Pizimolas v Pizimolas & Zannis
[2010] SASC 158
•28 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PIZIMOLAS v PIZIMOLAS & ZANNIS
[2010] SASC 158
Judgment of The Honourable Justice Kourakis
28 May 2010
ESTOPPEL - ESTOPPEL IN PAIS - EQUITABLE ESTOPPEL - PROMISSORY ESTOPPEL
Deceased estate, consisting of a property, left to deceased’s three children in equal shares – plaintiff, the youngest son, brought proceedings against defendants, his two siblings, claiming entitlement to the whole of the property – whether executors of the estate bound in equity to make good promises made by deceased to leave plaintiff the property if he continued to reside with and care for her.
Held: deceased’s promises to the plaintiff never intended to be irrevocable – plaintiff never relied on promises – plaintiff’s continued residence at the property not a detriment – plaintiff’s claim in equity dismissed.
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Plaintiff alternatively seeks order pursuant to s 7 of the Inheritance (Family Provision) Act 1972 that greater provision for him be made out of the estate – whether deceased made inadequate provision for plaintiff.
Held: a third share of the estate is not inadequate provision for the plaintiff having regard to the size of the estate and the relative needs of the other beneficiaries – plaintiff’s family provision claim dismissed.
REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT - MESNE PROFITS
Defendants sent plaintiff letter giving one month’s notice to vacate property or to pay weekly rent – plaintiff continued to reside in property but made no rental payments – whether defendants entitled to mesne profits.
Held: Defendants’ counterclaim for mesne profits allowed in the sum of $12,000.
Giumelli v Giumelli (1999) 196 CLR 101; Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Boston (2005) 221 CLR 191, applied.
Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311; Schaefer v Schuhmann [1972] 1 AC 572; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Ansett v Moss [2007] VSC 92, discussed.
Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Clifton Securities Ltd v Huntley [1948] 2 All ER 283, considered.
PIZIMOLAS v PIZIMOLAS & ZANNIS
[2010] SASC 158Civil
KOURAKIS J
Introduction
Maria and Yannis Pizimolas were born and married in the village of Gennadi on the Aegean Island of Rhodes. They migrated from Greece to Australia in about 1950 together with their two eldest children, the defendants, Phillip and Irene. The plaintiff Stavros Pizimolas was born in Australia. In 1959 Maria and Yannis Pizimolas purchased, as joint tenants, a home in Norwood (the Norwood home).
Maria Pizimolas was born on 9 March 1922. She was, by all accounts, an energetic and resourceful woman who maintained her household and nurtured her children with great industry.
In 1982 Maria and Yannis returned to Greece and resided there for extended periods of time until 1998. In that time they built and improved certain family properties in Rhodes; they gifted the beneficial interest in those properties to their children.
Yannis Pizimolas died on 12 June 2003 and Maria Pizimolas on 27 September 2007. By her will made on 17 October 2002 Mrs Pizimolas left the Norwood home, which is in effect the only asset of her estate, equally to all three of her children.
In these proceedings Stavros Pizimolas claims first that his mother was and now her executors are bound in equity to make good promises made by her to leave the Norwood home to him alone if he continued to reside with and care for her. Stavros Pizimolas claims that the executors hold the Norwood home on a constructive trust to convey it to him. In the alternative, Stavros contends that his mother made inadequate provision for him and he seeks an order pursuant to s 7 of the Inheritance (Family Provision) Act 1972 that greater provision for him be made out of the estate.
I dismiss the plaintiff’s claim in equity because the promises of Maria Pizimolas were never intended to be irrevocable and the plaintiff, understanding that to be the case, never relied on them. Moreover, the plaintiff’s continued residence in the Norwood home was not in the relevant sense a detriment; it was in fact a real benefit to him. I explain my reasons for so finding further below.
I also dismiss the plaintiff’s family provision claim because a third share of the Norwood home is not inadequate provision having regard to the size of the estate and the relative needs of the other beneficiaries. I elaborate on my reasons further below.
Aegean sojourns
In May 1982, Maria and Yannis Pizimolas returned to Rhodes. At that time all three of their children had completed their education and were in employment. However, their daughter Irene, who had by that time married, still resided in the Norwood home with her husband and two young children. Stavros also continued to reside in the Norwood home.
