Notaras v Notaras
[2011] NSWSC 546
•27 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: Notaras v Notaras [2011] NSWSC 546 Hearing dates: 21, 22 and 23 February 2011; 27 May 2011 Decision date: 27 May 2011 Before: White J Decision: Refer to paras [55], [61] and [62]
Catchwords: REAL PROPERTY - transfer of interest in property between family members - whether evidence established creation of a trust - transfer expressed to be for nominal consideration - held that transfer of interest in property was in exchange for relinquishing interest in another property - no question of principle Legislation Cited: Contracts Review Act 1980 Cases Cited: Calderbank v Calderbank [1976] Fam 93 Category: Principal judgment Parties: Brinos Theo Notaras (Plaintiff)
Basil Theo Notaras (Defendant)Representation: A Rogers (Plaintiff)
D B Studdy SC (Defendant)
Mitry Lawyers (Plaintiff)
Horowitz & Bilinsky (Defendant)
File Number(s): 2009/290827
Judgment
HIS HONOUR: The plaintiff, Brinos Notaras, and the defendant, Basil Notaras, are brothers. In August 2008 they owned a property in St. Luke Street, Randwick as tenants-in-common in equal shares. For clarity, and without intending any disrespect, I will call the parties by their first names.
Brinos was also the registered proprietor of a property in Cantrill Avenue, Maroubra. Although Brinos was the sole registered proprietor of the Maroubra property, Basil claimed a beneficial interest in it.
On 22 August 2008 Brinos signed a memorandum of transfer in registrable form of his interest in the Randwick property. The transfer was in favour of Basil. The consideration expressed in the transfer was $1. Brinos claims that he and his brother did not intend that transfer to be a gift. He contends that Basil holds a 50 per cent interest in the Randwick property on trust for him.
In his affidavit, Brinos swore he was induced by Basil to execute the transfer for the purpose of protecting his assets against any claim that his then de facto partner, a Ms Robin Gunther, might have against him. Brinos claimed he and Basil both intended that Basil would transfer back to him a 50 per cent interest in the Randwick property for nominal consideration if he asked Basil to do so.
Brinos pleads that the transfer was procured by the exercise of undue influence and unconscionable conduct by Basil. He pleads that the agreement for the transfer of his half interest in the Randwick property to Basil for nominal consideration was an unjust contract which should be declared void under the Contracts Review Act 1980.
Basil admits that the transfer of Brinos' half interest in the Randwick property was not by way of gift. Basil says that although the Maroubra property was registered in Brinos' name, he, Basil, was entitled to a beneficial interest in that property.
On 15 August 2008 Basil learned that Brinos had mortgaged the Maroubra property without his consent. The mortgage was said to secure borrowings by Brinos and Robin Gunther. Basil was upset by the mortgage over the Maroubra property. He contends that he proposed, and that Brinos agreed, that Brinos should transfer his half interest in the Randwick property in exchange for Basil's relinquishing his interest in the Maroubra property. Basil says that at the same time Brinos signed the transfer of his half interest in the Randwick property, he, Basil, signed an acknowledgment that he had no interest in the Maroubra property. Brinos disputes this.
Brinos denies there was such an agreement for the exchange of his interest in the Randwick property for Basil's relinquishing a claim to the Maroubra property. He denies that Basil had a beneficial interest in the Maroubra property to relinquish.
If it is found an agreement was made as Basil contends, then Brinos does not say that that agreement would be vitiated for undue influence or unconscionable conduct, or would be liable to be declared void under the Contracts Review Act . He invokes those principles only in respect of a transaction for the transfer of his half interest in the Randwick property for nominal consideration. By the same token, as Basil does not contend that that transfer was by way of gift, it follows that if there were no valuable consideration for the transfer by way of Basil's relinquishing his claim to an interest in the Maroubra property, then he would hold the Randwick property on a resulting trust for Brinos as to a half interest.
Accordingly, the issue in this case comes down to one of fact. The question is why did Brinos sign the transfer of his half interest in the Randwick property in favour of his brother? Was it or was it not in return for Basil's agreeing to relinquish his claim to a beneficial interest in the Maroubra property?
Brinos is 70; Basil is a year younger. They are both pharmacists. Between 1976 and 2001 they carried on a pharmacy business in partnership at Maroubra Junction. In 1963 their parents purchased the property in St. Luke Street, Randwick. It is a block of six flats. At that time the two brothers lived in one of the flats and their parents lived in another. The remaining four flats were let.
