redevelopment of No 70. Mr Moore says that he showed the deceased the reduced extension plans, marked up to demonstrate the diminished aspect of the reduced extension (and that the deceased supported the application) (see T 52).

36. Mr Moore deposes that in March to April 2005, after many conversations and taking into account the deceased’s wishes about retaining her water view, the amended plans were prepared for the extension to No 70. Mr Moore says that he was trying to minimise the loss of the deceased’s water view, but that this reduced the available living space for the proposed first level apartment and that, to accommodate this, he designed the extra space on the level in the roof space, which required an alteration to the roofline (see at [55] of his affidavit sworn 21 March 2016).

37. In May 2005, the amended plans were submitted to the Council. Mr Moore deposes that the Council rejected the plans partly on the grounds of the change to the roofline (at [55] of his affidavit sworn 21 March 2016). However, as Mr Moore was taken to in cross-examination, the preliminary assessment advice from the Council in July 2005 identified a number of problems with the proposed plans, not just the amended roofline (T 48.38ff). The Council’s view seems to have been that a more reasonable form of development in keeping with the amenity of the neighbourhood would be one compatible in form and scale with that which had been approved in relation to No 72 (that being the extension to which the deceased had so vehemently objected).

38. On 29 August 2005, the Council made the decision to reject the amended plans (including, but not solely, on the basis that Council would not permit changes to the roofline) (see the Council’s letter dated 30 August 2005). Mr Moore deposes that he and Ms Andreasen then put the extension and renovation of No 70 “on hold” in late 2005 while they considered what to do; and that subsequently he became reconciled to the realisation that they would not be able to do the extensions to No 70 and sell it as originally planned, and at the same time be able to provide “the support and consideration” that they had promised to the deceased (see at [55] of his affidavit sworn 21 March 2016). He deposes that he and Ms Andreasen decided that they would continue in the role they had promised to the deceased, and that they continued living at No 70 “on the basis that any loss in capital growth would be compensated eventually from [the deceased’s] estate” (see at [55] of his affidavit sworn 21 March 2016). In cross-examination, Mr Moore said he thought he would have told the deceased that the plans had been rejected, but he accepted that he had not told the deceased at any time of the decision not to proceed with the renovation at all or that he had suffered by reason of not carrying out the renovation (see at T 116-118). (That is, of course, relevant to the deceased’s knowledge of any alleged detrimental reliance on her testamentary promises at least in relation to the decision not to pursue the proposed redevelopment of No 70.)

39. Mr Moore says that, as a result of the decision the plaintiffs had made to put the renovations on hold, they capitalised the interest on their mortgage over No 70 (resulting in a loan amount of around $1.91 million) and drew down further instalments of principal from lines of credit (see, for example, at [383]-[386] of his affidavit sworn 21 March 2016).

Events from 2005

40. The plaintiffs each gave evidence as to the role they took on to support the deceased from 2005 onwards. (A schedule of the services the plaintiffs say they provided to the deceased was included as an addendum to their written closing submissions and is appended at the end of these reasons. It is fair to say that the schedule is drafted in fairly broad terms.)

41. In about mid-2006, Ms Andreasen’s daughter (Maia) and her now estranged husband (Mr Juan Renshaw) moved into the upstairs level at No 70 with their young daughter. The entry door for that level shared a landing with the deceased’s front door. Maia and her family lived at No 70 until about 2007. Both Maia and Mr Renshaw gave evidence as to various discussions with the deceased about the arrangement between the deceased and the plaintiffs, to which I will refer in due course.

42. Mr Moore deposes that the deceased continued in good health until around 2011 when her eyesight started to deteriorate noticeably; and that, from about 2009 onwards, he accompanied the deceased to many appointments with an ophthalmologist (usually Dr Horowitz) at the Sydney Eye Hospital; and then in about September 2012 to a private ophthalmologist (Dr Harrisberg) at Newtown; and in March 2013 to a Dr Con Moshegov for eye surgery (see his affidavit sworn 21 March 2016 at [66]ff).

43. In mid-2012, the deceased and Mr Moore went to visit the deceased’s solicitor (the late Mr Neville Grace). According to Ms Andreasen, this was to discuss the drafting of a power of attorney and enduring guardianship document in favour of Mr Moore (see her affidavit sworn 11 May 2018 at [14(b)]). However, it does not appear that any such documentation was prepared or executed at that stage, nor does there seem to have been any file note made by Mr Grace of any such discussion. Ms Andreasen’s evidence is that the deceased said to her that she wanted Mr Grace to meet Mr Moore so that Mr Grace knew him and could talk to Mr Moore about her affairs (see at [14] of her affidavit sworn 11 May 2018). I interpose to observe that this would be consistent with Mr Moore taking on a primary role in assisting the deceased but there is no file note of Mr Grace to corroborate such a visit (and on one view it is inconsistent with the plaintiffs’ evidence as to the deceased’s distrust of lawyers and unwillingness to incur legal fees). Ms Andreasen also deposes to conversations during the period from mid-2012 to 16 January 2014 with Mr Grace, in one of which she deposes that Mr Grace said to her and Mr Moore that if the deceased did not appoint an attorney and guardian her affairs would be placed under the control of the Public Trustee and Guardian (now the NSW Trustee and Guardian), and that this “would be most unwise” (see her affidavit sworn 11 May 2018 at [14]). (As adverted to, Mr Grace, in his affidavit sworn 27 March 2017, made before he died, denies a number of the conversations attributed to him by the plaintiffs.)

44. During the course of 2012 and 2013, the deceased had surgery and treatment in respect of her right eye, and in about mid-June or July 2013 the deceased was diagnosed with melanoma. Hospital and other medical records from around this time that are in evidence refer variously to Mr Moore as the deceased’s guardian, or next of kin, or her carer (see, for example, Ex L). By late December 2013 and January 2014, the deceased was undergoing radiation therapy.

45. In January 2014, Mr Moore made an appointment (he says, at the deceased’s request) with Mr Grace for the purposes, he says, of arranging for the appointment of an enduring guardian for the deceased and the execution of a power of attorney by the deceased (see from [138] of his affidavit sworn 21 March 2016). I note that what occurred at that meeting is hotly in dispute (see below).

Meeting on 16 January 2014

46. The plaintiffs drove the deceased to Mr Grace’s office on 16 January 2014. It is not disputed that only Mr Moore accompanied the deceased into the meeting with Mr Grace. The dispute is as to whether he remained in the room when Mr Grace took instructions from the deceased as to her Will; who else was there; and where the meeting actually took place (i.e., in Mr Grace’s office or in a small meeting room at the firm).

Mr Moore’s version

47. According to Mr Moore, the enduring guardian document was discussed first; Mr Grace asked the deceased if she wanted Mr Moore to be her guardian; the deceased responded that she did; and he (Mr Moore) asked that the deceased agree to him sharing that role with Mr Grace, to which the deceased agreed. Mr Moore says that the enduring guardianship document was “sent away” for drafting.

48. A document appointing Mr Moore and Mr Grace jointly as the deceased’s enduring guardian was in due course executed by the deceased (which document was witnessed by Mr Aubusson, and by a legal secretary in Mr Grace’s office).

49. Meanwhile, Mr Moore says that next, after the enduring guardianship document had been sent away for drafting and before its execution, Mr Grace “unexpectedly” produced another document, placed it on the table in front of the deceased and told the deceased that she had to update her Will; that her Will was forty years out of date and nominated her late husband as executor; and that she had to write a new Will. Mr Moore says that Mr Grace asked the deceased who she wanted to be her executor and that she replied “David”. Mr Moore says that he (Mr Moore) asked if the deceased would agree to Mr Grace being her executor; and she did. Mr Moore deposes that Mr Grace then said to the deceased:

In your Will, if your brother and sister die before you do, all your estate will go to the State Government. Is that what you want? Do you want your estate to go to the State Government?

50. To that, Mr Moore says that the deceased said “[t]hat’s no good” and that, when asked who she wanted put there instead of the State Government, the deceased turned to Mr Moore and said: “I always thought it would go to you David, and down through your family”. Mr Moore says that Mr Grace responded by suggesting that the deceased leave her estate to charity rather than the State Government, and suggested St Vincent’s Hospital. Mr Moore gives evidence that he then suggested to the deceased that half go to the Royal Prince Alfred Hospital, which was where she was being treated.

51. The Will was prepared, and there is no dispute that the deceased signed the Will prepared by Mr Grace on that occasion. Execution of the Will was witnessed by Mr James Creech (a senior partner in Church & Grace) and Ms Jessica Macdonald (a legal secretary). Mr Moore deposes that Mr Grace briefly verbally summarised the Will to the deceased, but that neither the deceased nor he read any part of the Will before it was signed. On Mr Moore’s account, therefore, he was aware of at least the summary of the Will’s contents at that meeting.