In Greece, Maria and Yannis Pizimolas lived in a small house on the outskirts of Genadi where they maintained a large garden. They also organised building work on several nearby properties so that they could leave each of their children a house in Rhodes.
On 13 October 1984 they returned to Australia and resided in the Norwood home. Shortly before their return, Irene and her family moved into their own home in Rostrevor. Maria and Yannis again travelled to Greece in November 1988. Stavros continued to reside in the Norwood home. Maria and Yannis returned to Australia for the last time in May 1998. On their return they resumed responsibility for the upkeep and maintenance of the Norwood home, including a substantial vegetable garden.
The promises
Stavros gave the following evidence of a conversation with both of his parents shortly after their return from Greece in 1998:
Q.Do you remember a conversation with them in 1998 at the dinner table when they talked about the house.
A.Yes, we were at the dinner table in the kitchen and they said that the house will one day be mine.
Q.Who said that, your mother or your father or what?
A.First my father and then my mother.
Q.Did they say why eventually it would be your house.
A.Because I have always looked after it and my brother and sister were living elsewhere and no-one looked after before.
…
Q.What did you say when they told you that.
A.I really just, you know - was obviously happy, but I guess took it for granted that it would be mine and I didn’t want to pursue it because no-one wants to see their parents die, and you think they are going to live forever. So I, I guess, sat back and they were constantly saying ‘Because your brother and sister left the house many years ago, and they were looked after previously, and their children, we’re looking after you now by having the house’.
Q.Did you say anything to your parents, when they said that you would have the house.
A.I said I would be happy to take the house, obviously, yep.
I find that a conversation to that effect took place. However, I am satisfied from the terms of the conversation and the family dynamics of that time that Maria and Yannis were expressing no more than their current testamentary intentions. The reasons given for their intentions related to past and existing circumstances. They did not tie those intentions to any future support that they expected to receive from Stavros. I am satisfied that Stavros understood the promise in that way. He did not make any attempt to have the promise independently confirmed or to ensure that his parents’ wills reflected it.
Unfortunately Yannis Pizimolas soon began to exhibit symptoms of dementia. He would wander away from the Norwood home and become lost. His capacity to properly attend to his toileting and hygiene needs degenerated. He was admitted to a nursing home in about October 2000. Maria Pizimolas was much upset by the separation from her husband and fretted over his absence.
Stavros testified that after his father Yannis was hospitalised his mother spoke to him about the Norwood home in these terms:
A.It was along the lines that if I could as long as I stay with her and look after her because she didn’t want to go in to a nursing home that the house would be mine one day.
Q.Did she say when it would be yours.
A.When – when she dies.
Q.Did you say anything when she said that to you.
A.Yes, I’ll always be here for you, Mum.
Q.Now, did she say anything about your brother and sister before she said that.
A.No.
I am satisfied that there was a conversation to that effect between Maria and Stavros. It is natural that Maria would have been concerned about her future care after experiencing the mental decline of her husband. It is, however, unlikely that she would have made a firm decision to deny her other children any inheritance; after all, they too remained in close contact with her and were available to support her if the need arose. Moreover, I am satisfied that Stavros appreciated at the time that Maria’s intention was, for those reasons, necessarily provisional. I make that finding on the inferences I draw from Stavros’ awareness of the family dynamics and the fact that he again made no attempt to have the promise independently confirmed or to ensure that it was reflected in Maria’s will. Nor did he bring it to the attention of his siblings.
Maria suffers dementia
Over time Stavros started to notice changes in Maria’s behaviour. She would occasionally forget to switch off the stove or a tap. She would sometimes confuse the ingredients in her cooking. Those behaviours became more frequent and the impairment of her mental capacity deepened over time. Food would be left to burn on the stove. Maria would forget people who were long-term acquaintances. She would regularly walk to the church early in the morning when it was still dark, often arriving there well before any church service had commenced. Maria would sometimes wander away from the Norwood home and become lost. Stavros often shadowed her movements when she left the house.
Dr Varvounis was Maria Pizimolas’ general practitioner for about 30 years before her death. He made a formal diagnosis of dementia in October 2004 but he testified that he had noticed symptoms of dementia for about two or three years prior to that time.
Unfortunately Maria’s capacity to manage her affairs eventually became seriously compromised by her condition and she became largely dependent on her daughter Irene for her food and other personal needs.