Initially, Brinos and Basil each had a 25 per cent interest in the Randwick property, and their parents had a 50 per cent interest. Their father died in 1981 and their mother died in 1999. After her death each brother held a 50 per cent interest in that property.
Brinos purchased land, which was then vacant, in Cantrill Avenue, Maroubra by auction in 1973. It was purchased from the Department of Lands on terms that required Brinos to construct a house. The purchase price was $31,000 payable by four instalments; namely, $7,750 on exchange and by three subsequent equal annual instalments of $7,750, plus interest.
Brinos deposes he paid the deposit, that is, the initial instalment. There was no corroborative evidence of that. In cross-examination Brinos accepted he could not recall whether he or his parents paid the deposit. At that time he had only just qualified as a pharmacist and started work, and the objective circumstances suggest it is more probable his parents would have paid the deposit.
Prior to the purchase Mr Notaras Senior, that is, Brinos' and Basil's father, had mooted the possibility of their buying land that was to be released in Maroubra. Brinos admitted that his father had said that " We should buy some property. " It was Basil's evidence that Mr Notaras Senior contemplated that more than one property would be purchased over time, and that Mr Notaras Senior said that the first block to be bought should be bought in Brinos' name because he was the eldest son. I accept that evidence.
In his third affidavit, Brinos deposed that, as well as paying the deposit, he paid all of the instalments of the purchase price for the Maroubra property and he paid the council rates and other outgoings. I do not accept that he made all of those payments. He did pay two of the four instalments towards the purchase price of $7,750 and he contributed a further $3,300 to the purchase of the land. His parents contributed the balance.
According to Brinos, when the Maroubra land was purchased his father insisted that he should pay the rates and taxes. This, in fact, is consistent with at least Brinos and his father regarding the property as a family asset in respect of which his father could give directions. Brinos did pay some of the rates and taxes on the property, but from about 1977 payments for rates and taxes were made from profits or drawings taken from the partnership in relation to the pharmacy business.
Construction of a house on the land did not commence until 1980. It was submitted for Brinos that this was inconsistent with all parties treating the land as a family asset. This was because it was Basil's contention (that Brinos rejected) that their father had proposed that the property be bought as a place in which the family should live. However, in my view, the lapse of time before construction commenced is not evidence against its being the intention of all parties that the Maroubra property would be treated as a family asset. I accept Basil's evidence that the most important thing was to get the land first and to sort things out afterwards. I accept the submission of counsel for Basil that the delay in construction is explained by a poor economic climate in the mid 1970s, the aversion of the parties' parents to mortgaging other properties and paying interest, the ill health of Mr Notaras Senior, and the time that had to be devoted to the pharmacy business.
Basil contended that he contributed the majority of the costs of construction of the house that was built over a period of nine years between 1980 and 1989. He said the building costs were about $278,000, of which he contributed about $163,000. Brinos denied this. He could not say who contributed what amount to the costs of construction. He said Basil had earlier claimed to have spent only $50,000 on the property. I do not accept that Basil made such a statement.
Considerable time was spent at the hearing in attempts to establish the costs of construction and the extent to which each brother contributed to those costs. At the end of that evidence the position remained unclear. This is partly because there was no record of all of the costs incurred. Basil provided what was merely an estimate of some $94,000 towards building costs, which he said was a conservative estimate. But he was speaking of matters which took place decades before.
The building costs were paid from a variety of sources including funds from the pharmacy partnership. A separate building account was established, to which Basil contributed drawings from the partnership. Nonetheless, it was not at all clear to what extent funds sourced from the partnership should be attributed as partnership funds to which both parties were jointly entitled, or to what extent they represented their drawings to which they were individually entitled. Moreover, the picture was further confused by the fact that some of the payments Basil said were made towards building costs appeared to be unrelated to that project. It is unnecessary to come to any conclusion about the precise extent each contributed to the costs of building the house on the Maroubra property. Whatever his exact contribution, it is clear that the contribution Basil made to those costs was substantial.
Whilst the house at Cantrill Avenue, Maroubra was being built, Brinos, Basil and their mother lived in the St Luke Street property. Shortly before the house at Maroubra was finished, Basil moved on to the property to keep it secure. Approximately six months later he was joined by Brinos and their mother. Their mother lived there until her death in 1999. Brinos also lived at the property until about 2004. I accept Basil's evidence that from about the mid-1990s Brinos spent progressively less time there as he spent time living with Robin Gunther at her house. Basil continued to live in the Maroubra property until he moved out on 17 November 2008.
