Perronnet v Goedemans
[2025] VSCA 28
•7 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0098 |
| INGRID PERRONNET | Applicant |
| v | |
| ELIZABETH GOEDEMANS | Respondent |
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| JUDGES: | NIALL CJ, McLEISH and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2024 |
| DATE OF JUDGMENT: | 7 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 28 |
| JUDGMENT APPEALED FROM: | [2023] VSC 411 (McDonald J) |
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APPEAL – Supreme Court Act 1986, s 17(2) – Appeal pursuant to s 17(2) an appeal by rehearing – Nature of appeal by rehearing.
CONTRACTS – Formation – Alleged oral agreement – Alleged agreement required respondent to transfer half interest in property to applicant with other half transferable upon respondent’s death – Respondent denied agreement – Respondent and other persons advanced competing accounts of events – Trial judge found alleged agreement not established – Whether trial judge’s principal findings of fact erroneous – No documentary evidence supporting applicant’s account – Leave to appeal granted – Appeal dismissed.
CONTRACTS – Whether contract created – Post-contractual conduct – Post-contractual conduct not pointing to agreement – Post-contractual material providing basis to doubt applicant’s credibility – Leave to appeal granted – Appeal dismissed.
Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; Lee v Lee (2019) 266 CLR 129, referred to – Regreen Asset Holdings Pty Ltd v Castricum Brothers Pty Ltd [2015] VSCA 286; United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236, applied.
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| Counsel | |||
| Applicant: | Mr RG Craig KC with Ms RM Burd | ||
| Respondent: | Mr PW Collinson KC with Mr LM Stanistreet | ||
Solicitors | |||
| Applicant: | Aptum Legal Pty Ltd | ||
| Respondent: | Meerkin & Apel Lawyers | ||
TABLE OF CONTENTS
Issues in the proceeding
Judge’s reasons
Evidence at trial
Ingrid Perronnet
Lee Holland
Karin Anderson
Elizabeth Goedemans
Joseph Nowicki (‘Joe’)
Xavier Perronnet
Applicant’s submissions
Respondent’s submissions
Legal principles governing the proposed appeal
Consideration of the evidence
Evidence of participants at alternative meetings
Post-contractual conduct
Conclusion
NIALL CJ
MCLEISH JA
KENNEDY JA:
This matter involves a family dispute over a property in Camberwell. The property is owned by the respondent, Elizabeth Goedemans.
After a trial, a judge in the Trial Division found that Elizabeth,[1] aged in her early seventies, had conferred a licence upon her daughter, Ingrid Perronnet, to reside at the property, and to undertake renovations with her consent. The judge also found that there was no agreement between the two women for the transfer of the property. The judge upheld a claim for damages brought by Elizabeth against Ingrid, concerning works undertaken on the property.
[1]Without disrespect, we will refer to the principals in this case by their first names.
Ingrid seeks to appeal against the judge’s findings. Although there are three proposed grounds of appeal, the matter essentially involves a challenge to the judge’s principal findings of fact, in particular, as to events surrounding an alleged agreement between Ingrid and Elizabeth on or around 28 April 2018. In the proposed appeal, this Court would conduct a ‘real review’ of the evidence at the trial and the judge’s reasons for judgment in order to determine whether the judge has erred in fact or law.[2] Having heard the application for leave to appeal and the appeal together, it is convenient to undertake that review directly.
[2]Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, 686 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22 (‘Robinson Helicopter’); Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ). See further, [139]-[148] below.
For the reasons that follow, leave to appeal should be granted because the proposed appeal has reasonable prospects of success, but the appeal should be dismissed.
It will be convenient to describe the controversy and the litigation in general terms before turning to the evidence in greater detail.
Issues in the proceeding
As mentioned, the applicant, Ingrid, is the daughter of Elizabeth, the respondent. Elizabeth is the registered proprietor of the property in dispute, which is at 5 Holyrood Street, Camberwell, where Elizabeth resides with her partner, Joseph Nowicki (referred to as ‘Joe’).
Ingrid married her former husband, Lee Holland, in December 2005. They separated in September 2017 and divorced in February 2019. They have two children. Until May 2018, Ingrid and her children lived next door to the property in dispute, at 7 Holyrood Street, Camberwell, which was owned by Ingrid. Ingrid’s domestic partner is now Frédéric Mosson.
Ingrid’s younger brother is Xavier Perronnet. He is married to Sarah, and they have three children. They lived with Elizabeth at 5 Holyrood Street until May 2018, when they moved next door to No 7. At the same time, Ingrid and her children moved from 7 Holyrood Street to No 5, and Ingrid began carrying out renovations to 5 Holyrood Street.
In about April 2018, Xavier and Sarah agreed to purchase 7 Holyrood Street from Ingrid for $1.9 million. They signed a contract of sale on 25 January 2019 and Sarah became the sole registered proprietor of 7 Holyrood Street on 31 January 2019.
In January 2020, Frédéric moved into 5 Holyrood Street, having commenced a relationship with Ingrid. On 6 November 2020, Elizabeth demanded, through her solicitors, that Ingrid and Frédéric leave the property.
On about 15 February 2022, Ingrid and Frédéric, along with Ingrid’s children, vacated 5 Holyrood Street after the Magistrates’ Court of Victoria made ex parte interim family violence intervention orders against Ingrid and Frédéric.
In the meantime, Elizabeth had commenced a proceeding against Ingrid and Frédéric on 26 February 2021. The main issue in the proceeding was initially a claim for possession of the property at 5 Holyrood Street. Elizabeth alleged that, in or about May 2018, she had allowed Ingrid and her two children to take up residence at the property while Elizabeth continued to live there as well. Elizabeth alleged that she never expressly permitted Frédéric to reside at the property. She alleged that, by a letter dated 6 November 2020 through her lawyers, she had determined Ingrid’s licence to continue residing at the property and required Ingrid and Frédéric to vacate by 1 February 2021.
Elizabeth amended her statement of claim on 13 May 2022. Elizabeth alleged that, between 6 November 2020 and 15 February 2022, when Ingrid and Frédéric vacated the property, Ingrid had been a trespasser, and Frédéric had been a trespasser for at least that time. Elizabeth alleged that, while they were trespassers, Ingrid, or alternatively Ingrid and Frédéric, had carried out various works at the property without her consent. She sought the costs of rectifying those works in the sum of $142,732, and a declaration that Ingrid did not have any interest in the property.
By their defence, Ingrid and Frédéric denied Elizabeth’s allegations. Ingrid counterclaimed against Elizabeth, alleging that the two of them had entered into an agreement on or around 28 April 2018, by which Ingrid would sell 7 Holyrood Street to Xavier for $1.9 million (being, allegedly, approximately $600,000 less than its market value), Ingrid would pay for and carry out renovations and improvements to the property at 5 Holyrood Street and move into that property with her children, and she would be entitled to live there for the rest of her life. Ingrid alleged that, in return, it was agreed that Elizabeth would transfer one half of her registered interest in the property to Ingrid then, and her remaining interest upon her death.
The agreement was alleged to be partly oral and partly to be inferred from conduct (including the subsequent transfer of 7 Holyrood Street to Sarah for $1.9 million). Ingrid alleged that, in breach of the agreement, Elizabeth refused to transfer one half of her interest in the property to Ingrid and instead demanded that Ingrid and Frédéric vacate the property by 1 February 2021. Alternatively, Ingrid alleged that the agreement comprised a representation and promise by Elizabeth to Ingrid which gave rise to a proprietary estoppel.
Ingrid sought a declaration that Elizabeth held one half of her interest in 5 Holyrood Street on trust for Ingrid, subject to Ingrid’s right to reside in the property until her death. She also sought a declaration that Elizabeth held her remaining interest in the property on trust for Ingrid, subject to Elizabeth’s right to reside at the property until her death.[3]
[3]The pleading is not clearly expressed. The pleaded terms included a term that Ingrid would be entitled to live at the property for her entire life. There is no pleaded term entitling Elizabeth to live there as well.
Judge’s reasons
The trial took place over seven days. Although documentary evidence played a relatively minor part and the principal events were conversations the subject of competing evidence, the evidence in chief of Ingrid, Elizabeth, Xavier, Lee and Joe was all given in the form of written witness statements, including as to critical conversations between them. We will return to the evidence in greater detail later in these reasons. A further witness statement was tendered by Ingrid, containing the evidence in chief of Karin Anderson, a friend of Elizabeth. Again, we will refer to this evidence later in these reasons.
The judge concluded that there was no agreement made between Elizabeth and Ingrid in April 2018, or at any time, to the effect alleged by Ingrid. He found that Ingrid was liable to pay Elizabeth damages in the sum of $138,978.61 in respect of works undertaken by Ingrid while she lived at 5 Holyrood Street, which were either substandard or undertaken without the consent of Elizabeth.[4]
[4]Goedemans v Perronnet [2023] VSC 411 [3] (McDonald J) (‘Reasons’).
The judge found that, in early 2018, Xavier discussed a proposal with Elizabeth under which he would purchase 5 Holyrood Street and a beach house at Rye owned by Elizabeth and Joe. The proposal was that Xavier would undertake those purchases at a discounted price. In return, Elizabeth and Joe would move to a property in Riversdale Road, registered in Sarah’s name, and live there rent-free for the rest of their lives.[5]
[5]Ibid [29].
The judge accepted Elizabeth’s evidence that in about February 2018, Ingrid proposed that she would move into 5 Holyrood Street with her children. Shortly after that, Elizabeth spoke to Xavier and asked him not to proceed with the purchase of 5 Holyrood Street.[6]
[6]Ibid [30].
The judge accepted the evidence of Elizabeth and Xavier that, during a meeting between Ingrid, Xavier and Elizabeth in the kitchen at 5 Holyrood Street shortly thereafter, it was agreed that Ingrid would live at 5 Holyrood Street on the same basis as Xavier and his family had done, namely, rent-free, but with responsibility for all bills. It was also agreed during this meeting that Ingrid could undertake renovations subject to Elizabeth consenting to the proposed works.[7] The judge explained later in his reasons why he rejected Ingrid’s evidence of a different conversation on another occasion around this time.[8]
[7]Ibid [31].
[8]See [23] below.
The judge found that in early May 2018, Elizabeth told Xavier that she was saddened by the prospect of him and his family moving away. Xavier and Sarah agreed to purchase 7 Holyrood Street from Ingrid, and Xavier asked Ingrid what price she wanted. Ingrid told Xavier that she had a total debt of $1.9 million for 7 Holyrood Street and a different property in Rye, and that she wanted to receive a price for 7 Holyrood Street which would clear that debt. Xavier agreed to pay that price, subject to a formal valuation.[9]
[9]Reasons [32].
The judge rejected Ingrid’s evidence that on 26 April 2018 she had a conversation with Elizabeth in the family room at 7 Holyrood Street during which Elizabeth told her that she had spoken to Xavier and had it all worked out.[10] Critically, he also rejected Ingrid’s evidence that, during that conversation, Elizabeth proposed that she would transfer a 50 per cent interest in 5 Holyrood Street to her, with the remaining 50 per cent interest to be transferred upon Elizabeth’s death, in exchange for Ingrid selling 7 Holyrood Street to Xavier for $1.9 million, moving into 5 Holyrood Street, and paying for and carrying out renovations and improvements to that property.[11]
[10]Ingrid deposed to the meeting having taken place on 26 April 2018, whereas her pleading referred to a date ‘[o]n or around 28 April 2018’. For present purposes, we adopt the date asserted by Ingrid in her evidence.
[11]Reasons [33].