52. Under the Will, the deceased appointed Mr Grace and the defendant, Mr James Aubusson (as adverted to, a partner in the same legal practice with Mr Grace), as the executors and trustees of her Will. She left her estate equally to her brother, Don, and her sister, Marion (the Will incorrectly identifying Marion by her former surname, Davis), with provision, if either or both of those shares should lapse, for the said share(s) to be divided equally between Royal Prince Alfred Hospital and St Vincent’s Hospital. (Mr Moore deposes at some length to aspects of the Will that he says were done without any discussion with the deceased – including reference to her sister Marion by her former surname.)

53. No power of attorney was prepared or executed on that occasion. Mr Moore says that after the deceased signed the Will she was tired and she just wanted to go home. He denies that there was any discussion about the Will in the car on the way back to the deceased’s home but he also deposes that on the way home the deceased said “I am not happy at all”.

54. Insofar as there was a suggestion (put to various of the witnesses in cross-examination and deposed to by Mr Moore in his affidavit sworn 17 April 2018 at [65]) that Mr Grace was hard of hearing (seemingly to support an inference that Mr Grace may not have heard the deceased’s expression of testamentary intention), this might be Mr Moore’s rationalisation for what would otherwise on any view of the matter be the rather surprising situation (on his account of what occurred), of a solicitor not only not acknowledging but completely ignoring, and acting inconsistently with, express instructions given to him by a client. However, it is not established on the evidence.

55. Mr Aubusson’s evidence was that Mr Grace had a hearing aid probably in the last two or three years of his life; and that before that “his hearing was not great” (T 420.23). Mr Creech was not aware that Mr Grace had any hearing problems in 2014; although Mr Creech did say that Mr Grace did have hearing problems later (T 407.26). He accepted that it was possible that Mr Grace had had hearing aids inserted some time in about 2014, and that when that occurred he detected a significant improvement in Mr Grace’s capacity to hear (T 408.7ff). He said that the main problem had been if there was a lot of background noise (and the meeting rooms had no background noise) (T 408.25ff). Ms MacDonald did not recall Mr Grace having any difficulties with his hearing or difficulties attendant on his age (T 395.12). Ms Hatzimeletiou did not recall Mr Grace’s hearing being “that bad” in 2014, and did not understand him to have some problems consequential on his age (see T 385.45).

56. Suffice it on this issue to note that it is possible (if Mr Moore’s version of events were to be accepted, i.e., that he was in the room at the time that the instructions were given in relation to the Will) that the words he attributes to the deceased were spoken and simply not heard by Mr Grace. However, the evidence as to any hearing problems suffered by Mr Grace at the time (such as it was) suggests that it is unlikely that he would have had a difficulty hearing someone sitting directly in front of him in a small office or meeting room and without (presumably) the kind of background noise one might encounter in a restaurant or social gathering. It also seems implausible that such a difficulty in hearing would lead to a complete misapprehension of the client’s instructions or one that would not have been clarified at some point during the taking of instructions and summary of the Will provisions as drafted. Be that as it may, I cannot accept Mr Moore’s account of the 16  January 2014 meeting for the reasons that I will come to shortly; and therefore nothing turns on whether Mr Grace might or might not have been hard of hearing at the time of that meeting.

Mr Grace’s version

57. As adverted to above, there is much dispute as to what occurred during the attendance on Mr Grace on 16 January 2014. As noted above, Mr Moore deposes that the deceased told Mr Grace that she wanted her estate to go to him (Mr Moore) and down through him to his family (and he says that present during those instructions were several lawyers and office staff from Mr Grace’s office). Mr Grace (who, again, I note is now deceased) swore an affidavit in these proceedings in which he gave a very different account of his instructions and, in particular, deposed that Mr Moore was not present in the room when he took instructions from the deceased in relation to her Will. Each of Mr Aubusson and Mr Creech was cross-examined as to the events that occurred when they witnessed the execution of the respective documents; as were the office staff members who also witnessed the execution of one or other of the documents (see below).

58. In his affidavit sworn 21 March 2017, Mr Grace deposed to his standard and invariable practice in relation to the taking of instructions from a client for the preparation of a Will or codicil, including that (at [7]): he did not take instructions in the presence of another person except a Church & Grace partner or employee, or possibly a spouse where the persons wished to have mirror Wills; that he explained to the client the effect of the Will before it was executed, including a précis of certain matters, but not necessarily reading the whole document out to the client; that he explained the effect of a codicil; that he did not tell or purport to tell a client what the client must do (or coerce a client into acting in any particular way); that where a client had executed a document appointing a guardian, that he offered certified copies to the appointee (if present) or (if not present) posted the certified copies to the appointee; that before the client’s death he did not discuss the contents of a testamentary document executed by the client with anyone except the client (other than in some circumstances another partner or employee of the firm or another person with whom the client had authorised him to discuss those contents); and that after the death of a client he did not discuss the contents of a Will or codicil with any person other than the executors, a beneficiary (but only as to that beneficiary’s entitlement), or on some occasions a partner or employee of the firm or, if he was the executor, a person who he considered it appropriate to discuss such matters with in the due administration of the estate. Mr Grace deposed that he did not express to persons interested in the Will of a deceased client views about whether the deceased acted prudently or otherwise in making a Will in the terms of that client’s last Will. Mr Grace also deposed to the practices that he commonly, and particularly with elderly clients, adopted (at [8]).

59. As to the circumstances in which the deceased executed the relevant documents in the present case, Mr Grace deposed to the history of his client relationship with the deceased, and as to the appointment on 16 January 2014. It is relevant here to set out that evidence concerning the 16 January 2014 meeting in full:

1. On the day that Barbara made her will dated 16 January 2014, Mr Moore and Barbara arrived in Church & Grace’s waiting room and I showed them into an interview room. The following occurred in the course of the meeting:

   (a)    After pleasantries, words to the following effect were spoken:

   Mr Moore:   Barbara wants to appoint me as her guardian.

   Me [addressing Barbara]: The appointment of a guardian means that you allow a person to make personal decisions about your healthcare, hospitalisation and treatment. It is not a power of attorney. It is purely to allow management of your personal wellbeing if you are unable to do so.

   Me [addressing Mr Moore]:   Do you understand what accepting the appointment entails?

   Mr Moore:   Yes.

   Me:   You are happy to act as such?

   Mr Moore:   Yes, but would you also act as a guardian.

   Me:   The document appointing the guardianship may be drawn so that either you or I are authorised to act as guardians. It would not be practicable for us to act jointly as there may be occasions on which a decision is required and I may not be available. My involvement would therefore only be necessary if you were unable to act. I do not wish to have day-to-day involvement in that role. Is that what you want Barbara?

   Barbara:   Yes.

   Me:   If you would like to wait, I will prepare the document and it can be signed today.

   (b)    I left the room and organised for a document to appoint guardians to be prepared. This was a quick process as the document is in a relatively standard form and it was necessary for me to dictate only the details of Barbara’s name and Mr Moore’s name and that I was the second guardian. My secretary typed the document.

   (c)    I returned to the interview room with the appointment of enduring guardian document.

   (d)    Brendan Aubusson, one of my partners, came to the interview room to witness the execution of the appointment of enduring guardian. I had requested that Mr Aubusson do so before I returned to the interview room.

   (e)   I introduced Mr Aubusson to Barbara.

   (f)   I said to Barbara words to the effect of “We want a good signature on the document. As this is a strange pen, try it out first here.” I handed Barbara a piece of paper and a pen.

   (g)    The appointment of enduring guardian document was executed by Barbara and then by Mr Moore and me and as guardians [sic]. Mr Aubusson witnessed each of us execute the document.

   (h)    Mr Moore said words to the following effect “Barbara also wants to discuss with you her will”. (I do not presently recall whether Mr Aubusson left the room before these words were spoken or when Mr Moore later left the room.) I then looked at the documents in the deed packet (which contained documents held by Church & Grace in safe keeping for Barbara) which I had with me and words to the following effect were spoken:

   Me:   We have discussed your will previously. We have only a copy of your will and it is old. And, as we both know, Gerald has died. While you are here, would you like to make a new will?

   Barbara:   Yes.

   Mr Moore:   Barbara wants to make a new will with provision for me. [my emphasis]

   Me [addressing Mr Moore]:    Please if you would leave the room, I will discuss this with Barbara.

   (i)    Mr Moore left the room, leaving Barbara and me as the only persons present in the room. (As stated above, I am not presently able to recall whether it was at this point, or earlier, that Mr Aubusson left the room.)