Brinos never charged rent. He said that Basil was his guest. However, Basil's and their mother's occupation of the Maroubra house without payment, and the contributions made by both Brinos and Basil and by their parents to the purchase of the property, the construction of the house on the property and to rates and taxes in respect of the property, are all facts corroborative of Basil's contention that it was the parties' common intention that he would have a beneficial interest in the property.
Basil deposed that after Brinos started spending more time with Robin Gunther, he asked Brinos when Brinos would transfer to him what he called " my half interest in Cantrill Avenue. " According to Basil, Brinos told him he would get round to doing it eventually and that he, Basil, should not worry because half of Cantrill Avenue was his. Brinos denied that a conversation to that effect took place. The present dispute does not depend upon whether I accept or reject that evidence. But for reasons to which I will later advert, where the evidence of Basil and Brinos conflicts, I prefer Basil's evidence. I accept that a conversation to that effect occurred.
In or about 2008 (and it is not clear exactly when) Brinos mortgaged the Cantrill Avenue property. He said the mortgage was to secure a bridging loan for a property he and Robin Gunther were buying. It is common ground that Basil found out about that mortgage in August 2008 and was upset or, as Brinos put it, agitated. That that was his reaction is corroborative of Basil's believing that he had a beneficial interest in the property. Basil says, and I accept this evidence, that Brinos told him that he had had to mortgage the Cantrill Avenue property as he and Robin needed the money.
According to Basil, it was his finding out that the Cantrill Avenue property had been mortgaged that led to the agreement he claims he made with Brinos. He deposed that he told Brinos that Brinos had no right to mortgage Cantrill Avenue and that Brinos acknowledged that but said he had no option. Basil then deposed that after considering the matter for a short time, there was a discussion between he and Brinos to the following effect:
"[Basil] : I just don't know how I'm going to secure my half in Cantrill Avenue now that you have mortgaged the property. The only thing that I can think of is for you to transfer your half in St Lukes Street to me in exchange for my interest in Cantrill Avenue. You can then own Cantrill Avenue outright and I will own St Lukes Street outright.
Brinos: I was thinking that that was the way out of it. I will do that. "
According to Basil, arrangements were then made for the preparation of the necessary documents to give effect to that agreement.
Brinos' version is quite different. He says that Basil proposed that Brinos transfer his half interest in the St. Luke Street property in order to make sure that Robin Gunther would get nothing if Brinos and Robin Gunther split up. Brinos says he went along with that proposal. Brinos deposed:
" 26. Basil had been saying for some time that I should be making sure that Robin can't get any of my assets and that as he's always helped out in the past he could help me out again by getting me some advice as to how to go about this ...
...
28. Basil said Ross [Turnbull] would be able to advise me if I split up from Robin and help me once I gave him the information requested [about his assets] . Basil said not to worry, he would help me fight Robin to make sure she got nothing. I did not want to fight Robin but I just went along with what Basil was saying. ...
29. On one of these occasions, at the offices of Claude Bilinsky, when I was with Ross Turnbull and Claude Bilinsky, Claude said in the presence of Basil:
'You can transfer properties backwards and forwards for a dollar. I didn't know what to do but I have asked somebody. I've got to go to Court now.'
He left me with Ross Turnbull and Basil in a conference room and Ross asked me about the properties I owned with Robin or that she owned and what contributions I had made.
30. After Claude Bilinsky's conversation, Basil said to me: 'I can help you out so that Robin can't get any of your property'.
31. About a week after the meeting in Claude Bilinsky's office I was at Cantrill Avenue, Maroubra and Basil came up to me on the stairs and said:
'I've got a transfer for you to sign for St Luke Street. I've made an appointment with John Zouroudis. He'll have to witness your signature.'
'You know Brinos, I put $50,000.00 into this house. But we've got to get St Luke Street away from Robin.'
'I can see that I will have to make some sort of adjustment.'
'I will have to keep on paying you and I might have to put it through my account'.
I understood this last statement to mean my share of the rent from Randwick.