The judge did not expressly base this last conclusion on any evaluation of the credibility or reliability of the witnesses. He relied on the following matters:
(a)Under the terms of the deal as alleged by Ingrid, Elizabeth would be giving up the financial security which 5 Holyrood Street provided to her. Under the alleged deal, Elizabeth would not be able to raise funds for her retirement by selling 5 Holyrood Street. In particular, the immediate transfer of the 50 per cent interest in the property would require an amendment to the title to record Ingrid as a tenant in common with a 50 per cent interest.[12]
(b)The deal as alleged by Ingrid represented a very significant departure from Elizabeth’s testamentary intentions as recorded in her will at the time. That will had been executed on 23 January 2005. Under its terms, subject to a life interest in favour of her elderly parents, Elizabeth bequeathed the property at 5 Holyrood Street to Xavier and her half share in the beach house at Rye to Ingrid. The bequest to Xavier was worth substantially more than the bequest to Ingrid. Ingrid gave evidence that Elizabeth had told her that she wanted to switch the position of Xavier and Ingrid under the 2005 will because she believed that Ingrid had greater need for financial assistance.[13] The evidence of that last conversation was rejected by the judge. It was, he noted, not referred to in Ingrid’s witness statement or put to Elizabeth in cross-examination.[14]
(c)Neither of the steps that needed to be taken to give effect to the alleged deal had taken place. The certificate of title had not been amended to record Ingrid’s 50 per cent interest as tenant in common, and Elizabeth’s will had not been amended to provide for Elizabeth’s remaining 50 per cent interest to be bequeathed to Ingrid.[15]
(d)An account of the reason Ingrid gave, for not ensuring that Elizabeth’s will was altered to record the alleged deal, had not been put to Xavier, Elizabeth or Joe in cross-examination. The judge said that Ingrid’s explanation for her failure to take steps in 2018 to ensure that the will recorded the deal was that she was acting on the advice of her solicitor, Ben Waterson. The judge said that Ingrid’s evidence was that Mr Waterson’s advice was that no transfer or other documents could be prepared until the consent orders for Ingrid and Lee’s divorce had been finalised. The judge said that the failure to put Ingrid’s account of the advice provided by Mr Waterson during meetings in May 2018 and late 2018 to Elizabeth, Xavier and Joe was ‘sufficient, of itself, to reject Ingrid’s evidence’. The judge further inferred that, had Mr Waterson been called to give evidence, that evidence would not have assisted Ingrid’s case.[16]
(e)Several documents authored by Ingrid recorded the deal in terms the judge found to be inconsistent with the agreement she alleged.[17]
[12]Ibid [35]–[36].
[13]In 2017 through to February 2018, Xavier had received $4.7 million gross from the sale of shares in a company of which he was proprietor and manager.
[14]Reasons [37].
[15]Ibid [38].
[16]Ibid [40]–[41].
[17]Ibid [43]–[46].
As to the documentary evidence, first, there were several messages Ingrid sent to friends in which she described what had been decided:
(a)On 1 May 2018, Ingrid sent a Facebook message to her friend, Christine Griffiths, stating ‘Selling Camberwell to Xavier, buying mum’s and keeping the beach house with a small debt’.
(b)In a Facebook message dated 10 September 2018 to her friend, Sarah Castle, Ingrid said, ‘Sold the house, bought my mum’s next door, doing a cheapish reno and got to keep the beach house’.
(c)In a WhatsApp message dated 17 October 2018 to her friend, Megan Sleep, when asked whether number 5 Holyrood Street was hers, Ingrid stated, ‘50 per cent now and balance later. Rye outright with a small debt. Mum just worried a new guy will come along and try and take Camberwell so wants some control until later’.
(d)In a WhatsApp message dated 11 December 2018 to her friend, Linh Guzzardi, Ingrid said, ‘House sold, bought mum’s next door, renovated as much as I could before we came here, and kept the beach house’.
The third message is consistent with the pleaded version of the deal. However, the judge said that it was inconsistent with the other three messages, in which Ingrid claimed to have bought the property. The judge said that, in the circumstances, he placed ‘little evidentiary weight on the 17 October 2018 message’.[18]
[18]Ibid [47].
Secondly, on 29 May 2019, Ingrid completed an eight page letter to Elizabeth which set out her version of the deal. The letter included the following:
The agreement was as follows:
1. You indicated to me that you were going to give each of us $1m in inheritance. Remember this was not my idea, this is what you decided and offered.
2. For Xavier is [sic] was going to be calculated by my selling No 7 to him at a lesser value than its true value and you giving him half of your house in Rye. You calculated $600k from Camberwell and $400k from Rye giving a total of $1m.
3. For me you’d worked out that the amount I undersold No 7 to Xavier for ie $600k plus the $1m you were going to give me was roughly the value of half no 5 and so I would go on title to that effect. We were going to sort out the documentation when we returned from France at the beginning of 2019.
The judge noted that there were significant differences between the pleaded version of the deal and that set out in the 29 May 2019 letter. In addition, he rejected evidence given by Ingrid that when Elizabeth proposed that Ingrid sell 7 Holyrood Street to Xavier for $1.9 million, Elizabeth stated that this was $600,000 less than its market value. The judge found that there was no evidence to support a finding that in late April 2018 Elizabeth had any basis for believing that the market value of 7 Holyrood Street was $2.5 million.[19] Subtraction of the $1.9 million amount from this alleged market value yielded the amount of $600,000 by which Ingrid said in the letter that she ‘undersold’ that property to Xavier, which was the basis upon which the letter asserted that Elizabeth had worked out the transactions allegedly agreed.
[19]Ibid [49]–[50], [56].
The judge noted that it was not put to Elizabeth that she had been told by anybody that the market value of 7 Holyrood Street was $2.5 million and that she had proposed to Ingrid that she sell it for $600,000 less than market value. It was put to Elizabeth in cross-examination that in February 2018 she had asked Joe what he thought was the value of 7 Holyrood Street and that, in response, Joe had told Elizabeth ‘$2 million plus’. Joe had worked as a certified practising valuer for 57 years. Elizabeth denied that any such discussion took place. The judge noted that it was not put to Joe that he had any discussion with Elizabeth regarding the value of 7 Holyrood Street.[20]
[20]Ibid [51].
The judge said that, on the basis of Ingrid’s evidence, it was Joe who told Elizabeth that 7 Holyrood Street was worth $2.5 million. The judge considered this highly unlikely, given that the two valuation reports that were placed in evidence valued the property at $1.795 million and $2.25 million respectively as at May 2018.[21]
[21]Ibid [52]–[53].
The judge accepted the evidence of Xavier that there was no discussion with either Elizabeth or Ingrid to the effect that the price of $1.9 million represented a discount to market value, let alone a discount of $600,000. The judge accepted Xavier’s evidence that he agreed with Ingrid that the purchase price of 7 Holyrood Street would be $1.9 million, subject to a market valuation prior to the completion of the purchase.[22]
[22]Ibid [56].
Thirdly, the judge relied on a letter sent by Ingrid’s solicitors on 1 December 2020 to Elizabeth’s solicitors in response to the request that Ingrid vacate 5 Holyrood Street. The letter included the following:
The circumstances giving rise to our client’s occupation of the ground floor at 5 Holyrood Street, Camberwell (5 Holyrood Street) can be summarised as follows:
a. In 2017, our client separated from her former husband Lee Holland and they subsequently finalised a financial settlement. Our client and Mr Holland owned the adjacent property at 7 Holyrood Street, Camberwell (7 Holyrood Street) where they lived with their two children, Oliver and Josephine.
b. As part of our client’s financial settlement with Mr Holland, she was to retain 7 Holyrood Street which was then worth approximately $2.5 million, and a property in Charles Street, Rye. The properties were encumbered by registered mortgages with the total sum of $1.9 million owing. The Rye property was subsequently sold in March 2020 for $1,475,000 and the net sale proceeds were applied to pay various liabilities including a payment to Mr Holland. Our client retained net proceeds of about $900,000.
c. In about April 2018, your client proposed that our client and her children move into 5 Holyrood Street. At that time, your client’s son Xavier lived at 5 Holyrood Street with his family despite the property being in a squalid state. Your client asked our client to renovate 5 Holyrood Street given our client’s extensive experience and skills in home renovations.
d. As part of your client’s proposal, our client would sell 7 Holyrood Street to Xavier for the sum of $1.9 million, which was the amount required to discharge our client’s existing mortgages. This would enable Xavier to exchange residences and obtain a clear title to 7 Holyrood Street.
e. Your client promised our client that, in exchange for her selling 7 Holyrood Street to Xavier for a sum significantly below market value, and undertaking extensive renovations to 5 Holyrood Street, she would acquire a one-half interest in 5 Holyrood Street, which would be registered on title as joint proprietors. Your client explicitly told our client she would be able to remain living at 5 Holyrood Street for the remainder of her life, and that your client’s half share of the property would pass to our client upon her death, pursuant [to] the right of survivorship.
The judge noted that, under the version of the deal set out in this letter, there was no need to amend Elizabeth’s will. Instead, the remaining 50 per cent interest in 5 Holyrood Street would pass to Ingrid pursuant to a right of survivorship because Ingrid and Elizabeth would have been registered on title as joint proprietors as described in the letter.[23]
[23]Ibid [61].
In addition, the judge found that Ingrid’s evidence explaining why she had not sought an amendment to Elizabeth’s will in 2018 was inconsistent with the letter of 1 December 2020. Ingrid had given evidence that she understood that Elizabeth’s will had to be amended in order to provide the transfer of the remaining 50 per cent interest upon the death of Elizabeth. Ingrid’s explanation for not having attended to this matter was that her solicitor had advised that nothing could be done in relation to the two properties until her divorce was finalised. The judge said that this evidence was inconsistent with the statement in the letter that Elizabeth ‘explicitly told’ Ingrid that she would be able to remain living at 5 Holyrood Street for the remainder of her life, and that Elizabeth’s half share in the property would pass to Ingrid on Elizabeth’s death.[24]
[24]Ibid.
The judge then turned to evidence of a heated exchange between Ingrid and Elizabeth on 14 February 2019. Ingrid gave evidence that she overheard Elizabeth tell her friend Karin Anderson ‘the deal is off’. Karin corroborated this evidence. She gave evidence that Elizabeth said to her words to the effect ‘the boyfriend is moving in. If the relationship breaks up I could lose the house. The deal is off because Ingrid has met someone’.[25]
[25]Ibid [63].
Ingrid and Elizabeth had been at Ingrid’s property in Rye. It was common ground that while they were returning to Melbourne, Ingrid called Elizabeth a thief and a liar and was shouting at her and crying.[26]
[26]Ibid [64].
The judge said there was a significant difference between Ingrid and Elizabeth as to what Elizabeth actually said to Karin. In Elizabeth’s version, she had said that Ingrid and the children were going to return to France and live permanently with Frédéric. Elizabeth denied that she had said anything to Karin about the deal being off. The judge considered that it was more probable that Ingrid had heard Elizabeth say something which she believed to be a breach of the agreement which had been entered into in early 2018, and not simply that Ingrid was intending to move to France with her two children to live with Frédéric. The judge said, however, that this ‘simply begs the question as to what had been agreed in early 2018’.[27] The judge said that he had concluded that in late February 2018, Elizabeth agreed with Ingrid that Ingrid and her children could move into 5 Holyrood Street and live there rent-free without any time limit. Elizabeth had agreed that Ingrid could undertake renovations to improve the amenity of the house, subject to Elizabeth consenting to any such works.[28]
[27]Ibid [66].
[28]Ibid [65]–[66].
The judge said that the relationship between Ingrid and Frédéric changed the family dynamics which had existed when the agreement was reached in late February 2018. The judge found that it became apparent to Elizabeth by mid-February 2019 that Ingrid had entered into an intense relationship with Frédéric. When Ingrid overheard Elizabeth speaking to Karin, she understood Elizabeth to be telling Karin that if Frédéric moved into 5 Holyrood Street to live with Ingrid then she, Elizabeth, no longer wanted Ingrid and her children to be living at that property. The judge found that Ingrid’s response, calling her mother a thief and a liar, was a product of her belief that she was being deprived of the opportunity to live at 5 Holyrood Street notwithstanding her investment in the renovations that she had undertaken since May 2018.[29]
[29]Ibid [67]–[68].
Karin also gave evidence that around April 2018, during a telephone conversation she had with Joe, he said words to the following effect:
Are you aware of the deal? The deal is that Xavier is buying Ingrid’s house [7 Holyrood Street] at a discounted price and Ingrid will move in with Liz [at 5 Holyrood Street]. There’s going to be a tenants in common agreement between Liz and Ingrid. Ingrid’s name will go onto the title as owning a half share [of 5 Holyrood Street] and the remainder of the house will pass to Ingrid on Liz’s death. Ingrid will be renovating the house at her own cost.