Even after Maria Pizimolas could not properly care for herself, she continued to offer to cook for Stavros and to wash his clothes. Despite her condition Maria Pizimolas remained fiercely independent. She would bristle at any suggestion that she was not capable of managing herself and her own affairs. It was for that reason that Stavros would only “shadow” her when she left the house.
Maria occasionally became verbally and physically aggressive. For example, on one occasion she was convinced, wrongly, that Stavros Pizimolas was entertaining a number of “loose” women in his bedroom and berated him for it. On other occasions she would scold him for coming home late or because she believed that he was speaking to others about her deteriorating mental health. Dr Varvounis gave evidence that symptoms of memory loss, erratic behaviour and mood swings, from placidity to aggressive behaviour, are all consistent with Maria Pizimolas’ dementia.
By 2007, apart from the food brought into the house by Irene Zannis, Maria Pizimolas ate little more than biscuits and cheese.
In June 2007 Maria Pizimolas collapsed during a church service. She was taken to a hospital and later admitted to a nursing home. She remained there until her death on 27 September 2007.
Stavros Pizimolas
Stavros Pizimolas was educated at Adelaide Boys High School, Norwood High School and finally Campbelltown High School where he completed Year 12 in about 1975. He then obtained employment with the South Australian Public Service. In the early 1980s he worked as an executive assistant to the Public Service Commissioner. He continued to reside in the Norwood home with his sister Irene and her family when his parents left for Greece in 1982.
Stavros claimed that, although he initially had meals with Irene and her husband, he eventually withdrew to his own quarters within the Norwood Home because of differences with his brother in law. Thereafter he ate take-away or ate with relatives, occasionally cooking something for himself in the kitchen. Irene on the other hand maintained that she cooked for her brother and did his washing throughout the period of their cohabitation of the Norwood home. It is not necessary to resolve this difference but it is clear that the relationship between Irene and Stavros soured in that time; it has never recovered. Stavros also fell out with his brother Phillip many years before the death of their father over an incident at a friend’s house in Carrickalinga. They too have remained on bad terms.
In the early 1980s Stavros was transferred from his position with the Public Service Commissioner to the Department of Premier and Cabinet. Whilst employed there he was accused of leaking budget information. Disciplinary proceedings were commenced but Stavros was eventually cleared of any wrongdoing. However, the experience led to Stavros’ admission to the Flinders Medical Centre with what he described as “depression and breakdown”. Ultimately Stavros retired from the Public Service. On his retirement he received a substantial monetary payment which he used, in part at least, to purchase a block of land in Aberfoyle Park. He received sickness benefits from 1985 to 1992.
From 1992 Stavros undertook a Bachelor of Liberal Studies at Flinders University, graduating in 1994. He then commenced, but did not complete, an Honours degree in 1995. Stavros received a government allowance during his university studies.
Yannis and Maria Pizimolas continued to pay rates and taxes on the Norwood home for a short time after they returned to Greece in 1988. Eventually Stavros undertook responsibility for the rates and taxes but he never paid rent. Over time Stavros fell behind with the payments of rates and taxes and had to obtain credit by way of a bank overdraft facility. Ultimately, while he was still studying at Flinders University, Stavros was forced to sell his land in Aberfoyle Park to discharge his debts. After payment of his debts, Stavros retained a net amount of $20,000 from the proceeds of sale. Stavros has since spent that money on general living expenses.
Since 1996 Stavros has worked part time from home, both for the Australian Bureau of Statistics and for the accounting firm KPMG. The net financial benefit from his employment is that his pension is supplemented by about $20 to $30 a week.
Stavros’ psychological health has not improved since his retirement from the Public Service. He continues to suffer from anxiety and depression. Dr Varvounis testified that he had noted that alcohol abuse was a significant feature of Stavros’ presentation as early as 1995 and made a formal diagnosis of alcoholism in 2006. According to Dr Varvounis, Stavros’ alcoholism was exacerbated by the emotional distress of residing with his mother. Stavros’ physical capacity is limited by an injury to his knee; a cartilage tear was repaired in 2001.
Stavros seemed to have a strong aversion to attending to the personal needs of his mother. I do not think that that aversion shows any callousness or lack of sympathy for her condition. It is more likely the result of cultural characteristics and his emotional and psychological difficulties.