I did not say anything. I assumed that Basil would transfer back to me my share of Randwick whenever I wanted it, otherwise I would never have gone down to John Zouroudis's Office. "
There is no question that Basil did consult Mr Claude Bilinsky, a solicitor. Basil told Mr Bilinsky that Brinos was to transfer his interest in the Randwick property to him and that he would relinquish his claim to an interest in the Maroubra property. He told Mr Bilinsky he had put a substantial amount of money into the Maroubra property and done work on it. He told Mr Bilinsky that his brother had acknowledged that he would transfer the half interest in St. Luke Street to him. He told Mr Bilinsky that he had agreed to forego his interest in Maroubra. On the basis of those instructions Mr Bilinsky prepared two documents. One was the memorandum of transfer of Brinos' interest in St. Luke Street for an express consideration of $1. The other document Mr Bilinsky prepared was called an " Acknowledgment ." It was in the following terms:
" I, Basil Theo Notaras of 17 Cantrill Avenue, Maroubra in the State of New South Wales, 2035 hereby acknowledge that upon the transfer to me by Brinos Theo Notaras of his one half interest as tenant in common in the property known as 22 St Luke Street, Randwick, which is the whole of the land in folio identifier 21/4396. I have no interest whatsoever in the property known as 17 Cantrill Avenue, Maroubra being the whole of the land in folio identifier 62/245038.
Dated this 22 day of August, 2008.
Basil Theo Notaras "
The parties attended on a solicitor, a Mr John Zouroudis, on 22 August 2008. According to Brinos, the meeting was very brief. He said Mr Zouroudis took them to his conference room and gave Basil the memorandum of transfer to sign. He also signed where it was pointed out that he should. He says he was given and shown only one piece of paper and the parties then left Mr Zouroudis' office. He said once the transfer was signed Basil said no more about it, except that he would pay Mr Zouroudis' costs.
According to Basil, the parties saw Mr Zouroudis because Mr Zouroudis had been retained to provide independent advice to Brinos. He said that initially Brinos and Mr Zouroudis spent time alone together before documents were signed. Basil said that in the presence of Mr Zouroudis, his assistant and Brinos, he signed not only the transfer, but also the acknowledgment. He also said that Mr Zouroudis, in the presence of both he and Brinos, said that:
" I can understand what's happening here. You're exchanging interest in one property for an interest in another property. Basil is relinquishing his interest in Cantrill Avenue in favour of Brinos and Brinos is transferring his interest in [xx] St. Lukes Street to Basil in exchange for Basil's interest in Cantrill Avenue. "
Mr Zouroudis was not called. I do not think any inference can be drawn adversely to either party as a result of Mr Zouroudis not being called. On Basil's case, Brinos should be expected to have called Mr Zouroudis because Mr Zouroudis was acting as Brinos' solicitor. However, on Brinos' case that was not so and Basil might be expected to have called Mr Zouroudis to corroborate Basil's version of events.
Those are the material circumstances leading to the execution of the memorandum of transfer which gives rise to the dispute. The transfer was subsequently registered. Basil paid the whole of the duty on the transfer of $48,740.
The question of whose version should be accepted as to the true arrangement depends partly upon the credit of the two principal witnesses. But it also depends on the probabilities objectively assessed, and these are more important. In relation to the credit of Brinos and Basil, I have already said that where their evidence conflicts I prefer Basil's evidence. Brinos was an unsatisfactory witness. Many of his answers were evasive. I would not accept his evidence unless it was against interest, or was corroborated by other reliable evidence, or was in accordance with objective probabilities.
Two particular objective matters are advanced by counsel for Brinos as supporting Brinos' version of events. The first is that the transfer does not express the real consideration as deposed to by Basil, namely, Basil's relinquishing a claim to the Maroubra property or relinquishing a beneficial interest in that property. However, the memorandum of transfer was prepared by Mr Bilinsky, who also prepared the acknowledgment. It could not be suggested (and it was not suggested) that Mr Bilinsky was told there was an understanding that the transfer was to shelter the property against claims by Robin Gunther.
It is clear Mr Bilinsky was told the very matters Basil now asserts in this litigation. It was on that basis he prepared the acknowledgment as well as the transfer. His insertion of a nominal consideration in the transfer was for convenience. He understood, as was the fact, that ad valorem duty would be payable on the transfer.
The second matter advanced by counsel for Brinos as suggesting Basil's version of events is objectively improbable is that it is said that Brinos' half interest in the Randwick property was worth considerably less than Basil's half interest in the Maroubra property, or at least that this was the then understanding of the parties at the time. The Randwick property was valued for stamp duty purposes at $2.3 million.