Joe described this account as a lie when cross-examined about it. Joe gave evidence that it was not until he received an email from Ingrid on 7 August 2020 that he became aware that she was claiming an interest in 5 Holyrood Street as a tenant in common. The judge preferred Joe’s evidence that, during a telephone call on 18 November 2018, Joe told Karin that he had been shocked to read the email making that claim. In late 2017, he, Elizabeth and Xavier had agreed that Xavier would purchase 5 Holyrood Street and that Elizabeth would use the proceeds to fund her retirement. Elizabeth and Joe’s property at Rye would be sold to Xavier, and Elizabeth and Joe would be entitled to live rent-free at the Riversdale Road property for the rest of their lives. The judge found that, if Joe had been aware that Ingrid was claiming a 50 per cent interest in 5 Holyrood Street, this would have had a significant impact upon his future plans with Elizabeth. If Ingrid were registered as a tenant in common, then Elizabeth would not have been able to sell 5 Holyrood Street to fund her retirement.[30]
[30]Ibid [72]–[73].
On that basis, the judge considered it unlikely that Joe would have told Karin in May 2018 that Ingrid and Elizabeth would be tenants in common, without expressing concern about the potential adverse impact of such an arrangement upon himself and Elizabeth.[31]
[31]Ibid [73].
In weighing the conflicting evidence of Joe and Karin, the judge also had regard to a letter written by Karin and sent to Ingrid’s lawyers on 17 August 2020 addressed ‘to whom it may concern’. The letter recounted the conversation with Joe. Among other things, Karin recorded that Joe had ‘elaborated on a deal’ Elizabeth ‘was to enter into’ with Ingrid, ‘whereby the son [Xavier] would purchase Ingrid’s house for a discounted amount’. The letter continued:
Ingrid’s part of the deal was for her and her children to move in with her mother, renovate the house (at her cost) and her name be placed on the title as Tenants in Common with her mother.
I had only heard the term Tenants in Common but wasn’t really aware what it meant until Joe elaborated.
The judge noted that Karin made no reference to Ingrid receiving 50 per cent of Elizabeth’s interest in 5 Holyrood Street upon her death. Also, the letter referred to Joe selling his half interest in the Rye property at a heavily discounted value, whereas Joe’s unchallenged evidence was that the property was independently valued at $800,000 and Xavier paid a market price of $400,000 for Joe’s interest (Elizabeth gifting her own half interest).[32]
[32]Ibid [75].
The judge noted that Karin’s evidence as to the terms of the agreement between Ingrid and Elizabeth was second-hand hearsay. There was no evidence that Joe directly participated in any discussions with Elizabeth and Ingrid at the time they reached their agreement. As a result, even if he had accepted Karin’s evidence regarding her discussion with Joe, the judge said that he would have accorded that evidence little weight.[33]
[33]Ibid [76].
As a result, Ingrid failed to establish the agreement that she had alleged. The judge found that this meant that her claim based on proprietary estoppel also had to be rejected. In short, Elizabeth had not made the representation and promise as alleged. The judge found there was no basis for granting Ingrid any of the relief sought in the counterclaim.[34]
[34]Ibid [77].
It is not necessary to outline the issues that were before the court in relation to Elizabeth’s claim, which the judge subsequently allowed.[35]
[35]Ibid [95].
Evidence at trial
As mentioned, the evidence in chief of the witnesses took the form of written statements which the witnesses adopted in court. It is necessary only to set out the evidence bearing on the agreement alleged by Ingrid.
Ingrid Perronnet
In her witness statement, Ingrid said that, soon after she and Lee separated in September 2017, she told Elizabeth. They had discussions from September 2017 to April 2018, in which Ingrid ‘confided in Elizabeth’ that the total amount she owed on the mortgages on 7 Holyrood Street and the Rye beach house was approximately $1.9 million, and that it was likely that 7 Holyrood Street would need to be sold for the property settlement with Lee. She also told Elizabeth that she wanted to remain in close proximity to her.
Ingrid stated that Elizabeth said ‘on numerous occasions’ that she would support her emotionally through her separation and divorce, including by saying ‘this house will always keep us safe’.
Ingrid also said that, in around February 2018 and on a number of occasions until around April 2018, Xavier complained to her that 5 Holyrood Street was too small for him and his family to share with Elizabeth. During this time, Ingrid said that Elizabeth told her that she felt pressured by Xavier to move out of 5 Holyrood Street and to purchase and live at the property in Riversdale Road so that Xavier could purchase 5 Holyrood Street at a discount and live there.
Ingrid said she had a conversation with Elizabeth on 26 April 2018 in the family room at 7 Holyrood Street. Elizabeth told her that she had spoken to Xavier and had ‘worked it all out’. Without descending to precise details of who said what during this conversation, Ingrid said:
51.1 Elizabeth offered to transfer to me one-half ownership of No 5 and transfer to me her remaining interest in No 5 upon her death, in exchange for me selling No 7 to Xavier for $1.9m, moving into No 5, and paying for and carrying out renovations and improvements to No 5 (the Proposal).
51.2 Elizabeth acknowledged that the sale price ($1.9m) represented less than the market value of No 7, saying words to the effect of ‘sell your house to Xav at a discount for $1.9m’.
51.3 I asked Elizabeth how the arrangement would affect Xavier. Elizabeth told me that in addition to getting No 7 at a discount, she would transfer her share of Napier Street [Rye] to Xavier and Xavier would buy the remainder of 24 Napier Street at a discount from Joe.
51.4I asked Elizabeth what Xavier thought of the Proposal. In response, Elizabeth said words to the effect of, ‘it suits me and Xav’.
Ingrid stated that she told Elizabeth that she could not commit to selling 7 Holyrood Street without Lee’s approval. She said that, on 27 April 2018, Xavier asked Ingrid if she had ‘made a decision’ and Ingrid told him that she would agree to the deal if Lee was happy with it.
On 28 April 2018, Ingrid said, she explained the terms of the offer to Lee and during that conversation, he agreed to the proposal.
Ingrid stated that shortly after that conversation, she told Elizabeth that she and Lee agreed to the proposal.
In her witness statement, Ingrid went on to articulate what she said was her understanding of the proposal based on the conversations she described, as well as previous discussions with Elizabeth about her estate. We will not set that evidence out. It is of dubious relevance, given the objective theory of contract.
Ingrid also described the text messages and subsequent events to which we have already referred. In this context, she said that, after Xavier and Elizabeth had met with Ingrid’s solicitor, Mr Waterson, they told her that until her divorce settlement was finalised, and consent orders had been made, the formal transfer of 7 Holyrood Street and the transfer of half of 5 Holyrood Street to Ingrid ‘could not occur’.
Finally, Ingrid referred to the telephone conversation between Elizabeth and Karin on 14 February 2019 which Ingrid said she overheard (because it was on loudspeaker). Ingrid said that ‘Elizabeth told Karin that the “deal” was “off” because [Ingrid had] “met someone”’. After the conversation, Ingrid said, she raised the matter with Elizabeth, who told her ‘The deal’s off. You were never supposed to be with someone. You were supposed to be my carer. Now that you’re with someone, you’ve broken the contract - the deal’s off’. Ingrid said that, on the way home in the car after this, she was very upset and crying, and told Elizabeth that she had done her part and had ‘sold the house’ to Xavier ‘cheaply’. Elizabeth told her ‘that’s just the way it is’. Ingrid said that Elizabeth called Xavier and told him that she had told Ingrid that ‘the deal was off’.
In cross-examination, Ingrid denied being party to any conversation between Elizabeth and Xavier in relation to her living at 5 Holyrood Street. Ingrid said that an alleged conversation in which Xavier queried with her how the bills were going to be paid at 5 Holyrood Street if he was not living there did not happen.
Ingrid said that Elizabeth ‘absolutely’ knew that the debt which Ingrid and Lee had across the properties was $1.9 million. She said that Elizabeth, Xavier and Ingrid herself knew each other’s business intimately and ‘looked out for one another’.
It was put to Ingrid that the figure of $600,000 less than market value was never discussed between herself and Elizabeth, which she denied.
In an intervention by the judge,[36] the following exchange occurred:
So please tell me, why did you not immediately, certainly immediately you knew your mother had serious health issues, why did you not immediately take steps to ensure that the Will was changed?---Okay. So when Xavier - Xavier had made an appointment with a solicitor for my divorce matter and he and Elizabeth - now, that would have been in May, early May 2019. He went with mum to the solicitor, I didn’t go, I had a panic attack, I couldn’t go. So he and mum went to do this meeting where they talked about my financial position, but they talked the global - sorry, what we were globally going to be doing. And when they came back we were in the family room at number 7. They told me that they had been told that no transfer of houses, no documents like that could be done until after the consent orders for my divorce had been finalised. So effectively everything had to be put on hold in relation to that. And then when I went to the solicitors just before we went overseas, so the later part of the year, just before we went overseas to sign the last of the paperwork with this particular solicitor, my mum was there and Joe was there and as we were walking out the door she was talking to - she was saying, ‘Fine, I will see you soon. Actually, we will see you when we get back from France because we will need to see you do all the paperwork for number 5’. So I thought we’re going to do - like, we couldn’t do it earlier, and as soon as it looked like we were going to get close to doing it, we were agreeing to go and see a solicitor early 2019. So that’s where we get to early 2019. And then, get back, I think I’m still in that belief, and then she says the deal’s off and then it becomes a nightmare of me trying to get her to do those changes. I attempted many times, I had conversations with her.
Well, Ms Perronnet, I think the pretty clear position is that if your mother had died at any time in the second half of 2018 then in accordance with the terms of her Will and contrary to the deal as you say you entered into?---Yes.
Number 5 would have gone to - - -?---Would have gone to Xavier.
- - - to your brother?---But I trusted my brother to do the right thing because he knew that arrangement as well. I trusted my brother and my mum. So had that happened I just trusted Xavier would say, No, that’s not right, that’s not what mum wanted’. So I didn’t have the panic oh, no, I’ve got to, you know — I just did what I was told, I couldn’t do it before, consent orders, have that meeting with the solicitor, do it in early — as soon as we come back from overseas.
[36]See also [65] below.
Later in her cross-examination, Ingrid gave a long, somewhat rambling answer when asked about the conversation she said that she overheard between Elizabeth and Karin Anderson. Her answer conveys something of the flavour of her oral evidence, and it is convenient to set it out in full:
And then what happened was she was talking to Karin Anderson on speaker phone and she was telling Karin Anderson that she was excited because you were going to move to France to be with Fred?---No, that’s not at all what happened, no. … I’m vacuum cleaning, I’ve got the vacuum cleaning noise going. And I turned the vacuum cleaner off and I hear her talking to Karin, and I happen to hear, you know, this conversation about, ‘What are you going to do now with the guy?’, and she says, ‘The deal’s off’. That just happened to be - at the time I was at the bottom of the stairs and the vacuum cleaner had just turned off. Well, it was like someone had pulled the rug out from under my life and I remember like trying not to have a heart attack. And I put the vacuum cleaner under the stairs and I sat at the bottom of [the] stairs trying to compute what I was hearing. And I waited for the conversation to finish, this was early to mid-morning that this happened. And when the conversation finished I went into the room, I know exactly - she was sitting on those two couches just there, and I came in and I was sort of hyperventilating and I said to her, ‘Mum, is there anything you want to talk to me about?’, you know, and she’s like, ‘No, no, no’. I thought oh my God. I said, ‘Are you sure there is nothing you want to talk to me about?’, she said, ‘No, no, no’, and then that’s what I said to her, ‘Listen, mum, I overheard you talking to Karin, what are you saying about this deal?’ We just referred to it as ‘the deal’. And she said, ‘The deal’s off’. And I said, ‘What do you mean the deal’s off?’, you know, like you can imagine, it’s the worst moment of your life. And I said to her, ‘What do you mean, you can’t say the deal’s off?’, and she said, ‘Yes, the deal’s off. You were never meant to be with anybody else, you were meant to be my carer for the rest of my life and so you have broken the contract, the deal’s off’. And I remember - and I remember being - my legs were all tight, you know as a kid your legs just kind of like panic, and I said to her, ‘Mum, you can’t do this, mum, I’ve sold the house to Xavier. This conversation happened, it was only two weeks after we had exchanged for the house, you know, if you had this worry why didn’t you say it to me two weeks ago then I wouldn’t have signed to Xavier?’ ‘No’, she waited until I couldn’t get out of it, and I said, ‘I’ve sold the house cheap to Xavier, I have done all the renovations, how can you do this?’, I was beside myself crying. And she just sat there and she said, ‘Well, that’s the way it is’. You’ve got to understand between my mother and I - I love my mum but contrary to the saying that I have all the control, when you have the kind of mental issues that I have and you rely on that person to be nearby, you have no control on your life because if that person says no, you just have to accept it because you can’t say, ‘Well, I’m leaving’, because you can’t leave that person. So you have to accept whatever conditions they offer you so that you can feel like that you can live. … We got in the car and I was crying and I was sitting in the car and said, ‘You’re a thief, you’re a liar, you’re a thief, you have made me think certain things, you have made me do certain things, (indistinct) certain things. You lied to me and now you’re stealing from me’, I said, ‘How hard I have worked all these years to make this money that I have put into these houses? I worked for years where I literally didn’t see my kids, I just plonked them in a playpen so that I could fix houses so that I could give them something and you’re just taking it’. I said, ‘Mum, you’re horrible’, this is how I was talking, I was crying, I was not swerving the car. I was just so, so hurt and so distraught by what I was hearing because I thought my mum was trustworthy. My mum was my everything and how could she be doing this to me and my kids? And then I went home and she left and I went downstairs and I cried and I rang Lee and I told him everything, everything that had happened. And he said to me, ‘She screwed you over’. And I said, ‘Yeah, I know, how can she do that to me?’ And then I had to go pick up my kids, pretend everything was fine. Sorry.