   (j)    … After Mr Moore left the room, the conversation continued, as detailed below, with Barbara taking what I perceived to be a positive and active role.

   (k)    Words to the following effect were then spoken:

   Me:    What is the nature of your assets? You have the two houses. What else?

   Barbara:    The houses are worth about $7 million. Bank accounts with Commonwealth Bank and investments in Fiducian.

   Me:   Whom would you wish to have as your executors? Gerald is no longer able to act.

   Barbara:   I want Church & Grace.

   Me:   It will need to be individuals – me and one of my partners as I am no longer 21. If Church & Grace are to be executors, there will be an executor’s fee in the same way as there would be for a trustee company which was your executor.

   Barbara:    Yes, that’s fine

   Me [referring to the copy of Barbara’s then will which was contained in the Church & Grace deed packet]:    The present document appoints Gerald as your executor and beneficiary. There is a provision in that will that on his death that you wish your estate to be divided equally between your brother and your sister.

   Barbara:   Leave it to my brother and my sister equally.

   Me:   I remember that one of the Birchgrove properties was inherited by you from Gerald. Do you wish to make any provision for Gerald’s family?

   Barbara:   No.

   Me:   What are your brother’s name and your sister’s name please?

   Barbara:   Donald Frederick Lack and Marion Davis.

   Me:   If one of them were to die, what would you wish to happen to that share? Do you want it to go to the survivor?

   Barbara:   What else can I do?

   Me:   If you don’t wish to leave it to anyone else in particular, you could consider charities, such as St Vincent de Paul, and hospitals.

   Barbara:   Yes. Leave it to hospitals - Royal Prince Alfred and St Vincent’s Public.

   Me:   If you would like to wait again, I will prepare the will and you can sign it today before you leave.

   Barbara:   Yes.

   (l)    I left the interview room and prepared the Will. This was also a quick process as the document is in a relatively standard form and it was necessary for me to dictate only the details of the executors, the beneficiaries’ entitlements and to identify other clauses in usual form which should be included.

   (m)    I arranged for the 2 persons who witnessed barbara’s execution of the Will to go to the interview room to do so and I returned to the interview room with the completed Will ready for execution.

   (n)    I explained the effect of the Will to Barbara in accordance with my practice detailed in paragraph 7(b) above. I do not presently recall the words I spoke to do so.

   (o)    As the Will would authorise the executors to be paid for acting in their capacity as trustees, in accordance with my usual practice I gave to Barbara a notice in the form I use in such circumstances (a copy of which is document 1 on page 1 of the Bundle) and explained the words on the document to Barbara. (The handwriting on document 1 on page 1 of the Bundle is mine; it was written after Barbara had let Church & Grace’s premises when I was putting documents into Church & Grace’s file.)

   (p)    Words to the following effect were then spoken:

   Me:   Do you understand the will?

   Barbara:   Yes.

   Me:   Are you happy to sign?

   Barbara:   Yes

   (q)    The Will was then signed by Barbara and the two witnesses in her presence and in the presence of each other and of me.

   (r)    Words to the following effect were then spoken:

   Me:    Would you like us to keep the will for you in our strong room?

   Barbara:   Yes.

   Me:    Would you like a copy of the will to take with you?

   Barbara:   No.

   (s)    I accompanied Barbara to Church & Grace’s reception area (where Mr Moore was waiting) to see her off. I do not presently recall any words which I spoke, or the substance of any words which I spoke. My common, but not invariable practice with elderly clients, when seeing them out of the office, is to summarise what has been done, such as “Barbara, you have appointed guardians and made a new will. That is a good day’s work”.

   (t)    Barbara was in Church & Grace’s office for not more than one hour (or thereabouts).

   (u)    On 16 January 2014 I was aware that Barbara was suffering from cancer. I do not presently recall how or when I became aware of that.

   60. Mr Grace thus confirmed that Mr Moore attended his office, but attributes to Mr Moore the statement that the deceased wanted to discuss her Will with him, that the meeting took place in an interview room, and (significantly) that the deceased wanted to make provision for him (i.e., Mr Moore) and that he asked Mr Moore to leave when he took instructions from the deceased as to her Will.

   61. Relevantly, Mr Grace deposed that he explained the Will to the deceased in accordance with his normal practice. He took a note of the details of the Will (see his affidavit at [18]). In his affidavit (read with a limitation under s 136 of the Evidence Act 1995 (NSW) (Evidence Act) because Mr Grace was no longer available for cross-examination by the time of the hearing), Mr Grace expressed some concerns as to whether the deceased was being influenced by Mr Moore, and he deposed that, for those reasons, he took the steps set out in [21] of his affidavit. Pausing here, the relevance I attach to this is not that there was a basis for Mr Grace’s concerns (I express no opinion to whether they might be said to have been well-founded or not) but simply that it would make sense if Mr Grace had any such concerns at the time for him to adhere to what he has deposed was his normal practice when taking instructions as to wills. He also deposed to his observations of the deceased on that day (relevant no doubt to him satisfying himself, as an experienced estate practitioner, albeit not as a medical expert, as to her testamentary capacity).

Mr Aubusson’s version

62. Mr Aubusson gave evidence (and was cross-examined) as to his role as witness to the execution of the enduring guardianship document. He said his total involvement in the events of 16 January 2014 was as set out in his affidavit sworn 24 March 2017 (which is limited to confirming his signature on the Appointment of Guardian document, but otherwise deposes to not actually recalling the witnessing of that document specifically). In cross-examination, there was the following exchange (at T 423.13ff):

Q.    Do you say you have no recollection whatsoever about this meeting on 16 January 2014?

A.    I have little recollection of the meeting on 16 January. My, my recollection is that Mr Grace asked me if I would come into the Church & Grace small meeting room. I remember a frail lady sitting at the end of the table and I’ve subsequently - and I, I, I recall that I was slightly put out about that because I was in the middle of doing some quite - I was busy doing other things. I’ve now - I’ve, I’ve seen since that I witnessed the guardianship document. That is a routine thing that I have done many times so it, it, it’s something that really wasn’t in the forefront of my memory and that, that is my recollection and then I was, I was there for probably less than five minutes and, and left.

Q.   Mr Moore was present on that occasion, was he not?

A.    He was because I witnessed his signature.

Q.   Was he present when you came into the room?

A.    Yes.

Q.    And was he present when you left the room?

A.    Yes

63. Mr Aubusson denied Mr Creech and Ms MacDonald were present when he signed the enduring guardianship document. He denied that there was a discussion about the deceased’s Will on this occasion; denied that there was some discussion about a power of attorney potentially being executed; and did not recall that the deceased said that she was tired and wanted to go home. He was adamant that the only meeting he attended was the meeting to which he had deposed in this affidavit, which was five minutes long and required him to witness an enduring guardianship document (T 424.41ff).

Mr Creech’s version

64. Mr Creech in his affidavit (sworn 24 March 2017) sets out his recollection of the events and of the practices that he said were invariably followed when executing those particular documents. He said that he had a clear recollection of witnessing the execution of the documents in this case (T 400).

64. Mr Creech’s evidence was that it was not the normal course for documents to be executed in Mr Grace’s office; the 16 January 2014 occasion was the first occasion that Mr Creech could recall of having a testamentary document signed in Mr Grace’s office; and he denied that it was reasonably common for that to occur (T 401).

65. Mr Creech was adamant in his denial that he had attended a meeting in January 2014 with Mr Moore, or that he had been present at any discussion about an enduring guardianship (T 408).

66. As to the circumstances on 16 January 2014 in relation to his witnessing the Will, there was the following evidence (at T 409.4ff).

Q.   Can I suggest to you that in your presence Mr Grace asked Mrs Murphy with Mr Moore present about the terms of the will?

A.    No. I was never at any such meeting and I’m not aware of any such meeting.

Q.    Mr Moore said to Mr Grace, “I’ve always thought it, the estate, would go to you, David, and down through your family.”

A.    As I said, I am not aware of any such meeting.

Q.    What’s your recollection, please, of the meeting that you attended on 16 January 2014? And could you humour me by closing up your affidavit for the moment? I’m obliged. What’s your recollection?

A.    That particular - or it wasn’t a meeting as such. I was requested or asked to come and witness the signing of the will along with the secretary from our office.

…

Q.    … I’m simply asking for your recollection. I’m asking you some questions about the meeting on 16 January 2014. Was that meeting in the boardroom or in Mr Grace’s office or somewhere else?