Stavros testified that he maintained the garden of the Norwood home while his parents were in Greece. I accept that that was so. He also testified that he tended to the garden after their return. In answer to a leading question from his counsel, Stavros also assented to the proposition that he did work “like looking after the guttering and that sort of thing”. On the other hand, Irene Zannis testified that she never saw Stavros physically assisting her mother or doing any maintenance work on the house. Irene agreed that vegetables were growing in the garden in the year before her mother was admitted to the nursing home but insisted that that was the result of her mother’s labour. I accept that Maria Pizimolas continued to work in the garden throughout the entire time she remained at the Norwood home but I also accept Stavros’ evidence that he did much of the gardening other than the lawn mowing. For about 10 years before Maria Pizimolas passed away, the lawns were mown by a contractor, Mr Maddern, who had been engaged by Phillip Pizimolas.
On the other hand, I find that Stavros did very little, if any, building maintenance. His assertion that he did so was unconvincing for want of detail. His claim was also inconsistent with other evidence. Mr Tieste testified that he had performed odd jobs at the house over a three or four year period on a total of about 10 or 12 occasions. He was engaged to do so by Irene Zannis. The last occasion on which he visited was about five years before he gave evidence. Mr Tieste testified that he regularly cleaned the gutters. Once he was called in to gain entry to the bathroom by breaking a window so that he could open the lock on the inside bathroom door. On yet another occasion he mowed the lawns. When Stavros was in Greece, Mr Tieste painted the outside room in which Stavros slept. The pattern of the work performed by Mr Tieste suggests, and I so find, that Stavros did very little if any maintenance work on the Norwood home.
Even though Stavros performed little work around the house apart from gardening and did not actively care for his mother, I find that his continued presence in the house was a benefit to his mother. He was able to guard against the serious dangers to the house and Maria’s personal safety arising from her forgetfulness. I am sure that the continuing presence of her youngest son much comforted Maria.
As a result of a disagreement with his mother in July 2004, Stavros moved out of the Norwood home. He stayed with several different friends for varying periods of time. However, Maria Pizimolas was anxious to have him return. His uncle, also called Phillip Pizimolas, and to whom I shall refer as Uncle Phillip, shared the view that Stavros should return to the Norwood home.
Dr Varvounis organised and then attended a meeting held in August 2004 to discuss how the family should best deal with the matter. The Greek Orthodox priest for the Norwood community, Father Stavros, chaired the meeting. The others who were present were Phillip Pizimolas, Uncle Phillip and Stavros. Irene did not attend because of some confusion about who was meant to contact her. Dr Varvounis testified that he did not favour Stavros’ return to the Norwood home at that stage. However, Father Stavros and Uncle Phillip both encouraged Stavros to return. Phillip Pizimolas also asked Stavros to return but he testified that he did so because of Maria’s concern for Stavros’ welfare. Stavros Pizimolas testified that he was urged to return so that he could look after Maria. I am satisfied that both reasons for Stavros’ return were raised and discussed at the meeting. After the meeting, Irene spoke to Stavros by telephone. She also encouraged him to return.
It is not necessary to resolve such a dispute as there is about the reasons advanced by each of the attendees of the meeting for Stavros’ return. It is Stavros’ reason for returning that is of legal significance.
Stavros returned to the Norwood home after an absence of about six weeks. I accept that Stavros’ concern and the concern of others for his mother’s welfare was one of the matters which influenced his decision to return when he did. Interestingly Stavros did not expressly attribute his return to his desire to secure his interest in the Norwood home by fulfilling his promise made several years earlier that he would always be there for her. Nonetheless I am prepared to infer that the possibility that he might be left the Norwood home was in his mind when he returned.
However, I am also satisfied that the paramount reason for his return was the absence of any realistic long term alternative accommodation for him. He had resided in the Norwood home for his entire life. Even when he had been in quite secure employment as the Executive Assistant to the Public Service Commissioner, he had shown no inclination to live independently. Instead he remained in the Norwood home, sharing it with his parents and Irene’s family despite his animosity to her husband. Indeed he continued to share the Norwood home with Irene’s family even after his parents had left for Greece. In 2004 Stavros could not hope to stay with his friends forever. Living on the streets was not an option. Housing Trust accommodation would take much time to organise and would take him far from Norwood. Stavros would have found it extremely difficult to live in shared accommodation after many decades of a largely solitary life. Following his admission to the Flinders Medical Centre in 1984, Stavros’ capacity to obtain, maintain and pay for his own independent accommodation was seriously diminished. Not only did he suffer from anxiety and depression but he was dependent on social security, supplemented by some casual part time work. His inability to finance alternative accommodation is well demonstrated by the fact that whilst he was studying at Flinders University he could not meet the rates levied on the Norwood home even though he was not paying rent. By 1995 Stavros’ psychological condition had deteriorated further. In that year Dr Varvounis noted Stavros’ alcohol abuse as a matter of concern.