Ingrid also gave evidence of a text message Xavier sent to her in October 2018 saying ‘I can’t sign contract documents or transfer until your consent orders are finalised’.[37]
[37]An extract containing some of Ingrid and Xavier’s text messages from this period was in evidence. While a text in the precise terms stated by Ingrid could not be seen, there was a text that read ‘Contract can’t be signed until court order has been issued’.
Ingrid gave further evidence as to the solicitor’s advice in the following terms:
The delay is not because of your mother?---No, no, no, the delay - the delay in being able to make any transfer about number 7 and number 5 was because that’s the advice I got from Xavier and Elizabeth when they had gone and seen Ben Waterson in May of 2018.
So who do you say told you that?---Ben Waterson, I wasn’t at that meeting, I wasn’t at that meeting and they were told to hold off, they told me that the lawyers said we need to hold off for you to do all your consent stuff before we can do any of this paperwork. And that particular stuff is reiterated in a text message which you guys have got on file from Xavier to me saying, ‘I can’t sign the contract until your consent orders are finalised’.
In a further passage of cross-examination by the judge, Ingrid addressed the question whether Elizabeth would wish to sell 5 Holyrood Street in order to fund her retirement:
Was it your understanding that the effect of the agreement which you reached with your mother on 28 April 2018 was that your mother would no longer have the ability to sell number 5 Holyrood Street because 50 per cent ownership of the property was being transferred to you. So even though she retained 50 per cent ownership until her death at which time that will pass to you, in the intervening period she would not have the right to sell the property?---To be honest, Your Honour, I never thought about her selling the property. I just understood that we would own the properties together.
Yes, but the practical point is, Ms Perronnet, and I have heard yesterday that your grandmother lived to 104?---Yes.
And having observed your mother in the witness box she looks like she’s still got a lot in the tank, if I can put it that way?---Yes, she does.
The effect of the agreement that you’re contending for is that your mother had no capacity at all to sell that property to fund her retirement when in circumstances where if she looked at her own mother, as she would be entitled to do, she would be thinking I’m potentially going to be alive for another 30 years. Now, that’s an issue that is really quite - that is the perplexing aspect of the case. Why would your mother with potentially many, many years ahead of her give up control of the one capital asset she has which has the potential to fund her retirement? Why would she hand it over to you. Because you must surely have appreciated that was the effect of the agreement that you contend for. She couldn’t sell the house?---Well, if she had wanted to sell the house I would have sold the house, that’s the truth. If she said to me, ‘Ingrid, I want to sell the house’, we would have sold the house. But I mean, that’s the truth. If I - but she never indicated to me that she wanted to sell the house to fund any kind of retirement. Joe and Elizabeth had made arrangements for her retirement with Joe.
So far the evidence in this case is that your mother’s only source of income that I have heard about is $300 a week she gets from - that’s the only evidence, I’m only acting on the evidence?---Yes, I understand.
Okay?---Yes.
And the evidence as I sit here at the moment is that your mother’s yearly income is about $15,000 a year, i.e., she’s virtually under the poverty line in terms of disposable income, all right. So it does seem fairly remarkable that she would be surrendering the ability to have any access to the capital in circumstances where on the evidence before the court, she’s got zip in terms of disposable income. As I understand your evidence is, well, if she had come to me I would have just agreed to sell the house?---Absolutely.
Yes?---Absolutely.
But do you say that you knew nothing about the plan to sell the property to Xavier?---No, I knew the plan to sell the property to Xavier, but me moving in, selling number 5 was never an issue. She never wanted to do it. She didn’t even actually want to do it that time with Xavier. She was attached to the house, she didn’t want to do it. She felt pressured by Xavier to even be considering to do it. She didn’t want to sell the house. She told me, ‘I’m coming out of this house in a coffin’.
Ingrid also gave evidence that Joe had said to Elizabeth that the property at 7 Holyrood Street was worth $2.5 million, on the basis that bank valuations were notoriously known to be ‘incredibly conservative’ and Ingrid and Lee had received a valuation from a bank of $2.3 million. Ingrid said that she and Lee put down the figure of $2.3 million in their consent orders because it was the figure they had received. She said that she recalled Elizabeth sitting on her bed reading a property magazine and saying, ‘I have been talking to Joe and he reckons your property is worth $2.5 million’.
Ingrid, who had a law degree and had undertaken articles at a major law firm, denied having known the difference between tenants in common and joint tenants.
Lee Holland
In his witness statement, Lee said that he and Ingrid began discussing their divorce and negotiating a property settlement early in 2018. He contemplated a settlement which involved selling 7 Holyrood Street and using the proceeds to pay off their existing mortgage in the amount of $1.9 million, among other things.
Lee said that in about April 2018, he and Ingrid had a further conversation about the property settlement. During that conversation, he said that Ingrid told him that Elizabeth had approached her with an offer which, if accepted, would affect the property settlement. He said that Ingrid told him that Elizabeth had offered to transfer to Ingrid half of the ownership of 5 Holyrood Street and to leave her remaining interest in the property to Ingrid in her will, in exchange for Ingrid selling 7 Holyrood Street to Xavier for $1.9 million, moving into 5 Holyrood Street and paying for and carrying out renovations and improvements to it. Lee said that Ingrid told him that, if he was happy with the deal, she would sell 7 Holyrood Street and move into and renovate 5 Holyrood Street. Lee said that he asked Ingrid what would happen to Xavier’s inheritance and Ingrid told him that Xavier would ‘get our house cheap and then he will get Mum and Joe’s beach house’.
Lee said that at the time, he understood that 7 Holyrood Street was worth approximately $2.5 to $2.6 million, based on an existing bank valuation of $2.3 million which he understood to be inherently conservative.
Lee said that, shortly after this conversation, he had a discussion with Elizabeth at 7 Holyrood Street in which Elizabeth spoke in generalities about the benefits of her proposal, including that ‘the deal’ would benefit Ingrid and Lee’s children because it would minimise the impacts of the divorce upon them and in the long run they would ‘get the house’. Lee said that he remembered feeling pressured by Elizabeth to accept ‘the deal’. Between 26 April and 28 April 2018, he consented to Ingrid agreeing to Elizabeth’s proposal because he thought that the children would be financially secure and better off.
Lee stated that in April 2019, he had a further discussion with Elizabeth at Joe’s house at Warracknabeal. He said that, during that discussion, Elizabeth told him that the reason she had pulled out of the agreement was because of Ingrid’s relationship with Frédéric and her fear that Frédéric could have a legal claim to her house.
In cross-examination, Lee was asked about the second of the above conversations. He said that Elizabeth did not clearly outline to him what the offer was that she put to Ingrid, but, without going into the specifics, outlined the benefits of why he should accept the offer. He understood that the title to 5 Holyrood Street would be transferred, but Elizabeth did not refer specifically to the transfer of a 50 per cent share in the property.
Lee said that Elizabeth had used the words ‘the deal’. As to the third conversation, in April 2019, Lee said that Elizabeth had said, ‘I’m pulling out of the deal because I don’t trust Fred’. Lee said, ‘Well, why?’ and Elizabeth responded ‘I don’t know him, he could be …’. Lee said that Elizabeth effectively alluded to the fact that Frédéric ‘could be a gold digger’.
Finally, Lee confirmed that he and Xavier ‘never discussed the deal’.
Karin Anderson
Karin Anderson gave evidence on behalf of Ingrid. She was a friend of Elizabeth. Karin said that in late October or early November 2017, Ingrid and her children, together with Elizabeth and Joe, went on a holiday to France for three months, returning in around late January 2018. She said that in March or April 2018, Elizabeth told her that she was giving her share of the beach house at Rye to Xavier. Karin said to Elizabeth that it seemed that Xavier was being ‘rewarded for not doing anything’ and asked how this was fair to Ingrid. She said that Elizabeth replied with words to the effect ‘Ingrid will come out all right in the deal’.
In cross-examination, Karin denied that, during this conversation, in response to a question concerning how living arrangements with Frédéric would work, Elizabeth had said ‘they are going to live in France. The children are excited and his kids are there’.
Karin said that, a few weeks after this conversation, Joe telephoned her as he was wont to do. During the conversation, she said that Joe discussed the Rye beach house and explained to her ‘the deal’ between Elizabeth and Ingrid, saying words to the following effect:
21 .1 ‘I’m not happy about being forced to sell my part of the Rye property to Xavier’;
21 .2 [Regarding selling to Xavier] ‘I don’t have any choice’; and
21 .3 ‘Are you aware of the deal? The deal is that Xavier is buying Ingrid’s house [7 Holyrood Street] at a discounted price and Ingrid will move in with Liz [at 5 Holyrood Street]. There’s going to be a tenants in common agreement between Liz and Ingrid. Ingrid’s name will go onto the title as owning a half share [of 5 Holyrood Street] and the remainder of the house will pass to Ingrid on Liz’s death. Ingrid will be renovating the house at her own cost’.[38]
[38]Square brackets in original.
The judge cross-examined Karin quite extensively as to her evidence of the matters in paragraphs 21.1, 21.2 and 21.3 of her witness statement as set out above.[39] In the course of this part of the evidence, the following exchange occurred:
[39]We have found it necessary to have regard to the transcript of Karin’s cross-examination, which was not in the application book, in order to understand her evidence.
Then when we go to paragraph 21 of your statement, I want to ask you how this was put together. Do I understand your evidence to be that you were asked to prepare a statement and you put something in writing and you gave it to Ingrid’s solicitors, or were you given a draft of something and were you asked to look at it and were you asked well, do you agree with that?---No, they are my words, those are my words, and also the first - the first letter I did for Ingrid, ‘To whom it may concern’, I wasn’t asked to do that.
Okay, so 21.1, 21.2, 21.3, they are your words?---Yes.
And when did you actually put the statement together, when did you put those words down on paper for the first time?---I had to do an outline of my evidence.
Yes?---And so those words were put together then, the outline was obviously an abbreviated -
That was last year, wasn’t it?---Yes, it was an abbreviated - was it last year?
I think so?---I don’t have a copy of it.
Do we have the outline of evidence, please? Let’s bring that up on the screen.
WITNESS: So the outline was an abbreviated version.
HIS HONOUR: Yes, that’s 18 November 2022. So my question to you, Ms Anderson, so this is about four years and six or seven months after the conversation set out in paragraph 21?---Paragraph 21.
So in paragraph 21 of the witness statement you have set out an account of your discussion with Joe?---Yes.
In May of 2018?---Yes.
And then in November 2022 you have put together an outline?---Yes.
Is that the first time between May of 2018 and November 2022 that you had to turn your mind to the specifics of that discussion?---No, my mind turned to that discussion when I first did the letter for Ingrid when she rang me in a state to say that, you know, this has blown up, and she was in a shocking state. And I then did a letter to her, ‘To whom it may concern’, and that’s when I put - I didn’t put it probably in the detail that I have given you, but something along those lines.