A.    I think it was in the small meeting room.

…

Q.    Where was Mr Grace sitting?

A.    He was sitting, as you walked in the door, he was sitting in the first seat facing across the table.

Q.    Was it the left-hand side or the right-hand side?

A.    Left-hand side as you walked in the door.

Q.    Where was Mrs Murphy?

A.    She was sitting directly opposite him

Q.    What happened when you entered the room?

A.    When we entered the room, Mr Grace said that Mrs Murphy was now going to sign her will.

Q.    What happened after that?

A.    Mr Grace would have said to Mrs Murphy, he normally gave a very small precis of what was in the will and he would then say, “Mrs Murphy is now going to sign her will.” We would, we would have been introduced to her, you know, as we walked in. It was Mr Grace’s practice to do that, “This is Mr Creech from the office, this is Jessica, our secretary.” And then we were asked to, Mrs Murphy then signed her will and we witnessed the signing of her will.

68. Mr Creech said that after he executed the Will as a witness he was “pretty sure” he would have left the room. He was not too sure what Mr Grace did after that. Mr Creech said that he went straight back to his office. He was not aware that at that meeting a power of attorney was to be executed.

69. As to his observations of the deceased on that occasion, Mr Creech said that she was an elderly lady and very frail, but he could not say that she looked fatigued (T 412.35). He stated that he only witnessed the Will, not the guardianship document.

Ms MacDonald’s version

70. Ms MacDonald was the other witness to the Will. Ms MacDonald was working at the time as a legal secretary and paralegal at Church & Grace. In her affidavit sworn 17 March 2017, Ms MacDonald said that she would witness the execution of documents about 10 to 20 times a year, including Wills. She said Mr Grace was in charge of the probate practice at the firm at the time, and that she would frequently witness Wills for Mr Grace (T 394). Her recollection is that some of these wills were executed in Mr Grace’s office but some also were executed in the meeting rooms; she said that “it just depended” (T 394.40). She recalled Mr Creech sometimes witnessing Wills with her but she could not recall specifically recall if this was in Mr Grace’s office.

71. Ms MacDonald could not recall on this occasion where the deceased’s Will was executed, or (other than by reference to the document) who was present. She knew nothing about the circumstances in which the deceased’s Will was prepared. She said it was possible that sometimes family members would be present but that, generally speaking, if that occurred it would have been a spouse, but that such an occurrence was only the odd occasion; and again that it would have been an odd occasion if there would have been a family member other than a spouse present (T 396).

Admission to hospital

72. Returning then to the overall chronology of events, on the day after the appointment with Mr Grace (i.e., on 17 January 2014), the deceased was admitted to Royal Prince Alfred Hospital. The clinical notes of Balmain Hospital Emergency Department (which is where Mr Moore took the deceased before she was transferred to Royal Prince Alfred Hospital) referred to the deceased’s “cognitive decline”, and to her “gradual deterioration in function, cachectic, and dehydrated”, and to her inability to care for herself at home (see Ex L).

Power of Attorney

73. On 20 January 2014, the deceased was transferred back to Balmain Hospital. On 22 January 2014, Mr Grace attended at Balmain Hospital (with Mr Creech) and the deceased executed a Power of Attorney that Mr Grace had prepared (at Mr Moore’s request) in favour of Mr Moore and Mr Grace.

74. Mr Grace deposed to the circumstances in which he subsequently prepared the Power of Attorney as follows (at [25] of his affidavit sworn 21 March 2017):

1. About a week after Barbara had made her Will, I received a telephone call from a male person who identified himself as Mr Moore. After pleasantries, words to the following effect were spoken:

   Mr Moore:   Barbara is in Balmain Hospital. She wants to appoint attorneys to look after her affairs. She would like to appoint me. Would you also act as an attorney with me?

   Me:   Powers of attorney may appoint attorneys to act jointly (where all must agree and sign) or severally where anyone attorney may act and sign. I would be happy to act as one of the attorneys, so that either you or I can act separately and not jointly. That will be similar to the guardianship appointment.

   Mr Moore:   That will be acceptable.

   Me:          I shall be out at about 11 o’clock.

2. As Barbara was a long standing client and was in hospital, I re-arranged my morning, immediately prepared a form of enduring power of attorney and, with James Creech (a partner of Church & Grace), attended upon Barbara at the Balmain Cottage Hospital. The following occurred at the hospital:

   (a)    Upon our arrival at the hospital, Barbara was sitting in a common room area where there was a TV.

   (b)   Barbara and we moved to a veranda area, where there was a table and more privacy.

   (c)    Then I showed Barbara the enduring power of attorney document which I had prepared. I then said to Barbara words to the effect of those set out below. I took the initiative in explaining the effect of the document to Barbara as she was my client and as I had prepared the document.

   This is what is called an enduring power of attorney. By signing you are authorising each of Mr Moore and myself to be your attorneys to manage all of your property and financial affairs on your behalf. The attorneys are required to act in your best interests. If they do not do so, there are legal remedies available. This power of attorney will remain valid even in the event of your becoming physically or mentally ill, but you can revoke it before those events may occur.

   (d) Mr Creech then exchanged words with Barbara. I do not presently recall the words which were spoken or their substance. The exchange was the sort of exchange which I would have expected to have been initiated by a solicitor who was proposing to give a certificate under section 19 of the Powers of Attorney Act 2003.

   (e)    I do not presently recall whether I asked Barbara to practice [sic] her signature before she signed the power of attorney.

   (f)    The document was executed by Barbara.

   75. The Power of Attorney was witnessed by Mr Creech.

Subsequent events

76. As adverted to, Mr Creech accompanied Mr Grace to the hospital for the execution of the Power of Attorney. The document had already been prepared at that stage. He said that he explained to the deceased what the document was (at [18] of his affidavit sworn 24 March 2017). By 2014, Mr Creech was a senior partner of the firm. He assumed that he had been asked to attend in order to be able to make the declaration that the deceased understood what she was signing and to certify she signed of her own free will (T 403).

77. Mr Creech was questioned as to the Law Society guidelines (issued in December 2003) for solicitors preparing an enduring power of attorney (T 403.27ff). Mr Creech said that he was not aware of the obtaining of a doctor’s advice. As to the choice of attorney, Mr Creech said that he would not have had any hesitation about Mr Grace’s appointment; but he could not form an opinion about Mr Moore as he did not know him. He said that he understood that he was a next door neighbor and that he may have been providing some assistance to the deceased (T 404). He thought Mr Moore was in the room when it was signed. Later he said that he had not met Mr Moore beforehand. Mr Creech said he did not discuss with the deceased the appropriateness of Mr Moore as a donee of the Power of Attorney (but that he would have taken a file note if he thought there was a problem on the day and he had not done so) (T 406).

Discharge from hospital

78. The deceased was discharged from Balmain Hospital on 24 February 2014. In preparation for the deceased’s return home, others of the deceased’s neighbours (principally, Mr Kevin Condon, who rented the apartment below that of the deceased, but also his then wife, Ms Lesley Manuel-Condon, and another neighbour, Ms Aanya Roennfeldt-Bongers) spent some time cleaning the deceased’s apartment (which, in his affidavit sworn 7 March 2018, Mr Condon has deposed was in a neglected state). From that time, there was full time in-home care for the deceased (arranged by the plaintiffs but funded by the deceased). The two carers gave evidence in the proceedings, to which I will refer in due course.

79. In early March 2014, just after the deceased returned home from hospital, the deceased’s sister, Marion, visited her. Pausing here, I note that there was some contention in the hearing as to the level of contact between the deceased and her siblings over the years (and criticism made by the plaintiffs insofar as they had attempted to paint the deceased’s sibling as uncaring). Suffice it here simply to note that the deceased’s social history as recorded in various of the medical notes (and I accept the caution with which such notes should be treated – see at [223] below) suggests that in the deceased’s final years there was not regular contact between the siblings, and that the deceased’s main “carer” or point of contact for the deceased’s treating doctors was Mr Moore.

80. The plaintiffs depose that in March 2014 (and between then and July 2014) they had conversations with the deceased in which the deceased reiterated that she wanted her estate to go to the plaintiffs and that her Will must be fixed (see Mr Moore’s affidavit sworn 21 March 2016 at [217]). Mr Moore deposes to a conversation with Mr Grace in about March 2014 about organising a further meeting to have the deceased’s Will changed (see at [218] of that affidavit). (There is again a dispute as to what was said in that conversation.)