In October 2008, according to Basil, whose evidence on this I accept, Brinos told him that he, Brinos, needed to sell the Cantrill Avenue property and that an agent had told him the property should sell for about $1.7 million, but that $100,000 needed to be spent on the property.
There is no dispute that Basil offered to purchase the property for $1.6 million, of which only $1.3 million would be paid immediately and that the balance would be payable only after three years. That proposal was not accepted. Nonetheless, counsel for Brinos rightly points to the fact that Basil said he was not seeking to take advantage of his brother. Hence, it could be said there was a significant disparity between the values of the two properties which might make it unlikely Brinos would agree to the arrangement Basil described.
In fact, the Maroubra property was sold in March 2010 for $2,180,000, but that was not something that was known at the time.
However, the discussions concerning the value of the Maroubra property took place after the agreement for the transfer of Brinos' interest in the Randwick property. It does not appear that the parties focused upon the value of the Maroubra property, or indeed the comparability of the values of the two properties, when the agreement was made in August 2008 concerning Randwick.
In any event, all other objective considerations strongly favour Basil's version of events. First, it is not probable that Brinos would have been a party to an arrangement to deceive his partner as to his interest in the Randwick property. In August 2008 Brinos was not on bad terms with Robin Gunther. He said their relationship was volatile, but there is no evidence they were contemplating a separation. To the contrary, on 6 August 2008 Brinos and Robin Gunther purchased a property in Darling Point as joint tenants for some $2.55 million. They had been a couple since the mid-1990s and they married the following year.
I see no reason why Brinos would have wished to deceive his partner. Indeed, in cross-examination Brinos said (contrary to his affidavit) that it had not occurred to him on or about 22 August 2008 that he should transfer his interest in the St. Luke Street property to his brother to protect his assets against claims of his partner. Such a plan would have had no reasonable prospects of success, except possibly in the case of Brinos' death, unless he was prepared to deceive not only his partner, but a court that had to decide on a division of property.
As I understood Brinos to resile from this explanation of the transaction, there was no intelligible explanation from him as to why he should have executed the transfer, except that he said he was compliant with his brother's demands. He said he was pressured into the transaction by Basil and was not able to assess it with a free and voluntary mind. In my view, the evidence does not support that contention.
Basil had a plausible claim to a beneficial interest in the Maroubra property. He and Brinos treated it as a family asset. Basil had contributed to the payment of rates and taxes and had made a substantial contribution to the costs of construction and had lived on the property from the time the house was built without at any time paying rent. Whilst the quantification of Basil's interest in the Maroubra property would have been problematic if any issue to define that interest had been litigated, there was a strong case for saying he had some beneficial interest in the property.
Brinos admittedly kept the transaction secret from his partner, Robin. He says he did not tell Robin about the transfer of his half interest in the Randwick property until 11 February 2009. On that day Brinos sent a fax to Basil that, relevantly, read as follows:
" TO: Basil Notaras
11 February 2009
I can't believe that I let you bully and con me yet again. No wonder you didn't want me to tell Robby about the Agreement to transfer St. Luke Street to you for Cantrill Avenue. It wasn't till we moved in here [viz. Maroubra] that I realized the lack of respect you have for my property and to see the way you have trashed it. At your insistence, I lied to Robby but this has put a huge strain on our relationship and I can't stand much more of this. I told her that I wanted you to buy me out of St. Luke Street as I thought you may pay me the money as agreed, but as yet you have paid nothing ...
I retract nothing in my previous text messages and 2 statements, except the parts relating to St. Luke Street as I have now told Robby the truth. "
Brinos said that that facsimile was prepared for him by Robin. She must have prepared it on the information he provided to her. Robin was a solicitor. The facsimile contains a clear admission that there was an agreement for Brinos to " transfer St. Luke Street to you for Cantrill Avenue. " Brinos said that in fact he had never told Robin he had agreed to exchange his interest in St. Luke Street for Cantrill Avenue. But he had no explanation as to why, if that were so, Robin should have included that statement in the facsimile. Robin Gunther did not give evidence to explain the admission. There is no adequate explanation as to why the facsimile containing that admission should have been sent, unless the statement in it were true.