What was the date of that?---I honestly can’t tell you now.
Do you still have the letter?---It’s on my computer, yes.
Well, we will make arrangements for that to be produced, all right?---Okay, not a problem.
Thank you. You’re able to do that?---Yes.
Sorry, when do you think you put that together, when do you think you did that?---On the day that Ingrid rang me.
Sorry, I’m asking you when was that?---As soon as she hung up I sort of sat down and thought about it.
Sorry, I’m not making myself clear. Approximately what was the date of that discussion with Ingrid? Was it 2019, 2018, 2020?---I don’t like making incorrect statements, I would prefer not to put a date on it until I can see what I have actually written on my computer.
All right, so you think there is a date?---Well, undoubtedly because when you save a document it gives you the date.
All right. Well, that document may or may not recall the detail of this discussion, do you think it does recall the detail?---No, not in the detail that I have given you.
Yes, well, I think what I’m driving at, if I can use that term, Ms Anderson, is that you have given verbatim, very precise recollection of a discussion which has occurred years ago, all right, years before your outline of evidence, and some people have perfect recollection. That is, I won’t say remarkable but it is a particularly precise detailed account of a discussion which has taken place years prior to you - it has been taken place four years and five months prior to your preparation of your outline of evidence which raises a question as to unless you have an outstanding recall, how you can do that?---I don’t -
Sorry, yes, Mr Moore?
MR MOORE: This really is engaging in cross-examination of the witness, Your Honour, I mean, Elizabeth’s got counsel here to have done all this, I mean, with respect, you’re jumping into the ring, Your Honour.
HIS HONOUR: All right. Well, do you object to the, ‘To whom it may concern’, letter being produced?
MR MOORE: No.
HIS HONOUR: You accept that should be produced.
MR MOORE: That’s part of the evidence.
HIS HONOUR: All right. I won’t go any further, Mr Moore.
No point is now taken as to the judge ‘jumping into the ring’. The judge referred to the ‘to whom it may concern’ document in his reasons and preferred Joe’s contrary evidence.[40]
[40]See [42]–[43] above.
Karin also gave evidence of the deal being ‘off’. She said that, in early January 2019, Elizabeth telephoned her from France and told her that Ingrid had met Frédéric and that she was happy. Karin said that in early February 2019, shortly after Elizabeth returned from France, Elizabeth phoned her and sounded very angry. During the conversation, Elizabeth told her that ‘the boyfriend is moving in’ and that ‘if the relationship breaks up’ she could ‘lose the house’. She said that Elizabeth said words to the effect ‘the deal is off because Ingrid met someone’ and ‘the deal’s off’. Karin said that at some point in the conversation, she heard Ingrid’s voice in the background.
Elizabeth Goedemans
In her witness statement, Elizabeth said that she had been the sole registered proprietor of 5 Holyrood Street since 1986 and had been living there since 1999. Sarah had moved into the house in about 2005. From that time onwards, Xavier paid most of the utility bills and after 2007 he paid all such bills as well as the council rates. Elizabeth said that she continued to rely on assistance from Xavier to pay the expenses and outgoings for 5 Holyrood Street. She said that, over the years, she and Xavier discussed Xavier and Sarah buying the property, but they were not in a financial position to do so.
A purchase became possible in 2017 or 2018, when Xavier sold part of his interest in a business he had founded. He proposed to Elizabeth that he and Sarah would purchase the property and Elizabeth and Joe would move into the property in Riversdale Road. Elizabeth agreed to the proposal. Elizabeth said that the arrangement would provide her with a sum of money to fund her retirement from the proceeds of selling 5 Holyrood Street. She said that she did not discuss any of these arrangements with Ingrid.
Elizabeth said that in November 2017, she and Joe, together with Ingrid and Ingrid’s children, travelled to France for a holiday. They returned at the end of January 2018. She said that at the time, Xavier told her that he was about to receive funds from the sale of his business and that he and Sarah were ready to proceed with the purchase of 5 Holyrood Street. Elizabeth said that she told Ingrid in February or March 2018 that she was selling the property to Xavier and Sarah. A few days later, Ingrid told her that she and Lee were going to divorce and that she would have to sell 7 Holyrood Street.
Elizabeth gave evidence that, around that time, she, Ingrid and Xavier met in the kitchen at 5 Holyrood Street where the terms upon which Ingrid and her children would move into that property were discussed. She gave the following evidence (again without descending to details of who said what):
The arrangement agreed to was that:
(a) Ingrid and her children would move into and live at No 5, once Xavier and his family had vacated;
(b) Ingrid would pay all of the outgoings that Xavier had been paying while living at No 5, including utility bills, council rates, insurances and essential maintenance items;
(c) Ingrid did not have to pay any rent or board while living at No 5 (as had been the case with Xavier);
(d) there was no set term for the duration of Ingrid’s occupation discussed, but it was never discussed that it was indefinite. My expectation was that once Ingrid’s property settlement with Lee was finalised and she had obtained employment, as she foreshadowed, she would then find her own accommodation;
(e) if Ingrid wanted to undertake changes to No 5 to make it more comfortable or to her liking, she could, as long as she sought my consent first (as Xavier had done);
(f) Ingrid wanted to live, with her children and I, as a single family unit and Ingrid wanted to remove the internal door dividing the downstairs areas from the upstairs area, which I agreed to; and
(g) I told Ingrid that depending on how this arrangement went, I would have to move downstairs and occupy the main bedroom if and when I could no longer navigate the stairs.
Elizabeth said that in May 2018, Ingrid and her children moved into 5 Holyrood Street and Xavier and his family moved into 7 Holyrood Street.
Elizabeth stated that, after Ingrid moved into 5 Holyrood Street, Elizabeth began to feel unwell. She had a number of medical appointments in June and July 2018. She said that Ingrid asked her what would happen to her if she died and she responded ‘I will leave you a little more in my will to help you’. Elizabeth said that, the next day, Ingrid said to her words to the effect ‘that won’t work because Sandra [Elizabeth’s eldest daughter] will contest the will. I need to be put on title’. Elizabeth said that she replied, saying ‘no, I don’t want to do that’.
Elizabeth said that, in November 2018, she and Joe, together with Ingrid and her children, went to France for a holiday. During the trip, Ingrid commenced a relationship with Frédéric, who was living in the town where they were staying. The travellers returned to Australia in January 2019. Elizabeth said that in January or February 2019, Ingrid told her that she was thinking of moving to France with her children because she had fallen in love with Frédéric and he had two children in France. She said that Ingrid told her that she had told Lee that the children really wanted to stay in France.
Elizabeth said, when Ingrid returned from her next trip to France in April 2019, she told Elizabeth that she had spoken to the owner of the property that Frédéric had been renting about buying the property. Elizabeth said that, some time later, after Frédéric had arrived in Australia in 2020, she asked Ingrid when they were moving to France. Ingrid responded ‘no, we’ve changed our mind, he likes it here’.
Elizabeth stated that, in February 2019, Ingrid asked for her help cleaning the house she owned at Rye so that she could rent it out. While they were there, Karin phoned Elizabeth and they had a conversation to the following effect:
[Karin]: How’s it going there? (which [Elizabeth] understood to mean how was the cleaning going at Rye).
[Elizabeth]: It’s hot and I’ve been cleaning outside. Ingrid is on the phone upstairs with Frédéric, I think it is serious.
[Karin]: How’s it going to work with him [Frédéric] living in your house?
[Elizabeth]: Oh no, they are going to live in France – the children (meaning Ingrid’s children) are excited and his kids are there.
[Karin]: Oh (she seemed surprised).
Elizabeth said that, during the drive home, Ingrid said words to the effect ‘why did you tell Karin I was going to France and was not going to live with you anymore?’ and Elizabeth responded ‘Because you told me you were going to live in France’. Elizabeth said that Ingrid screamed at her in the car on the way home that she was a ‘thief’ and that she had spent money on Elizabeth’s house and should not have to wait ‘until you die’ to get anything.
Much of Elizabeth’s cross-examination consisted of her denying matters that were put to her, including that Ingrid told her she had separated from Lee soon after it happened in September 2017, that Ingrid told her that she and Lee owed $1.9 million, that Joe told her that 7 Holyrood Street was worth ‘$2 million plus’, that she told Ingrid that she intended to transfer 5 Holyrood Street to Xavier and the Rye property to Ingrid, and that she had a similar conversation with Karin.
Elizabeth specifically denied telling Ingrid that she had been discussing 7 Holyrood Street with Xavier, and proposing to Ingrid that she would transfer half her interest in 5 Holyrood Street to her now and the remaining interest on her death, in exchange for Ingrid selling 7 Holyrood Street to Xavier and Sarah for $1.9 million.
Elizabeth also denied the conversation Karin described in March or April 2018 in which Elizabeth had allegedly told Karin that Ingrid would ‘come out all right in the deal’.
Elizabeth further denied that she had telephoned Karin in late January or early February 2019 and told her that ‘the boyfriend’ was moving in and that she was concerned that if he did so and their relationship broke up, she might lose the house. In relation to the conversation with Karin while she was cleaning up the house at Rye, Elizabeth said that Karin had said, ‘How’s that arrangement going to work when he comes over here in a living arrangement in your place?’. Elizabeth said that she said, ‘No, no, no, they are going to France’. She said that was the end of the conversation. Elizabeth said that Ingrid confronted her about the conversation she had with Karin in the car on the way home. She denied saying ‘The deal’s off, you were never supposed to be with someone, you were supposed to be with me. Now that you’re with someone you have broken the contract, the deal is off’, or anything like it.
The judge then asked Elizabeth what Ingrid was upset and crying about:
What did you understand had occurred to make her upset and crying?---It’s because she said she heard me say to Karin that, ‘Why did you say to Karin that I’m not going to be living with you anymore and that I’m going to France?’, and I said, ‘Well, just because that’s what you said to me’. I couldn’t understand where this blow up suddenly came from. And she just started driving real fast and she started yelling and, ‘I can’t trust you, I hate you, you’re a thief and I never want to see you again’, and the speed she was going at, I thought we were going to be killed and I thought she was going to take out the car along with us, it was horrible.
When you talk about her going to France, so you say you said to Karin Anderson that Ingrid and the children are going to France?---Yes, yes.
Going on holiday or moving, or going to actually move permanently?
---Permanently, because when she came back with us she was very distraught, she loved him deeply and she was distraught that he was not with us. And she just said she wanted to go back to France and the children wanted to go back because they got along with his children. They all seemed to get along really well. And then she told me that Lee had been offered a job at the Bahamas, Bermuda, I’m not sure, somewhere there. And he said to her, ‘You can go to France, I will take that job’, and she actually said to me she was laughing, she said, ‘He’s working right into my hands, that’s exactly what I want’. So when I said to Karin, ‘No, no, no, they are going to France, they are happy’, I just related what she had told me. And that’s why I believed she told me about that so I believed she was going.Permanently?---Permanently, yes, yes. I felt this was a serious relationship and Your Honour, I was really very happy for her, honestly. I know there were other people on the side that were getting hurt, but for so many years she had been so frightened, so anxious that she couldn’t even take the children to school. I had to go with her, everywhere she went I had to hold the children to go to the doctors, I had to be there for the glasses test because she couldn’t go and see the optometrist, it was really very sad. And I was so excited because now that she also had a broken marriage on top of it all, where was it all going to end? I don’t live forever, you know, so I was really very happy about the whole relationship. And I said just in innocence to Karin, ‘They are going to go overseas, they are going to live over there’, I was happy, I was sort of thinking that will be nice, sometimes we can go on holidays and - I had accepted the whole situation, and I didn’t understand why in the car she got so angry because I had said that. I don’t.
The judge later asked Elizabeth about her understanding as to Ingrid’s intentions at this time:
You have given evidence that you told Karin Anderson - and I think she’s given evidence of a discussion on 14 February, Valentine’s Day 2019?---That’s that discussion we’re talking about, that’s right.
You have given evidence that you said to Karin Anderson on that day, as I understand your evidence?---Yes.
That Ingrid was going to France permanently with the children?---No, no, no, she was going on her own.
Well, I’m sorry, I have misunderstood your evidence?---Sorry.