Codicil of 31 July 2014

81. On 31 July 2014, the plaintiffs took the deceased to see Mr Grace. Mr Moore says that he made the appointment with Mr Grace and that he and Ms Andreasen had decided to make the appointment for the deceased to rewrite her Will. Mr Moore accepts that on that occasion he was asked by Mr Grace to step outside his office while the instructions were taken in relation to the Will (consistent, I would interpose to note, with Mr Grace’s stated “standard and invariable” practice – see at [249] of his affidavit sworn 21 March 2016). Mr Grace prepared a codicil to the deceased’s Will (which Mr Moore says was not shown to him) in which the deceased left a pecuniary legacy of $25,000 to Mr Moore “in consideration of the assistance he has given me”. The Codicil was witnessed by Mr Creech and another assistant in Mr Grace’s office. The deceased was not given a copy of the Codicil to take with her. Mr Moore deposes that Mr Grace told him that he did not think that would be wise as it could later be claimed that there was undue influence (Mr Grace gives a different account of this).

82. Mr Moore’s evidence is that he did not know the contents of the July 2014 Codicil until after the deceased’s death (and the defendant does not dispute this). Mr Moore’s evidence, of course, is that he did know the contents of the Will executed on 16 January 2014, or at least the summary of its contents, because he says he was present at the time. Again, the defendant denies that Mr Moore was present when instructions for the Will were given and says that the evidence does not make clear how Mr Moore came to learn about the contents of the Will – although it seems to be accepted that he did so at least by July 2014 when the appointment was made for what was ultimately drafted as a codicil to the Will (see Mr Grace’s affidavit sworn 27 March 2017 at [29]).

83. Mr Moore accepts that at no time (then or later) did he say to Mr Grace that there was a binding agreement under which the deceased was obliged to leave her estate to him and Ms Andreasen (T 86.15ff).

84. Mr Grace’s evidence in his affidavit sworn 27 March 2017 as to the 31 July 2014 meeting was as follows (at [28]-[29], [31]):

1. On or very shortly before 31 July 2014, I received a telephone call from a male person who identified himself as Mr Moore. Mr Moore spoke words to the following effect:

   Mr Moore:    Barbara wants to change her will. Can we see you?

   A time for an appointment for me to see Barbara was agreed. At the time of this phone call, I was aware that Barbara was suffering from cancer.

2. On 31 July 2014, Barbara and Mr Moore arrived at Church & Grace’s waiting room at the appointed time. The following then occurred:

   (a)    Mr Moore remained in the waiting room whilst I showed Barbara into my office, where she sat opposite me at my desk. I saw Barbara in my office as I wanted to talk to her to satisfy myself, which I did, that she was not under any influence from anybody else when she instructed me and that she understood what she was wishing to do.

   (b)    Words to the following effect were spoken:

   Me:   Barbara, I understand that you want to make some changes to your will.

   Barbara:    Yes. David has been good to me. I want to give him something.

   Me:    There are two ways that can be done. You can give him a share of your estate, or you can give him what is called a legacy, which is a sum of money.

   Barbara:    Give him money.

   Me:   How much would you like to give him? Your estate is substantial.

   Barbara:   Give him $25,000.00.

   (c)    Barbara remained sitting in my office while I dictated the Codicil which she subsequently signed.

   (d)    When the document was typed, I organised for James Creech and a Church & Grace staff member to come into my office. In their presence, I read the Codicil to Barbara and words to the following effect were spoken:

   Me:    Barbara, I understand that you want to leave Mr Moore $25,000.00. Is that correct?

   Barbara:   Yes.

   (e)    I do not presently recall, whether on this occasion, I asked Barbara whether she wanted to practice her signature.

   (f)    Barbara then signed the Codicil in the presence of two witnesses and myself.

   (g)    Words to the following effect were then spoken:

   Me:    Would you like us to keep the codicil in our strong room?

   Barbara:   Yes.

   Me:   Would you like a copy of the codicil?

   Barbara:   No.

   (h)    I then accompanied her to the waiting room, where Mr Moore had been waiting, and I ushered them out of the office.

   …

3. On a date which I am not presently able to recall but which was after Barbara had signed the Codicil, I received a telephone call from a person who identified himself as Mr Moore. Words to the following effect were spoken:

   Mr Moore:   I would like a copy of Barbara’s will.

   Me:   I cannot give you that as it is confidential.

   85. As to the Codicil, Mr Creech said he attended only as a witness. Mr Creech said that he was not aware of the terms of it all or why it was required. He did not recall any words being said by the deceased; and he could not remember anything being said about Mr Moore (see his affidavit sworn 24 March 2017 at [21]). In cross-examination, there was the following exchange (at T 413.16ff):

Q.   Is it your recollection that she was silent when she executed the document?

A.    I, I think the normal practice of Mr Grace would be saying - he would have introduced us, we would have spoken to or acknowledged Mrs Murphy, said hello. He would have then explained that Mrs Murphy was now going to sign her codicil and we would, you know, he would have provided that to her with an explanation of what was in it. I can’t recall any words that were said. She would have signed it and we would have witnessed it and that would have been it.

Q.    You keep saying he would have done this and you would have done that. Is that because you are relying upon your recollection of his practice as opposed to your own independent recollection of that meeting?

A.    Yes. I don’t, I don’t remember the exact words and I’m - again the usual practice of Mr Grace over the many, many, many years that I knew him and witnessed wills for him, powers of attorneys and documents, that was his invariable practice and it never varied.

Q.    I’m not being critical but when you turn your mind to this meeting in July 2014, you are simply falling back upon your recollection of his practice and you in fact have no independent recollection of the events that occurred, is that right?

A.    No, no, no, I do recall going - being called into his office to sign the will and to get another witness, when I ran and got Nikki to witness it, we both went into his office. I remember clearly Mrs Murphy sitting in his client chair directly opposite him. I, you know, remember her from the past meetings and I do remember her signing the will, and there was no great conversation that I can recall at all

86. Mr Creech described the deceased as elderly and frail (“she was frail at all our meetings if I recall. She was not a robust person, very small and thin” – T 414.48).

87. Ms Hatzimeletiou, who also witnessed the Codicil, gave evidence that she had been at Church & Grace since 2006 and worked predominantly for another solicitor (who was not involved in any of the relevant events). Her evidence was that she had a clear memory of the circumstances of execution of the Codicil at the time that she was collating some documents for the purposes of a probate application (T 386).

88. Ms Hatzimeletiou’s evidence was that it was quite common for Mr Grace to confer with clients of the firm in his office (T 387.14); that she would witness wills or codicils whenever it was required, and could not really put a number on this but said it was at least maybe three times a year she was called on to do so (T 387.41); she said that this would be sometimes in his office, but at other times in the boardroom or one of the meeting rooms (T 387.46).

89. Ms Hatzimeletiou recalled witnessing wills in Mr Grace’s office for many years before July 2014 (T 388.8); she said that when she attended to witness a Will being signed it would be usually just the solicitor who drew up the Will and who was acting as the executor or witnessing the Will (T 388.12); that it varied as to who was present, but usually it was the testator or testatrix and one other witness and no other family members present (T 388.14). As to who witnessed the Will, she recalled that it was “whoever was available basically” (T 388.41).

90. Her recollection is that when she witnessed the execution of a Will in Mr Grace’s office, the client would be sitting in the visitor’s chair directly opposite him over his desk (T 388.45). She said that Mr Grace always explained the Will or the codicil in her presence (T 389.12).

375. It is said that unless the defendant is actually aware of the occurrence of the detriment later claimed to have been suffered by the plaintiffs, the defendant’s conscience cannot be bound in a way requiring her to make good the promise or representation for the purpose of avoiding that detriment (which is the ultimate object of the remedy, as opposed to simply making good promises and the like for their own sake).

376. It is noted that an essential requirement for the plaintiffs to prove is that the plaintiffs have acted or abstained from acting in reliance on an assumption or expectation, and also that “the defendant knew or intended him to do so”. (referring by way of example to Waltons Stores at 428-429, per Brennan J, as his Honour then was; and to Delaforce at [72], per Handley AJA.)

377. The defendant says that the plaintiffs have failed to prove the kind of detrimental reliance that was referred to in Sidhu v Van Dyke at 530, per French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ).

378. Reference is made to Ashton v Pratt, where Bathurst CJ considered the authorities on promissory and proprietary estoppel and expressed doubt that as to “whether a party could be estopped from denying a contract came into existence in circumstances where, not only was the contract void for uncertainty, but objectively speaking there was no intention to create legal relations” (at [122]), and said that “where the estoppel said to arise is not a proprietary estoppel, but one which precludes a person from denying a contract come into existence, the certainty of the mutual promises said to constitute the contract seems to assume particular importance” (at [123]). His Honour there noted that there is a significant body of authority that promissory estoppel “only acts as a restraint on the enforcement of legal rights” and cannot be a source of obligation (at [138]); and, while acknowledging that there was uncertainty as to this limitation on promissory estoppel, expressed (in obiter) doubt that it was likely that the doctrine extended to impose an obligation on the promissor to adhere to the representation where the same obligation is said to arise under an assumed contract, which itself was void for uncertainty or incompleteness (at [139]). There it was found that Ms Ashton had suffered no detriment, it being noted that the object of promissory estoppel is to “avoid the detriment which would be suffered by the party who has been induced to act or to abstain from acting thereon” (at [110]).