In the course of his oral evidence, Brinos accepted that the lie he told Robin referred to in the facsimile was that Basil had agreed to pay money to buy out his interest in St. Luke Street. He later retracted that admission, but I do not accept the retraction. The truth is in the second sentence, that Brinos had agreed to transfer St. Luke Street to Basil for Cantrill Avenue, not that there was an agreement for payment of money.
The next objective consideration is that the instructions Basil provided to Mr Bilinsky are completely consistent with the evidence given by him in these proceedings. Unless Basil was preparing a sinister plot to trick his brother out of the Randwick property by having an acknowledgment of a relinquishment of his interest prepared and then concealing it, his conduct is inconsistent with Brinos' version of events. I do not accept that Basil put in train an elaborate deception with a view to being able later to trick Brinos out of the Randwick property when Brinos called for its retransfer. It was never suggested to Basil in cross-examination that he gave instructions for the preparation of the acknowledgment for such a purpose. Nor do I think that suggestion could have properly been put to him.
Finally, Basil's version of events is corroborated by Mr Ross Turnbull. Mr Turnbull had known both Brinos and Basil since their school days. He was evidently a close friend of Basil, but he was consulted in October 2008 by Brinos with a view to his providing financial advice to Brinos, who told him that he then had financial problems as a result of his property dealings in conjunction with Robin Gunther.
Mr Turnbull gave evidence that Basil had previously informed him in August of the arrangement Basil had made with Brinos for the transfer of Brinos' interest in St. Luke Street and Basil's relinquishing an interest in Cantrill Avenue. He gave evidence that at the meeting on 17 October 2008 with Brinos, when Brinos' financial position was being discussed, he said to Brinos that he understood that Brinos had transferred his interests in the flats in St. Luke Street to Basil, and that Basil had given up his interest in Cantrill Avenue. Brinos confirmed that that was the position. He asked Brinos whether he had told Robin and when advised by Brinos that he had not, advised him to do so.
Brinos denied such a discussion took place. However, I accept Mr Turnbull's evidence.
For these reasons I have no hesitation in rejecting Brinos' version of the events leading to the execution of the memorandum of transfer of his interest in the Randwick property. I accept Basil's version of events, that is to say, I accept that in return for that transfer Basil relinquished his claim to the Maroubra property.
It is common ground that on the basis of that finding of fact, all of the plaintiff's claims must fail.
Accordingly, I order that judgment be entered for the defendant on the plaintiff's statement of claim.
[Parties addressed on costs.]
The defendant seeks an order that the plaintiff pay his costs on the ordinary basis and on the indemnity basis from 11 February 2011. The plaintiff opposes an order for indemnity costs. The application for indemnity costs is made on the basis of a letter of 11 February 2011 from Horowitz & Bilinsky, solicitors for the defendant, to the solicitors for the plaintiff.
The offer was expressed to be made on the principles in Calderbank v Calderbank [1976] Fam 93. The proposal was that the matter be settled on the basis that:
(1) the proceedings be dismissed,
(2) the defendant pay the plaintiff $20,000 within 21 days; and
(3) that each party pay his own costs other than for costs orders already made.
The offer was said to remain open until the trial date, that is, 21 February 2011.
I think the offer was expressed to be open for a sufficient time to allow the principles in Calderbank v Calderbank to be invoked. The questions are whether or not the offer contained a genuine element of compromise and, if so, whether the plaintiff was acting unreasonably in not accepting the offer. In my view, the offer did contain a genuine element of compromise. The element of compromise was not only a compromise in respect of payment of $20,000 but also the offer that each party pay his own costs. If the plaintiff failed, it was to be expected he would pay the defendant's costs on the ordinary basis at least. By offering to give up a right to recover costs that had been incurred up to 11 February 2011, the defendant was making a genuine compromise of his position.
The question is whether the plaintiff acted unreasonably in not accepting the offer. In my view, the objective matters to which I referred in the course of my reasons do establish that the plaintiff, if acting reasonably, ought to have accepted the offer. I have in mind in particular the objective evidence that the defendant had a beneficial interest in the Maroubra property, the terms of the facsimile of 11 February 2009 in which the plaintiff admitted the agreement which the defendant contends was made, and the corroboration of the defendant's position in the evidence of Mr Turnbull, whose credit was not and could not have realistically been challenged.
Accordingly, I order that the plaintiff pay the defendant's costs on the ordinary basis up and to and including 11 February 2011 and on the indemnity basis thereafter.
The exhibits should be dealt with in accordance with the rules.
Decision last updated: 08 June 2011
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