Did you have any understanding that Ingrid at any point in time, her intention was to go to France permanently with the children?---When we had the discussion, Your Honour, with Karin that I said, ‘They are going to live over there’. I still wasn’t told that she was going to go on her own to meet him. She just said to me that Lee was going to get this job and he would only take it if she would move to France with the children. So on that basis I said, ‘They are moving to France’.
Permanently?---Yes, yes, it was a permanent relationship.
Just to be clear, this is mid-February 2019?---Right when we came back.
So mid-February 2019 you understood that Ingrid was going permanently?
---Yes.With the children?---Yes, at some stage with the children, yes, they were going back and it was like early February, as soon as we came back she could not get over the separation with him. And then she said it was going to work because Lee was going to find a job there and they were going. So that’s what I believed to be the truth and that’s why I said to Karin, ‘They are going to France’.
Elizabeth specifically denied that she had a conversation with Lee at Warracknabeal around Easter 2019 in which she told Lee that the reason she pulled out of the agreement with Ingrid was because of the relationship with Frédéric and her fear that Frédéric could have a legal claim on the house.
Joseph Nowicki (‘Joe’)
Joe stated in his witness statement that he had worked as a certified practising valuer for 57 years but was now retired. He stated that in about September 2018, Ingrid asked him what he thought 7 Holyrood Street was worth. He recalled telling her that he thought it could be worth up to $2 million. In relation to the alleged agreement the subject of the present matter, Joe said that Elizabeth had never discussed with him any arrangement by which she would give Ingrid an interest in 5 Holyrood Street in exchange for selling 7 Holyrood Street to Xavier at an undervalue. Nor had Xavier, Sarah, Ingrid or Lee ever discussed any such arrangement with him.
Joe said that 5 Holyrood Street was Elizabeth’s only asset and that, from his discussions with her over the years, it was his understanding that she wished to leave an interest in 5 Holyrood Street to each of her three children (Sandra, Ingrid and Xavier) in her will, subject to a life interest allowing Joe to live in the property. Joe said that he understood from his discussions with Elizabeth that one day she would sell 5 Holyrood Street, downsize, and use the money left over to fund her retirement.
As noted earlier, in cross-examination, it was put to Joe that he had said to Karin in May 2018, ‘Are you aware of the deal? The deal is that Xavier is buying Ingrid’s house, 7 Holyrood Street, at a discounted price and Ingrid will move in with Elizabeth at 5 Holyrood Street’. Joe said that this was ‘a lie’. He also said it was a lie that he had said to Karin that there was going to be ‘a tenants in common agreement between Elizabeth and Ingrid[, that] Ingrid’s name will go onto the title as owning a half share and the remainder of the house will pass to Ingrid on Elizabeth’s death[, and that] Ingrid will be renovating the house at her own cost’.
In answer to questions from the judge, Joe said that he understood that, if Elizabeth sold 5 Holyrood Street to raise money to fund her retirement, she would then have a right to move into the property at Riversdale Road and live there rent-free, in return for having given her share of the Rye property owned by her and Joe to Xavier.
Xavier Perronnet
In his witness statement, Xavier described the history of the various properties owned within the family. Xavier said that in mid-February 2018, he and Sarah were in a position to buy 5 Holyrood Street. Shortly after that time, Ingrid told him that she and Lee were getting a divorce.
Xavier described a meeting at 5 Holyrood Street between himself, Elizabeth and Ingrid. He said that they sat at the kitchen table and they talked about Elizabeth staying at 5 Holyrood Street, rather than selling it to Xavier and Sarah, and letting Ingrid move in. He said that Elizabeth said, ‘Ingrid can live here rent-free but pay for all the bills’. Xavier said he then asked Ingrid how she was going to pay the bills. She responded with words to the effect, ‘I’m going to get a job’.
Xavier said that, a few weeks after the meeting in the kitchen, in approximately March 2018, he was at Ingrid’s house (7 Holyrood Street) and she said to him that she and Lee had $1.9 million of debt secured against the two properties (7 Holyrood Street and the beach house at Rye). He said that she said words to the effect, ‘If I can get out of having to give anything to Lee I can sell [7 Holyrood Street] and keep Rye’.
Xavier said that on 26 April 2018, he spoke to Ingrid by phone and she asked if he would consider purchasing 7 Holyrood Street. He said that he declined the offer. However, Xavier told Sarah that he was worried about Elizabeth and the situation they would be leaving her in if they were to ‘move on’. Xavier said that Sarah eventually agreed for the two of them to purchase 7 Holyrood Street from Ingrid.
The following day, still in late April or early May 2018, Xavier went to see Ingrid at 7 Holyrood Street and told her that he and Sarah would be willing to purchase the property. He said that he asked Ingrid about the price she wanted, and she said that she would like to clear the ‘1.9 of debt’ she had on the two properties. Xavier said that he agreed to the sale, but said ‘let’s confirm final price with a valuation when you can move forward with the sale’, to which Ingrid agreed. Xavier said that they moved house, and Ingrid did likewise, in anticipation of the sale.
Xavier explained that, in June 2018, Elizabeth had attended hospital with cardiac symptoms. Following that event, Elizabeth attended a series of further medical appointments throughout June and July.[41]
[41]The judge referred to Elizabeth’s hospitalisation at [38] of his reasons.
Xavier said that, in October 2018, Ingrid was about to go on a long holiday to France and she called him and said she was going to make an appointment for them to see her solicitor to ‘get the ball rolling on the sale’. He said that, on the morning of the appointment, Ingrid called him and reminded him that they had an appointment with her solicitor ‘to sign everything up’. He said that he told her that they did not have a valuation yet. Xavier contacted Ingrid’s solicitor (Tracy Jackson) to ask what the purpose of the meeting was. Tracy said to him words to the effect, ‘Ingrid said you were coming in to sign the contract’. Xavier said that he told Tracy that he had not seen a copy of the contract, and that they still needed a valuation in order to determine the price. He said that as far as he knew, there had been no court order about Ingrid’s financial settlement with Lee.
Xavier said that he had a telephone conversation with Ingrid in about January 2019 in which she told him that she had commenced a relationship with someone in the town where they were staying in France. He said that Ingrid had, on many occasions from late 2017 onwards, told him that she wanted to move to France with her children.
Xavier said that Ingrid returned from the holiday in France at the beginning of February 2019. In mid-February he received a telephone call from Elizabeth, who was in the car with Ingrid driving. He could hear Ingrid screaming sporadically, swearing and yelling incomprehensibly. On the following day, when Ingrid came to the house, she yelled at Xavier and went into the street in a rage. Xavier said he followed her around the block while she continued to shout. He said that she told him that he had ‘underpaid’ for 7 Holyrood Street by $600,000. Xavier said that there had never been any suggestion that he had paid less than market value for the property. He had obtained a valuation of $1.9 million and given a copy to Ingrid.
Xavier said that, after his separation from Ingrid, he and Sarah remained on good terms with Lee. He had frequent conversations with Lee. Xavier said that at no time when meeting in person or during telephone calls did Lee refer to any agreement involving Elizabeth transferring any interest in 5 Holyrood Street to Ingrid or 7 Holyrood Street being transferred to Sarah and Xavier for less than market value.
In cross-examination, Xavier denied that Elizabeth had told him that Joe thought 7 Holyrood Street was worth in excess of $2 million. He said that Elizabeth ‘didn’t say anything of the sort’. He also denied that she had told him that it would be a good idea for him to buy 7 Holyrood Street. He was aware by April 2018 from discussions with Ingrid that her total debt was $1.9 million. He denied that it was proposed by Elizabeth that he buy 7 Holyrood Street for $1.9 million or for him to buy anything. Xavier denied having a conversation around 26 or 27 April 2018 in which Elizabeth told him of the proposal that she was going to put to Ingrid, namely, that he buy 7 Holyrood Street at a discounted price of $1.9 million, that Ingrid was going to get a half interest in the property now and a half interest on Elizabeth’s death, and that Ingrid would renovate the property. He said that a conversation with Ingrid on 27 April in relation to that proposal ‘did not happen’.
Applicant’s submissions
Ingrid contended that the judge failed to have regard to key evidence, failed to evaluate important evidence correctly and mischaracterised and placed undue weight on certain evidence. As a result, the judge erred by failing to find that the agreement of April 2018 between Ingrid and Elizabeth was made as Ingrid had alleged.
First, it was submitted that the judge had failed to have regard to four pieces of significant evidence from Lee and Ingrid concerning conversations taking place after the pleaded agreement:
(a)Lee’s evidence that in about April 2018, he had a conversation with Ingrid at 7 Holyrood Street in which Ingrid informed Lee of the terms of the agreement and asked for his consent to it. Lee was not challenged on this evidence.
(b)Ingrid’s evidence of that conversation, which was consistent with the evidence given by Lee. Ingrid was not challenged on that evidence either.
(c)Lee’s evidence of a conversation with Elizabeth a few days after his discussion with Ingrid in April 2018, in which Elizabeth urged him to accept the deal and said, without going into specifics, that the children would ‘get the house’ and have the benefit of their aunt and uncle living next door. Lee’s evidence was said to be consistent with Elizabeth and Ingrid having reached an agreement a few days earlier.[42]
[42]See the summary of Lee’s evidence above at [69]–[71].
Finally, Lee gave evidence that in April 2019 he had a conversation with Elizabeth at Warracknabeal in which Elizabeth explained that she pulled out of the agreement due to her fear that Ingrid’s new partner could have a legal claim to the property and might be a ‘gold digger’. This was two months after Karin said that Elizabeth had told her that she was worried that she could lose the house if Ingrid’s relationship with Frédéric failed. Ingrid submitted that the judge made no finding rejecting the evidence of Karin to that effect.
In summary, Ingrid said that there was unchallenged evidence that she had approached Lee with the proposal as she alleged, and that he gave his consent to the deal. It was submitted that this provided substantial contemporaneous corroborative evidence of the existence of the agreement. Ingrid observed that the judge did not refer to Lee’s evidence at all in his reasons for judgment.
In respect of the alleged failure of the judge to properly evaluate important evidence, Ingrid submitted that the judge failed to consider the fact that, if the existing will was not changed, then upon Elizabeth’s death the result would be that Xavier would be in possession of 5 Holyrood Street as well as the Rye beach house, in respect of which Elizabeth had agreed to transfer her half share to Xavier for no payment in return for the right for Elizabeth and Joe to live rent-free at the Riversdale Road property. In contrast, Ingrid would be in possession of neither property. It was submitted that this constituted a very significant departure from Elizabeth’s original testamentary intentions. As a result, the terms of the extant will were irrelevant to the critical question whether the agreement was entered into as alleged.
Ingrid submitted that it is well established that, when no written contract exists, post-contractual conduct is admissible on the question whether a contract was in fact formed.[43] Evidence of post-contractual conduct is also admissible on the question of what were the terms of the contract.[44] However, in this case, Ingrid submitted that the judge relied on pre-contractual conduct. It was said that the judge had relied on a will made 13 years before the alleged agreement, in significantly different surrounding circumstances, which was of no assistance in deciding whether Ingrid and Elizabeth objectively entered into the alleged agreement.
[43]Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 [77], [84] (Osborn, Santamaria and Kaye JJA).
[44]Regreen Asset Holdings Pty Ltd v Castricum Brothers Pty Ltd [2015] VSCA 286 [134] (Warren CJ, Kyrou and McLeish JJA) (‘Regreen’); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [17]–[27] (Spigelman CJ) (‘County Securities’).
Ingrid also submitted that the judge had failed to consider aspects of the communications between her and her friends which were consistent with the existence of the alleged agreement and incompatible with its non-existence. It was submitted that the expression ‘buying’ or ‘bought’ was consistent with the terms of the pleaded agreement because Ingrid was to take ownership of 5 Holyrood Street in return for selling 7 Holyrood Street for $1.9 million and carrying out renovations to number 5. It was noted that Ingrid was not cross-examined on the messages or what she meant by ‘buy’ in this context. It was said that as a result, little weight could be given to the perceived inconsistency. Ingrid also submitted that the judge had failed to consider the messages in their context, which was said to be consistent with the agreement contended for by her. Among other things, ‘buy’ was inconsistent with an agreement that only involved Ingrid moving in to 5 Holyrood Street, without any right of ownership.