379. Further, it is noted that, in Ashton v Pratt, Meagher JA said that (at [237]):

1. Where nothing express was said by the parties to suggest the parties intended by their conversation to create a contractual relationship and the conversation and circumstances would not have conveyed as such to reasonable persons in their position, the basis upon which it could be found that Mr Pratt made a promise which was intended by him and understood by Ms Ashton to affect their legal relations is not immediately apparent.

   392. The defendant says that, by analogous reasoning and for the reasons advanced in relation to the plaintiffs’ claim in contract, the plaintiffs fail to make good their pleaded claim of estoppel. The defendant says that this is because the plaintiffs must prove that the deceased induced the plaintiffs to assume or expect that there was a contract between them under which the deceased made binding promises (and the plaintiffs have failed to do so).

   393. It is said that it is significant that anything that Mr Moore did for the deceased after January 2014 cannot have been in reliance on the deceased’s promise to make a Will leaving her estate to the plaintiffs because, from that date, he knew that she had not done so.

Reply submissions

394. As to the principles referring to testamentary promises, the plaintiffs also refer to what was said by Brooking JA in Flinn v Flinn (at [75]-[76]):

1. Most people, I suppose, know that the maker of a will can revoke it at any time before death. How is a promise to leave property by will to be understood? Surely it will ordinarily be regarded by the promisee as a promise, not merely to make a will which can be revoked at any time before death, but to make a gift by means of an instrument which will take effect upon the donor’s death. In other words, the promise of a gift by will is ordinarily to be understood as meaning just that— an effective gift by will, taking effect on death, not an ineffective, because revoked, disposition. Of course it all depends on the circumstances. If a woman says to her niece, “It’s time I made a new will. I’ll see the solicitor soon. I’m going to leave you my house. But don’t forget that I might change my mind again and leave it to your brother next year”, any claim to an equity by proprietary estoppel would very likely break down at the start. This would be on the basis there had never been a promise to leave property by will, only an intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it.

2. In the present case, on the evidence which the judge accepted, and on his findings, the promises made were, and were intended to be, and were reasonably understood and acted upon by the promisees as, promises of the making, not of a revocable testamentary instrument, but of a gift by will taking effect on death.

[Emphasis in the original]

395. The plaintiffs’ submission is that the deceased’s conscience was bound upon the promise being made; alternatively, when Mr Moore showed her his amended plans in December 2004; or a reasonable time after the representations were made, when it must have been apparent to the deceased that the plaintiffs would not sell No 70; or after the plaintiffs had undertaken not insubstantial work on No 70 and (to the same measure) assisted her.

396. The plaintiffs also say that the defendant has not in substance rejected the proposition that the plaintiffs could succeed if they merely established detrimental reliance on a promise that they look after the deceased, and that this represents their “fall-back position” (consistent with authority, referring to Hutley JA’s reasoning in Palmer v Bank of New South Wales [1973]).

Determination as to estoppel claim

397. At the outset, I note that there is a distinction between a testamentary contract and a proprietary estoppel; and that it is not uncommon for a claim in proprietary estoppel to succeed in circumstances where a claim based in contract has not been established. So, for example, in Gillett v Holt the contract claim was abandoned at trial (see at 224, 231, per Walker LJ); in Flinn v Flinn the promises were too uncertain to establish a binding agreement at law (see at [65]-[66], per Brooking JA); in Walton v Walton (unreported, 14 April 1994, EWCA Civ) (Walton v Walton) at [20]-[21] it was accepted for the plaintiff had always accepted that the promises could not in law amount to a contract; and in Priestley v Priestley the claim in contract failed at first instance and on appeal (Priestley v Priestley [2017] at [114]-[122], per Emmett AJA).

398. In a case where the relevant assurance is as to the deceased’s testamentary intentions, there is inevitably a question as to whether the plaintiffs’ reliance on that assurance is reasonable given the inherent revocability of Wills. It was accepted by Mr Moore in cross-examination that in principle a Will is ordinarily revocable at any time before death but his position (which I consider to be not unreasonable in the circumstances) was that it would not have been open to the deceased, had she made a Will in the plaintiffs favour, to do so in light of the arrangement that had been entered into between them (T 34.9ff).

399. As to the requisite certainty for a representation or promise in proprietary estoppel (as distinct from the certainty requirements for estoppel by representation or promissory estoppel), I have noted above (and elsewhere) my view that the weight of appellate opinion is that there are less stringent certainty requirements for proprietary estoppel. In particular, it may be noted that representations or promises of the following kinds have, in other cases, been considered to be sufficiently clear to give rise to an estoppel (the statement in In re Basham, decd [1986] 1 WLR 1498 at 1503, per Nugee QC sitting as a High Court judge, that “[y]ou’ll lose nothing for this, doing all these jobs”; the statement in Gillett v Holt at 227, per Walker LJ, that “all this will be yours”; the oral promises in Giumelli v Giumelli at 116, per Gleeson CJ, McHugh, Gummow and Callinan JJ, by parents to their son that they would subdivide their property and transfer a parcel to him; the statement in Sullivan v Sullivan at [58], per Hodgson JA, that “[t]his is your Christmas present. [We] will look for a home of your/our choice for you to live in as long as you like”; the notation made in the consent orders in the Family Court that were considered in Delaforce at [18], per Handley AJA, that the husband “will retain the wife as a beneficiary in his will”; and the remarks referred to in Thorner v Major at [26], per Rodger LJ, being described as oblique remarks between men between whom “clear and unequivocal statements played little or no part”.

400. I am satisfied in the present case that there was a sufficiently clear representation by the deceased to the effect that, if the plaintiffs looked after her (in the way in which Ms Andreasen had been looking after her own mother), so that the deceased could stay in her own home for as long as possible, then the deceased would leave the Louisa Road properties to them.

401. However, as noted earlier, I am not persuaded to the requisite degree of satisfaction that the promise comprised the entirety of the deceased’s estate. I accept that there are statements made by Marion to that effect but there are also statements by Marion that refer to the house or the money from the house (see [176] above). I am doubtful whether Marion clearly distinguished between the deceased’s entire estate and the house (strictly speaking, the houses) or the money from the sale of the house(s) if there be a sale. Furthermore, Mr Renshaw’s evidence (on which I place the most weight) clearly ties the representation or promise to the properties in question. I did have some hesitation as to whether the representation might in fact have been limited to the particular property in which the deceased resided (i.e. No 68), having regard to where that particular conversation took place (i.e., on which property by Mr Moore’s boatshed it took place). However, it does not appear that the boundaries of the properties at the water’s edge were clearly delineated nor that there was a clear differentiation by the deceased in relation to the properties; and, on balance, I have concluded that it is more likely that the deceased’s representations would have been made by her and understood to relate to the two properties – i.e., both No 66 and No 68. Similarly, I have come to the view that, in all the circumstances, it was reasonable for the plaintiffs to understand the promise(s) as meaning both houses.

402. As to reliance upon the relevant representation or assumption, it is well established that here is no presumption of reliance – reliance is a fact to be found (Sidhu v Van Dyke at [58]). In terms of proof, what is required is satisfaction from the whole of the evidence of the fact of reliance by the plaintiffs on the balance of probabilities (see Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55], per McDougall J, McColl JA and Bell JA, as her Honour then was, agreeing).

403. Questions of reliance and detriment are distinct but interwoven, in the sense that “[t]here can be no real detriment if the party asserting the estoppel would have been in the same position in any event” (Sidhu v Van Dyke at [92], per Gageler J; see also Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 at 674, per Dixon J, McTiernan J agreeing; [1937] HCA 58); but nevertheless detriment is a necessary element of a proprietary estoppel since it is one’s detrimental reliance which makes an estoppel enforceable (Sullivan v Sullivan at [18], per Handley JA).

404. In a case of estoppel by encouragement, the relevant detriment is not the loss flowing from mere non-fulfilment of a representation or promise (Verwayen at 429, per Brennan J; see also Steria Limited v Hutchison [2006] EWCA Civ 1551 at [125], per Neuberger LJ, as his Lordship then was), what must be established is relevant detriment. That said, equity will have regard to the actual detriment that has been suffered, as well as to that which it is anticipated will be suffered if equity were to permit a defendant to act inconsistently with a plaintiff’s assumption (see Verwayen at 415, per Mason CJ).