By August 2004 Stavros was a 47 year old man who had never lived away from his parents home with a substantial incapacity for work and a serious alcohol dependency. The request that he return to the Norwood home was an offer that he could not afford to refuse.
Irene Zannis
Irene Zannis was born on 26 September 1945. She left school at the age of 18 and worked as a stenographer. She married in 1972. She lived with her husband in the Norwood home whilst they built a house at Rostrevor. I have already observed that Irene and her family moved into their own home in 1984. She subsequently separated from her husband. Irene has three children. Her two sons are aged 34 and 32, and her daughter is aged 25. Both sons still reside with their mother. Her eldest son, Michael, is blind and is dependant on social security benefits. The middle child is tertiary educated, in employment and financially independent. Her daughter also resides at home and is in employment. There is a $100,000 mortgage on her Athelstone home. Irene also owns land at Flagstaff Hill which is valued at a little over $200,000. Between about 2003 and 2006 Irene received $15,600 by way of gift from her mother. The money was the proceeds of the sale of a beach property in Gennadi which she had been promised as part of her dowry.
Irene Zannis testified that she helped her mother by providing meals and assisting her to clean the house from the time that her father began to suffer from dementia. After Maria herself came to suffer from dementia, Irene attended almost every morning to ensure that she took medication prescribed for her developing memory loss. She would at the same time encourage her mother to eat breakfast. Stavros Pizimolas accepted that Irene assumed responsibility for meeting his mother’s personal needs as her condition deteriorated.
In the 12 month period leading to her mother’s admission, Irene would also visit the Norwood home during and after work. She often received distressing telephone calls from her mother when she was not able to cope with difficulties she had encountered around the house. On one particular occasion she was called to the Norwood home late at night because her mother had soiled herself. She spent some hours cleaning up without any assistance from Stavros who stayed, for most of that time, in his room.
Eventually Irene arranged for District Nurses to administer Maria’s morning medication. Unfortunately on many occasions they could not find Maria because she had wandered away from the Norwood home. Irene Zannis also engaged Mr Tieste to do maintenance jobs on the Norwood home.
Every Sunday Irene Zannis or her son took Maria to church.
Phillip Pizimolas
Phillip Pizimolas is the eldest of the children of Maria and Yannis Pizimolas. He is married with two adult children. He has a home in Unley, was given a property in Greece by his parents and also part owns a commercial property at Mile End through a family trust. Phillip Pizimolas gave evidence that he took his mother to visit Yannis Pizimolas’ grave at the Payneham Cemetery every Sunday. From there Phillip would take his mother to the Norwood home or to his home in Unley, where she would stay for lunch.
Phillip Pizimolas organised an identity wrist bracelet for his mother but after she learnt to remove it he replaced it with a neck bracelet. As I have already observed, Phillip engaged Mr Tieste to mow the lawns.
The video recording
Stavros Pizimolas made a video recording of his mother in an apparently distressed state late on the night of 17 September 2006. It is unfortunate that that short video footage of his mother at a time when she suffered from advanced dementia, and its true meaning, has taken a prominent position in these proceedings.
An accredited interpreter and translator, Ms Michas, made a transcript of the Greek spoken by Mrs Pizimolas and then translated it into English. The words spoken by Maria are preceded by the letter F and the words spoken by Stavros are preceded by the letter M in the translation which follows:
17.09.06 2331 g.n.
F. Finally, I will not go to sleep, I will stay awake.
M. Why?
F.Because I’ve got work to do! It’s three o’clock, three o’clock that’s here that why it happens ..
M. Mma ..,
F. Here is that it happens, … the lights ..
M.Maria, it’s almost 12 o’clock, now I came home at 11.30 why are you yelling why are you saying that I wasn’t here and that I came at 3 o’clock?