Ingrid submitted that the 29 May 2019 letter was more consistent with the pleaded agreement than it was inconsistent. The letter referred to the sale of 7 Holyrood Street to Xavier for an undervalue, the conduct of renovations to 5 Holyrood Street, Ingrid moving in to number 5 and Ingrid being entered on the title of number 5, as to a half-interest. The only aspect of the pleaded agreement that was not referred to in the letter was said to be the transfer of the remaining half interest in 5 Holyrood Street to Ingrid upon Elizabeth’s death.
Similarly, Ingrid submitted that the letter of 1 December 2020 from her solicitors was overwhelmingly consistent with the alleged agreement. It referred to the sale of 7 Holyrood Street to Xavier for an undervalue, the undertaking of renovations to 5 Holyrood Street by Ingrid, Ingrid acquiring one half of 5 Holyrood Street and being registered on the title, and Elizabeth being entitled to live at that property for the remainder of her life, and upon her death, her half share passing to Ingrid. It was also submitted that there was no inconsistency with Ingrid’s evidence that any documentation of the agreement was to await the finalisation of her divorce. As to the reference to joint ownership, the letter was written by Ingrid’s solicitors and she had a limited understanding of property law concepts.
Ingrid further submitted that the judge had conducted no assessment of, and failed to recognise the importance of, subsequent conduct on her part. Specifically, she moved herself and her children into 5 Holyrood Street in May 2018 and undertook renovations from that time. That conduct was said to be unequivocal and referable to the alleged agreement.[45]
[45]Pipikos v Trayans (2018) 265 CLR 522, 556–7 [99] (Nettle and Gordon JJ).
Ingrid also submitted that the judge had failed to have regard to the fact that 7 Holyrood Street was sold for an undervalue consistent with part performance of the alleged agreement. Reliance was placed on a valuation of about $2.235 million which a home finance provider had sent to Ingrid on 4 November 2016. It was submitted that the documentary record showed that when Ingrid agreed to sell her home to Xavier for $1.9 million, she had been told that she was selling it for considerably less than its value. That fact, along with the conduct of Ingrid selling her home to Xavier (through Sarah) for $1.9 million, could only be consistent with, and constituted part performance of, the alleged agreement.
Ingrid submitted that the judge had mischaracterised her evidence about her failure to seek amendment to Elizabeth’s will. It was submitted that Ingrid’s evidence was to the effect that she relied upon what Elizabeth and Xavier had said to her following their meeting with the solicitor, namely that the formal transfer of 5 Holyrood Street or any other documentation could not occur until the divorce had been finalised. The issue was said to be whether or not Elizabeth or Xavier said the things alleged by Ingrid, which amounted to her explanation for not having taken steps regarding the will, not whether the matters that were asserted were true. This meant that the judge’s reliance on failure to put Ingrid’s account of the advice to Elizabeth and Xavier, and his drawing of an inference that the evidence of Ingrid’s solicitor would not have assisted Ingrid’s case, were in error.
In any event, Ingrid submitted, leaving aside Elizabeth’s trip to France and her hospitalisation, there was only about six months in which Elizabeth could have changed her will, before she repudiated the agreement.
Ingrid submitted that the judge failed to consider a text message Xavier sent to her in October 2018 regarding the sale of 7 Holyrood Street, which was said to be consistent with her evidence as to what she had been told earlier by Elizabeth and Xavier.[46]
[46]See [63] above.
Finally, Ingrid submitted that the judge had been wrong to find that the deal she alleged lacked rationality from Elizabeth’s point of view, because she would not be able to sell 5 Holyrood Street to fund her retirement. Elizabeth did not give evidence to that effect. The finding was said to ignore the context, which was a relationship between mother and daughter in circumstances where the daughter was in need as a result of dealing with a divorce, not having worked for many years and having two young children.
Respondent’s submissions
Elizabeth submitted that an appellate court is entitled to assume that a mere failure to refer to evidence, in a case where there has been no delay in delivering judgment, does not mean that the evidence has been overlooked.[47] Moreover, a trial judge does not need to submit the material before the court to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments.[48]
[47]Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 33 [72] (Carr, Emmett and Gyles JJ).
[48]Strbak v Newton [1989] NSWCA 202, 3 (Samuels JA, Gleeson CJ agreeing at 4, Priestley JA agreeing at 4).
As to the conversation between Ingrid and Lee in April 2018, Elizabeth submitted that Lee’s evidence as to what Ingrid told him about that conversation was hearsay. In any event, the evidence went no further than Ingrid reciting to Lee her version of events with respect to the deal. The conversation was not known or disclosed to Elizabeth, such that it fell outside the principles for admitting post-contractual conduct on the question of whether a contract was in fact formed.[49]
[49]Elizabeth submitted that the authorities concerned with the admissibility of post-contractual conduct are concerned with a relatively narrow scope of contract, referring to Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 [124] (Basten JA, Gleeson JA agreeing at [134]); Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 [105]; and Feldman v GNM Australia Ltd [2017] NSWCA 107 [90]–[91] (Beazley P, McColl JA agreeing at [112], Macfarlan JA agreeing at [127]).
Next, Elizabeth submitted that Lee’s evidence of a conversation with her, shortly after his conversation with Ingrid, was so vague that it could not assist on the question whether a deal was reached or what were its terms. Lee had accepted that Elizabeth did not tell him that she was transferring a 50 per cent share at 5 Holyrood Street to Ingrid, but simply referred to ‘the deal’. Lee had said that Elizabeth described the benefit of the family unit staying together and Ingrid fixing up 5 Holyrood Street, but these matters went no further than an agreement that Ingrid could move into 5 Holyrood Street and undertake renovations, subject to Elizabeth’s consent.
Elizabeth submitted that the judge had relied not only on the oral evidence but on documents authored by Ingrid, valuation evidence, and the relationship of the alleged agreement with Elizabeth’s testamentary intentions as recorded in her current will. It was submitted that the judge had carefully considered all this evidence and was correct to reject Ingrid’s evidence in all the circumstances.
Elizabeth submitted that the judge had correctly identified two steps that needed to be taken to give effect to the alleged deal, namely an amendment to the title of 5 Holyrood Street and an amendment to Elizabeth’s will. Neither occurred. The fact that the 2005 will remained operative was not ‘irrelevant’. The alleged deal represented a significant departure from Elizabeth’s current testamentary intentions. The judge was also correct, Elizabeth submitted, to observe that it was inherently unlikely that she would give up the ability to raise funds for her retirement by giving 5 Holyrood Street to Ingrid.
In respect of Ingrid’s messages to friends, Elizabeth submitted that Ingrid’s trial counsel had accepted that three of the text messages were ‘completely inconsistent’ with Ingrid’s evidence. They referred to Ingrid ‘buying’ 5 Holyrood Street. On no view did the alleged deal involve Ingrid buying the property. The fourth text message was markedly inconsistent with the others and the judge needed to give no further explanation for attaching little weight to it.
Elizabeth also submitted that the judge had correctly identified three significant inconsistencies between the 29 May 2019 letter and Ingrid’s pleaded case. The letter did not mention the remaining 50 per cent interest being transferred to Ingrid on Elizabeth’s death, or refer to Ingrid carrying out renovations. The pleaded case did not mention Elizabeth offering a $1 million inheritance to each of Ingrid and Xavier.
In relation to the 1 December 2020 solicitors’ letter, Elizabeth submitted that the judge correctly identified the inconsistency between the reference to joint proprietorship in the letter, and Ingrid’s evidence that Elizabeth’s will needed to be changed to enable the transfer of the reaming 50 per cent interest when Elizabeth died. On 7 August 2020, Ingrid had said in an email to Joe that she claimed an interest as a tenant in common.[50]
[50]See [40] above.
Elizabeth submitted that there was no evidence of her or Xavier having any basis for regarding $1.9 million as an undervalue of 7 Holyrood Street. There was no evidence that she or Xavier knew of the financier’s valuation of $2.23 million in November 2016, or that Ingrid relied on it at the time of the alleged deal. The figure of $1.9 million was obtained from a valuation Xavier commissioned, on Joe’s recommendation, for the purposes of stamp duty upon the transfer of the property.
Finally, Elizabeth submitted that the judge was correct to reject Ingrid’s evidence about why she did not take steps to have Elizabeth amend her will. There was no allegation that Xavier and Elizabeth relayed to Ingrid anything other than the solicitor’s advice, and neither of them was cross-examined on the point.
Legal principles governing the proposed appeal
The Court of Appeal has jurisdiction to hear and determine ‘all appeals from the Trial Division constituted by a Judge of the Court’.[51]
[51]Supreme Court Act 1986, s 10(1)(a).
That conferral of jurisdiction is not the source of the right to appeal. In order to determine if a party has a right to appeal, it is necessary to identify whether any legislation confers that right to appeal, or whether the Rules of the Supreme Court do so. The scope of the right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right.[52] The scope of the right to appeal from a decision of a judge of the Trial Division is generally determined by reference to s 17(2) of the Supreme Court Act 1986.[53]
[52]O’Bryan v Lindholm (2024) 74 VR 496, 509–10 [66] (Kennedy, Walker and Macaulay JJA) (‘O’Bryan’) citing Moorabbin Transit Pty Ltd v Bekhit (2016) 50 VR 563, 572 [37] (Tate, Ferguson and McLeish JJA).
[53]O’Bryan (2024) 74 VR 496, 510 [68] (Kennedy, Walker and Macaulay JJA); Re Thorpe [2024] VSCA 172 [9] (McLeish JA).
Section 17(2) provides that, unless otherwise expressly provided by any Act, ‘an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court’.
The powers of the Court on such an appeal are provided for in r 64.36 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), which relevantly provides:
(2) The Court of Appeal has power—
(a) to draw inferences of fact;
(b)to give any judgment and make any order which ought to have been given or made; and
(c)to make any further or other order as the case may require.
(3)Subject to Rule 64.13, the Court of Appeal has power to receive further evidence upon questions of fact—
(a)by oral examination in court;
(b)by affidavit; or
(c)by deposition taken before an examiner.
(4)Where any question arises as to any matter occurring in the proceeding in the court or tribunal that made the decision the subject of the application for leave to appeal or appeal, the Court of Appeal may have regard to—
(a) transcript of that proceeding; and
(b) any other evidence and any other materials as it thinks fit.
Previous versions of this rule described an appeal to the Full Court as being ‘by way of rehearing’. It is not clear why this language was dropped.[54] However, the provision for the consideration of further evidence is linked to the concept of an appeal by rehearing.[55] That therefore remains the nature of the present appeal.
[54]Freeman v Rabinov [1981] VR 539, 547–8 (Lush J, Murray J agreeing at 550 and King J agreeing at 550).
[55]Ibid 548, citing Re Chennell; Jones v Chennell (1878) 8 Ch D 492, 505 (Jessel MR, Cotton and Thesiger LJJ agreeing at 506).
In Fox v Percy,[56] Gleeson CJ, Gummow and Kirby JJ said, with reference to appeals from the District Court of New South Wales to the Court of Appeal of that State (which are by way of rehearing, pursuant to Supreme Court Act 1970 (NSW) s 75A):
The nature of the ‘rehearing’ provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[57]
[56](2003) 214 CLR 118.
[57]Ibid 125 [22].
Importantly for present purposes, their Honours continued:
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[58]
[58]Ibid 125–6 [23] (citations omitted).
The task of the Court in conducting an appellate review of a trial judge’s decision was described by the High Court in Robinson Helicopter in the following terms:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[59]
[59](2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ) (citations omitted).
In Lee v Lee, the Court elaborated:
Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.[60]
[60](2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ, Kiefel CJ agreeing at 134 [1]) (citations omitted).
The judge in the present case made no express findings as to the impression made on him by any of the witnesses, and no general findings as to the credibility or reliability of any witness. But the observations made in Fox v Percy, set out above, show that it does not necessarily follow that the judge’s factual findings were unaffected by any impressions of that kind.
Consideration of the evidence
With this in mind, we turn to the evidence.
Evidence of participants at alternative meetings
The central issue in the case was whether Elizabeth and Ingrid made an agreement in the family room at 7 Holyrood Street in April 2018 in the terms Ingrid alleged. The evidence in chief of Ingrid is set out at [51] above. On Ingrid’s account, Xavier was not present during the conversation. In cross-examination, Elizabeth denied Ingrid’s account.