405. The test for reliance this has been variously described in the authorities: as being that a plaintiff must show that he or she “would have acted differently” but for the assumption (explicitly supported by Gageler J in Sidhu v Van Dyke at [91]-[93]; see also Stone v Stone [2014] NSWSC 1655 at [45]-[46], per Darke J; Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 (Miller Heiman) at [49], [62], per Macfarlan JA, McColl JA and Sackville AJA agreeing; Priestley v Priestley [2016] at [119]-[136], per White J; and Priestley v Priestley [2017] at [16], per Macfarlan JA); and as being whether the promise or representation was “a contributing cause” or “influenced” the plaintiff’s action (Edelman J’s (as his Honour then was) reading of Sidhuv Van Dyke in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 at [770]-[779]; Emmett AJA in Priestley v Priestley [2017] at [136]-[137], per Emmett AJA, McColl JA agreeing; K Handley, “Recent Cases: Estoppel” (2017) 91 Australian Law Journal 812). I have concluded elsewhere (E Co v Q at [901]) that, as a matter of authority, the Sidhu v Van Dyke “contributing cause” is the correct test but that the better reading of that test is as propounded by Gageler J (in Sidhu v Van Dyke), White J (in Priestley v Priestley [2016]), and Macfarlan JA (Miller Heiman; Priestley v Priestley [2017]). Nothing, however, turns on the difference in the present case.

406. The counterfactual mode of reasoning, echoing the approach taken by Hoffmann LJ, as his Lordship then was, in Walton v Walton (see at 12), is that one “does not test reliance by asking what B would have done if [the promise] had never been made. One asks what B would have done, if the promise having been made, he had been told that it would not be kept”.

407. As to reliance in the present case, I find that the evidence establishes that the plaintiffs over the period from at least 2006 or 2007 performed a number of services and provided assistance for the deceased in reliance on the deceased’s promise. I think it can readily be found that, with the prospect of such valuable property being left to them by the deceased, the plaintiffs would have had an incentive to be assiduous in their attentions to the deceased. It has certainly been established that Mr Moore was the person who primarily accompanied the deceased to medical appointments and the like, and he and Ms Andreasen had an ongoing involvement in the arrangements in relation to the carers. Moreover, I consider it significant that the deceased appointed Mr Moore to act as her attorney, and obviously considered it important that she introduce Mr Moore in 2012 to her solicitor. Not only does that show trust in Mr Moore, but it shows that he was prepared to accept that position of trust. The fact that the plaintiffs may have exaggerated (as they may well have done) the level of services provided is not to the point. I accept that they did provide services to the deceased in reliance on the testamentary promises.

408. As to the plaintiffs’ claim that they chose not to renovate No 70 (or decided to put their plans “on hold”) in reliance on the promises made to them, this is more problematic. There seems to me little doubt that the rejection of the revised building plans was for a variety of reasons, and not simply because of the altered roofline which Mr Moore attributed to the need to preserve the deceased’s water view. But in any event, even if one accepts that the plaintiffs put their plans for renovation and sale of the property on hold, I have some difficulty in accepting their calculations of the financial detriment they say they have suffered (particularly given that they have retained the property and would be in a position to realise what one would assume would be a capital gain if they were now to sell, having regard to the fact that it was acquired quite some time ago).

409. More relevantly, I have difficulty in accepting that any reliance by the plaintiffs on the testamentary promises when making the decisions they did in relation to the renovation of No 70 could be said to be detrimental in a way that would make it unconscionable for the deceased to resile from her testamentary promise in circumstances where Mr Moore accepted (see at T 118) that the deceased was never told that there had been a decision by the plaintiffs not to proceed with their renovation plans (so it cannot be said that the deceased understood that the plaintiffs were relying on her promises in making the decision not to pursue their renovation plans).

410. That brings me to the question of detriment. Again, there is no presumption of detriment; that detriment has been suffered (or will be suffered) must be established on the balance of probabilities. However, the concept of detriment in the context of proprietary estoppel is neither narrow nor technical (Donis v Donis at [20], per Nettle JA, as his Honour then was). The question of detriment is assessed as at the time a party seeks to depart from the assumption or expectation (DHJPM at [72], per Meagher JA, Macfarlan JA agreeing). Relevant detriment can consist of the making of “life-changing decisions with irreversible consequences of a profoundly personal nature” (Donis v Donis at [34], per Nettle JA, as his Honour then was; cited approvingly in Sidhu v Van Dyke at [84], per French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ).

411. Where I do accept that detrimental reliance was established – addressing the question whether the plaintiffs have has suffered or will suffer detriment if there is departure from the induced assumption upon which they acted (i.e., if the deceased’s estate is permitted to act inconsistently with any expectation encouraged by the deceased in relation to her testamentary intentions) – is in the provision of an increasing level of assistance and care over the years (at the expense, at least in some instances, of their own family commitments or wishes – such as the foregoing of visits to family overseas), and what I accept was the care provided by Mr Moore at a time when Ms Andreasen was herself ill (see the evidence of Ms Andreasen in her affidavit sworn 21 March 2016 at [101] to which I have referred above) as well as the time spent looking into treatments for the deceased’s health conditions beyond what was being provided to her as a matter of course (see the evidence of Dr Suda in her affidavit sworn 21 March 2016 at [12]-[15]; and her affidavit sworn 3 April 2018). That seems to me to be evidence of life-changing decisions in their personal lives that have had irreversible consequences (in the sense that one cannot now “turn the clock back” after the personal sacrifices that will inevitably have been made over the years in order to provide the assistance that was given), sufficient to meet the test for detrimental reliance approved in Sidhu v Van Dyke.

412. While I accept that at least some of that assistance (and certainly a much increased level of assistance) occurred after the plaintiffs (on their case, although I do not accept Mr Moore’s version of the 16 January 2014 meeting with Mr Grace) became aware that the deceased had not made a Will in their favour, that does not alter the fact that there had been a considerable level of assistance before that time (and, in any event, not long thereafter there was the making of the Codicil, which no doubt the plaintiffs considered had rectified the problem in relation to the deceased’s Will).

397. Further, in the English case of Jennings v Rice [2002] EWCA Civ 159, the Court of Appeal noted the following about the nature of detriment that may be occasioned to a plaintiff in a case where the care of the promisor was part of the subject-matter of the promise or representation.

1. … Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant’s expectations. Detriment can be quantified with reasonable precision if it consists solely of expenditure on improvements to another person's house, and in some cases of that sort an equitable charge for the expenditure may be sufficient to satisfy the equity (see Snell's Equity 30th ed para 39-21 and the authorities mentioned in that paragraph). But the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms. Moreover the claimant may not be motivated solely by reliance on the benefactor’s assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the court has to exercise a wide judgmental discretion.

[Emphasis added]

414. I accept that, in the present case, the “burden of care” described above is a description of a part of the relevant detriment claimed. While the plaintiffs did not live in the same house as the deceased (and so could be said to be under a lesser burden of care, especially given the presence of professional carers), they nonetheless did alter their life-style to accommodate the deceased’s needs, and to provide companionship and support as the deceased aged over a number of years.

415. There were submissions made to the effect that the conduct said to amount to reliance had benefited the deceased but, as the defendant pointed out in oral submissions, the relevant question is not whether the conduct was to the benefit of the deceased but whether reliance on the representation or promise was detrimental such that it would now be unconscionable for the deceased, through her executor, to resile therefrom. Moreover, as I understood them, those submissions as to benefit went more to the proposition that, first, the deceased had intended the plaintiffs to rely on the promise, well understanding what would be involved in its performance; or, second, that on the contractual claim there had been no complaint as to the manner of performance of the obligations asserted to have been agreed on the part of the plaintiffs.)

416. Thus, I find that detrimental reliance sufficient to render it unconscionable for the deceased to resile from the testamentary promises has been established; and the elements of proprietary estoppel made out (and it is unnecessary to consider the alternative claim in promissory estoppel).

417. Turning then to the question of the relief to be granted, the appropriate starting point, as is now well known, is the plaintiffs’ “prima facie entitlement” to relief framed on the basis of the assumed (or expected) state of affairs (see Verwayen at 442, per Deane J; Giumelli v Giumelli at [42]; [50], per Gleeson CJ, McHugh, Gummow and Callinan JJ; Donis v Donis at [19], per Nettle JA, as his Honour then was; Delaforce at [63]-[65], per Handley AJA; and Sidhuv Van Dyke at [82]-[86]).

418. That prima facie entitlement (on establishing a claim of proprietary estoppel) is the making good of the relevant expectation. However, this will give way where particular relief would be wholly disproportionate, or out of all proportion, to the detriment. The emphasis is upon that which is required by way of “conscientious conduct” (Sidhuv Van Dyke at [83], per French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ).

419. In “Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion” (2020) 43 University of New South Wales Law Journal 281, Associate Processer Ying Khai Liew identifies the approach in Giumelli v Giumelli as involving two distinct sets of discretions both to be exercised positively: first, to determine whether “expectation relief” is appropriate, or is a disproportionate remedy in view of the detriment suffered; and then, if expectation relief is held to be justified, to consider the appropriate measure of relief, having regard to all the circumstances of the case (see at 282-283).

420. There may also be issues as to how the relief should be crafted in the circumstances of the particular case (as I have noted in E Co [a pseudonym] v Q [a pseudonym] (No 4) [2019] NSWSC 429 at [626]). In the present case, the real issue, as I see it, is as to whether expectation relief should here be granted (i.e., the imposition of a constructive trust in respect of the properties), or whether some other (lesser) relief should be ordered on the basis that the relief sought is disproportionate.

421. What is made clear by cases such as Giumelli v Giumelli and Sidhuv Van Dyke is that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration (and, as Allsop P, as his Honour then was, said in Delaforce at [4]), and that this consideration is sometimes of considerable importance. However, his Honour observed that it should not be transformed into a “necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief”; his Honour considered that the role of proportionality was better understood as assisting in an assessment of whether what is claimed, or contemplated to be granted, is disproportionate or unjust in all the circumstances (see also Rodda v Ian Rodda Pty Ltd [2015] SASC 95 at [305] where Nicholson J referred to the need for there to be “a sufficient proportionality of any interest or remedy ultimately granted when compared with the prejudice or detriment suffered by the plaintiffs and the overall justice of the case”).

422. When considering the proportionality of the relief sought, the authorities have referred to whether it would be “wholly disproportionate” to the detriment suffered (see Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59 at [591]-[594], per Vickery J; Verwayen at 413, per Mason CJ) or “out of all proportion” to the detriment (see Priestley v Priestley [2017] at [164] per Emmett AJA, McColl and Macfarlan (on that point) JJA agreeing).

423. In Priestley v Priestley [2017], Emmett AJA (with whom McColl and Macfarlan (on this point) JJA relevantly agreed) said that(at [164]):

1. The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation.

[Emphasis added]

424. Had I been persuaded that the relevant testamentary promise extended to the whole of the deceased’s estate, then I would have been inclined to the view that an order for the entirety of the estate would have been out of all proportion to the detriment that would be suffered if the deceased were permitted in effect to resile from her testamentary promise. That is because this is a substantial estate and the services provided (albeit over many years) are of a kind of which the cost to the plaintiffs is difficult to quantify and would not, I think, be likely to have amounted to anywhere near the value of the estate. There is much force, in that regard, to the complaint by the defendant as to the generality of the description of the services rendered and the self-serving nature of the evidence in that regard. I would have sought, in those circumstances, to craft some lesser form of relief consistent with the authorities that indicate that this is permissible, and to which I have referred above.

425. However, if (as I have concluded) the testamentary promises are understood as relating only to the two Louisa Road properties, then I have concluded that the appropriate relief (particularly given the significance of the real estate to the plaintiffs and the context in which the testamentary promises were made and understood) is to grant the expectation relief sought in relation to those two properties. I consider that, apart from those properties, the deceased had the freedom of testation to dispose of her estate as she wished (and that, even though the plaintiffs appear to have understood the testamentary promises to relate to the whole of the deceased’s estate, it was not unconscionable for the deceased to resile from any such intimation).

Costs

426. The plaintiffs indicated that, if successful, they wished to be heard on two issues: first, on the question of costs and, second, as to the extent to which the defendant should be indemnified from the deceased’s estate. It may well be that one or both of those issues falls away in light of the extent of the relief that has been granted. I will make directions for submissions to be made in that regard and, if possible, I will deal with those on the papers. If either party submits that an oral hearing on the remaining issue of costs is required then the reason for that should be identified in the written submissions.

Conclusion

427. For the reasons set out above, I make the following orders:

1. Declare that the defendant holds the properties known as No 66 and No 68 Louisa Road, Birchgrove (the properties) on trust for the plaintiffs in equal shares as tenants in common.

2. Order that within 28 days the defendant transfer the properties to the plaintiffs in equal shares as tenants in common.

3. Direct that the parties file brief written submissions as to costs (and any issue as to the extent to which the defendant should be indemnified out of the estate of the deceased) within 7 days, with a view to dealing with the issue of costs on the papers.

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SCHEDULE 1

(a)   Mowing her lawns.

(b)   Extensive maintenance and repairs to Barbara’s properties over more than a decade.

(c)   Undertaking structural improvements or repairs to Barbara’s properties over more than a decade.

(d)   Supporting Barbara in dealing with her properties and her tenancies, including managing her tenants’ rental payments and being the first point of contact for the tenants.

(e)   Providing companionship, social interaction and taking Barbara out for meals (at the plaintiffs’ expense).

(f)   Providing mental stimulation by discussing current affairs and general events.

(g)   Bringing Barbara home cooked meals from time to time and feeding Barbara at the plaintiffs’ house on occasion. Alternatively, arranging home delivered meals to be delivered to Barbara.

(h)   Taking Barbara shopping.

1. Buying Barbara nutritious food and quality groceries from time to time (at the plaintiffs’ expense of the plaintiffs).

(j)   Initially, helping Barbara pay bills; later, paying her bills on her behalf and later managing her financial affairs including funds investment and assisting and advising on her taxation obligations.

(k)   Advising and helping Barbara sell her car.

(l)   Researching specialists who could provide necessary medical treatment for Barbara, initially with her deteriorating eye sight and later for treatment and care of her cancer; and locating and enrolling Barbara in clinical trials, pathology and other testing and radiotherapy.

(m)   Taking Barbara to her medical and non-medical appointments and later assisting Barbara with complex medical advice and counsel on alternate medical treatments to treat her illnesses and reverse her deteriorating eye sight.

(n)   Making medical appointments for Barbara.

(o)   Obtaining Barbara’s prescription medications.

(p)   Supervising and managing the administration of Barbara’s medications.

(q)   Accompanying Barbara to her Funds Manager.

(r)   Liaising with the specialists, doctors and other medical staff when Barbara was admitted to Balmain and Royal Prince Alfred Hospital, as well as visiting her in hospital and taking her home made food in hospital regularly.

(s)   Making and attending appointments with the Social Worker, Occupational Therapist and other auxiliary staff in relation to Barbara’s care in hospital and after her discharge from hospital.

(t)   Making decisions, organising and supervising cleaning, re-organising and arranging of Barbara’s unit (including packing and moving her belongings to a storage facility) to enable her to return home after she was discharged from hospital. This took a week.

(u)   Engaging tradespeople to undertake repairs and maintenance on Barbara’s properties when the plaintiffs were unable to complete the work including installing modifications in Barbara’s bathroom, so that Barbara could be safely cared for at home.

1. Carrying out extensive research, then advertising, interviewing, shortlisting and engaging suitable carers to provide full time private in-home care for Barbara.

(w)   Coordinating, supporting, supervising and monitoring private 24 hour, 7 day a week carers to ensure Barbara was receiving high standard, in-home and professional care.

1. Researching and ordering all necessary equipment as required to meet Barbara’s progressively increasing needs, such as bath aids, commode, hospital bed, walking frame and wheelchair;

(y)   Obtaining care supplies, such as dressings, protective sheeting and incontinence pads, monitoring and purchasing additional care aids for Barbara as needed.

(z)   Undertaking grocery, food and general shopping for Barbara and her in home carers.

(aa)   Providing, and where required, purchasing home appliances as needed such as a digital television, vacuum cleaner, heaters, fans and kitchen appliances for Barbara and her carers.

(bb)   Engaging and supervising a painter to paint and repair the external walls on her houses and boatsheds in order to seal in the asbestos fibro surfaces which had become exposed and to stop their deterioration.

(cc)   Obtaining quotes, discussing and selecting builders and materials for the rebuilding of the deck, balconies and stairs between 66 and 68 Louisa Road.

(dd)   Providing relief and care when the in-home carers were unavailable.

(ee)   Attending to employment requirements including calculating and paying wages to the in-home carers for Barbara; which in turn entailed establishing, negotiating and adjusting the wages.

(ff)   Arranging the general practitioner for home visits when required and attendance with Barbara during GP consultations;

(gg)   Providing loving and supportive end of life care for Barbara; [sic]