Elizabeth’s evidence of a meeting in the kitchen at 5 Holyrood Street around this time involved herself, Ingrid and Xavier. She said that the terms upon which Ingrid and her children would move into that property were discussed. Her evidence in chief is set out at [85] above. In cross-examination, Ingrid denied being party to any conversation between Elizabeth and Xavier in relation to her living at 5 Holyrood Street.
Xavier also described a meeting in the kitchen at 5 Holyrood Street between himself, Elizabeth and Ingrid, seemingly around late February or March 2018. He said that they talked about Elizabeth staying at 5 Holyrood Street, rather than selling it to Xavier and Sarah, and letting Ingrid move in. Xavier said that Elizabeth said, ‘Ingrid can live here rent-free but pay for all the bills’. Xavier said he then asked Ingrid how she was going to pay the bills. She responded with words to the effect, ‘I’m going to get a job’. Ingrid said that this conversation did not happen.
In cross-examination, Xavier denied having a conversation around 26 or 27 April 2018 in which Elizabeth told him of the proposal that she was going to put to Ingrid, namely, that he buy 7 Holyrood Street at a discounted price of $1.9 million, that Ingrid was going to get a half interest in the property now and the remaining half interest on Elizabeth’s death, and that Ingrid would renovate the property. He said that a conversation with Ingrid on 27 April in relation to that proposal ‘did not happen’.
The net effect of this evidence is that Elizabeth denied Ingrid’s account of an agreement made in the family room at 7 Holyrood Street, and Ingrid denied Elizabeth’s account of an agreement made in the kitchen at 5 Holyrood Street. Xavier described a meeting in the latter location in terms similar to Elizabeth’s evidence. The two sets of events are mutually inconsistent. Ingrid described an agreement for a property transfer (in two stages), whereas Elizabeth and Xavier described a licence to reside at 5 Holyrood Street (without using the technical term).
There was other conflicting evidence around this time that bears on the resolution of the issue. Xavier denied that Elizabeth had told him of the proposal, as alleged by Ingrid, that Elizabeth was going to put to her. It was a key part of Ingrid’s evidence that Elizabeth told her that Xavier was happy with the proposal (since he was not said to have been present for the discussion). In this way, Elizabeth and Xavier each contradict part of Ingrid’s evidence, albeit different parts. It follows that, to accept Ingrid’s account, the judge would have had to reject the evidence of both Elizabeth and Xavier on this part of the case. The judge rejected Ingrid’s account, later elaborating on his reasons as already outlined.[61]
[61]Reasons [33].
Equally, if the judge accepted the evidence of Elizabeth and Xavier about the ‘licence’ arrangement said to have been agreed in the kitchen of 5 Holyrood Street, this was inconsistent with Ingrid’s case. The judge expressly accepted their evidence.[62]
Post-contractual conduct
[62]Ibid [31].
The applicant relies on various evidence of post-contractual conduct said to bear on the question whether a contract was entered into as Ingrid alleged. But as the judge found, this evidence points the other way.
Where there is no written contract, post-contractual conduct may bear upon whether the parties made a contract , and what were its terms.[63] Similarly, the court may have regard to post-contractual conduct when determining the subject matter of an oral contract as a fact.[64]
[63]Regreen [2015] VSCA 286 [134] (Warren CJ, Kyrou and McLeish JJA), citing Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 163–4 [25] (Heydon JA); County Securities [2008] NSWCA 193 [17]–[27] (Spigelman CJ), [161] (McColl JA, Beazley JA agreeing at [66]); Filadelfia Projects Pty Ltd v Entirety Business Services Pty Ltd [No 2] [2011] NSWSC 116 [38] (Ball J). See also United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 [43] (Meagher JA, Ward P agreeing at [1], Gleeson CJ agreeing at [109]).
[64]Regreen [2015] VSCA 286 [134] (Warren CJ, Kyrou and McLeish JJA); County Securities [2008] NSWCA 193 [17] (Spigelman CJ).
The probative value of subsequent conduct lies in the light it may throw on the proper interpretation of the earlier communications alleged to constitute the contract. The subsequent conduct may be used to establish the cogency of the evidence of what was said or what inference should be drawn at the time of the alleged contract.[65]
[65]Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6] (2015) 329 ALR 1,114 [723], 116 [731] (Edelman J); [2015] FCA 825.
It is convenient to start with Lee’s evidence, upon which Ingrid relies. Given the issues presented, that evidence did not stand as independent support of Ingrid’s account. In the main, it showed no more than that Ingrid acted consistently with a belief that the agreement she alleged had been reached.
Lee also gave evidence of a conversation with Elizabeth a few days later, in which Elizabeth urged him to accept the deal and said, without going into specifics, that the children would ‘get the house’ and have the benefit of their aunt and uncle living next door. Elizabeth was not asked about this conversation. But in cross-examination, Lee said that Elizabeth did not clearly outline to him what the offer was that she put to Ingrid, only referring to the benefits of the offer. He ‘understood’ that the title to 5 Holyrood Street would be transferred, but Elizabeth did not refer specifically to the transfer of a 50 per cent share in the property. That is a critical gap in his evidence, because if Elizabeth was asking his agreement to the proposal, it could equally have concerned the sale of 7 Holyrood Street and Ingrid and Lee’s children living at 5 Holyrood Street, matters connected with the licence arrangement in which Lee had an interest.
Even accepting Lee’s evidence, therefore, it does not advance Ingrid’s case. In the circumstances, we do not accept that the judge ignored or overlooked the evidence. The more likely explanation for his not having mentioned it is that he did not consider it significant.
Secondly, the text messages sent by Ingrid are, at best, self-serving, and at worst, undermine her evidence. They stand as statements made by Ingrid to third parties, of which Elizabeth and Xavier were not aware. Even if they had recited exactly the deal that Ingrid alleged had been made, they would cast no light on the communications between the family members involved in the alleged meetings. So, the message to Ms Sleep, six months after the alleged agreement, showed no more than that Ingrid thought she had made an agreement in the terms she alleged. But as the judge found, the other three messages, including one sent on 1 May 2018 only days after the alleged meeting, did not describe the deal Ingrid now claims was made. The reference to ‘buying’ 5 Holyrood Street is inaccurate in two fundamental respects. Under the alleged deal, Ingrid was not making any payment for 5 Holyrood Street, she was to receive it for nothing in return for selling 7 Holyrood Street for $600,000 less than its value. Even if that could be characterised as ‘buying’ 5 Holyrood Street for $600,000, however, on any view of the deal, Ingrid was not acquiring 5 Holyrood Street, but only half of it, in that transaction.
The letters of 29 May 2019 and 1 December 2020 are in a slightly different position because they were communications to Elizabeth. They are nonetheless unilateral communications, over a year after the events in question. As such, they throw no light on what was said at either of the alleged meetings. As the judge pointed out, the 29 May 2019 letter made no reference to Ingrid receiving any interest in 5 Holyrood Street in Elizabeth’s will. It therefore omitted a critical element of the alleged deal. The 1 December 2020 letter had an equally significant discrepancy, in that it envisaged Elizabeth and Ingrid being joint tenants, which would not only have given Ingrid an immediate full interest in 5 Holyrood Street but obviated the need for that property to be dealt with in Elizabeth’s will at all, as it would pass to Ingrid by survivorship instead. The fact that the letter was written by solicitors does not assist Ingrid. If anything, it suggests that she could not have given instructions that the agreement involved her receiving half the property now and the other half on Elizabeth’s death. Competent solicitors could not have described such an arrangement as a joint tenancy.
Far from shedding light on what was said at either of the meetings, these communications (apart from that with Ms Sleep) reveal inconsistencies in Ingrid’s account of the alleged deal which go to her credibility as a witness. It is clear why the judge found that the letters, in particular, undermined the weight that could be attached to Ingrid’s evidence of the alleged agreement with Elizabeth.[66] To the extent that there was also evidence, as mentioned, of Ingrid describing the agreement to third parties in terms consistent with her case, such statements bolstered her credit; the evidence of communications with Lee are in that category, for example. But the judge plainly gave the formal communications constituted by the two letters greater weight. We would do the same.
[66]Reasons [59], [62].
Thirdly, the parties made submissions in relation to the steps that were, or were not, taken in relation to Elizabeth’s will and to effect a transfer of 5 Holyrood Street. That evidence did not, in our view, take the matter very far. It may be accepted, for present purposes that Ingrid and Lee’s impending divorce settlement complicated any alteration of property interests or testamentary dispositions within the family in the short term. It may also be assumed, as Ingrid said she understood, that Mr Waterson had said as much to Elizabeth and Xavier. But that says nothing as to what deal the parties were looking to implement, or what transactions Elizabeth and Xavier discussed with Mr Waterson. It therefore does not matter whether the judge was correct to infer that the evidence of Mr Waterson would not have assisted Ingrid’s case,[67] or to conclude that his evidence as to what legal advice he gave would not have done so.[68] Ingrid’s evidence on the subject did not shed any light on whether she and Elizabeth had made the agreement she alleged.
[67]Ibid [41].
[68]Ibid [42].
Fourthly, there is the evidence of Karin. She described the argument between Elizabeth and Ingrid on 14 February 2019, about which Ingrid and Elizabeth also gave evidence. Karin also described a telephone conversation with Joe in May 2018, about which Joe gave conflicting evidence.
Karin’s evidence that Elizabeth told her ‘the deal’s off’, referring to the relationship with Frédéric as the cause, was denied by Elizabeth. It is consistent with Lee’s evidence of a conversation with Elizabeth in April 2019 to similar effect. The import of Elizabeth expressing anxiety about Frédéric acquiring the property is that this is more consistent with Ingrid’s version of the deal, in which she would have a clear interest that could be at risk. The reported statements of Elizabeth might support an inference that there was a ‘deal’, and even one that involved Ingrid having an interest in 5 Holyrood Street of some kind. It falls well short, however, of identifying that interest or any of the terms of the deal that Elizabeth thought was ‘off’.
In the circumstances, not a great deal flows from the disputed evidence. If it has any significance, it lies in the fact, not disputed, that Ingrid alleged that Elizabeth was a ‘thief’. But even then, that reveals Ingrid’s state of mind, without helping to resolve whether there was in fact an agreement made between them, or what were its terms. For example, on any view, Ingrid had undertaken renovations at 5 Holyrood Street at her expense. If she regarded Elizabeth as having reneged on the deal pursuant to which she had done that work, this would explain the reference to Elizabeth being a ‘thief’, without shedding any light on other terms of the alleged deal.
Karin’s evidence that Joe had told her about a deal in the terms Ingrid alleged, in May 2018, was flatly denied by Joe. Again, this evidence was incapable of casting any light on what was said between Elizabeth and Ingrid, and perhaps Xavier, at the meetings they addressed in their evidence. The dispute is about whether Joe recounted the deal to Karin. If he did, her evidence is hearsay, merely recounting Joe’s reporting to her of what he had been told had been agreed. Like similar evidence already considered, it goes at best to the subjective understanding of Ingrid and/or Elizabeth and does not advance resolution of the underlying factual issue.
Finally, Ingrid relied on a text message Xavier sent to her in October 2018 saying that he could not ‘sign contract documents or transfer’ until the divorce was finalised. Like the evidence regarding Mr Waterson, this evidence is equivocal.
Conclusion
We have not found it necessary to revisit the judge’s findings that it was unlikely that Elizabeth would have made an agreement that would have effectively prevented her from using 5 Holyrood Street to fund her retirement, or that there was no evidence that Elizabeth was told that 7 Holyrood Street was valued at $2.5 million. Even if those findings were to be put to one side, our review of the evidence leads us to conclude that the judge’s ultimate finding, that Ingrid had not established the agreement she alleged, was correct.
Elizabeth and Xavier both contradicted Ingrid’s account of the deal. There was no documentary evidence supporting Ingrid’s account. The post-contractual conduct of the parties did not assist in identifying an agreement as having been made at the time Ingrid alleged, or what were its terms. Some of that material did, however, provide a basis for doubting Ingrid’s credibility. Taken together, these considerations lead us to agree with the judge, even without the benefit he enjoyed of having seen and heard the witnesses, that Ingrid’s counterclaim should be dismissed.
We will grant leave to appeal, but the appeal must be dismissed.
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