F.Oh! Po! Po! … my God, … I look at your house there wasn’t any, I looked here there weren’t any I looked outside from the window, here are all the lights, I watched from the window.
M. Maria, why are you yelling? Why are you so upset with me? Tell me!
17.09.06.2331
F. To die, then you can have the house! No … … that they make you crazy …
M. What else Maria?
F. I want my children to have clear conscience.
M. What else to …
F. To put words to you/create mischief.
M. What have they done to you?
F.And the other one and the other one with the … Mental Institution, … who is she to tell you of the Mental Institution … all the time.
M.Maria, I don’t stay at home and I leave because you loose it; that’s why. You making me *(bafe?)
F. My brains are intact: my father was advising me, was advising me …
M. Yes, tell me, tell me …
F. Yes my father was advising me was tell me … (cuts out)
(emphasis added)
The italicised part of that translation is disputed by the defendants. Ms Michas gave evidence that the Greek words used were:
Na pethani. Na pari (or Na paris) to spiti. Ohi (or then) … Pou se kanoun trelo …
Ms Michas acknowledged that she was not able to identify some sounds in that passage indicated by the ellipses. On rehearing the tape Ms Michas gave evidence that she had made out words meaning “to hell with it”.
On the other hand Phillip Pizimolas said that the Greek words spoken were:
Tha pethano. Na mou pari to spiti. Ohi. Se trelenoune.
Na pai sto diavolo
Phillip Pizimolas translated those words as: “I’m going to die so he can grab the house? No! They make you crazy. He can go to hell”.
The factual significance of the controversy over the translation can be summarised as follows. Stavros Pizimolas relies on the disputed part of the video as confirmation of previous conversations with his mother that he would inherit the Norwood home on her death. On the other hand, the defendants contend that in that passage Maria denies by the use of the emphatic “No!” any intention to leave the house to Stavros on her death.
I find the audio of the video recording taken by the mobile phone difficult to follow. I cannot decide between the evidence of Ms Michas and Phillip Pizimolas as to the precise Greek words that were used; it is that difference that accounts, to some extent, for the difference between them as to the English meaning. However, in my view the context in which the words were spoken allows the difference to be readily resolved. The initial and primary concern of Maria Pizimolas in the video is the late night arrival of Stavros and the switching on of the outside lights. It is also plain that she was concerned that some people may have thought that she was losing her mind and that she should be placed in a “Mental Institution”. Finally, it must be remembered that at the time the video was taken Maria well knew that one or more of her children would inherit the Norwood home when she died.
Having regard to that context, I find that the words spoken disclose that Maria had had some limited insight into her deteriorating mental condition and a concern that others thought she was losing her mind or were trying to make it appear as if that were so. In that context the underlying meaning of the disputed words seem to me to be as follows:
On my death you can have the house. No; they will not drive me crazy [unsaid ‘and take the house earlier’]. To hell with it.
So understood, the passage neither supports nor denies Stavros’ claim that Maria had promised him the Norwood home. Maria may have been referring to all three of her children inheriting the Norwood home on her death. Equally, Maria Pizimolas’ recorded declarations are not inconsistent with Stavros’ claim. Maria does no more than to assert her determination to stay in the home until she dies.
Equitable claim fails
In Giumelli v Giumelli,[1] Gleeson CJ, McHugh, Gummow and Callinan JJ explained:
[2]In submissions to this Court, the term ‘constructive trust’ was used to identify the nature of the equitable remedy granted by the Full Court. Care is required in the use of the term ‘constructive’ in this context. Professor Scott has pointed out:
It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court ‘constructs a trust’. The expression is, of course, absurd. The word ‘constructive’ is derived from the verb ‘construe’, not from the verb ‘construct’ … The court construes the circumstances in the sense that it explains or interprets them; it does not construct them.
The relief granted by the Full Court involved a trust that was ‘constructive’ in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent’s equity by bringing about a subdivision of the promised lot and conveying the title to it. The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the promised lot, to convey it to the respondent.
[3]A constructive trust of this nature is a remedial response to the claim to equitable intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the property in question, thereby bringing about a determination of the rights and titles of the parties.
[4]The term ‘constructive trust’ is used in various senses when identifying a remedy provided by a court of equity. The trust institution usually involves both the holding of property by the trustee and a personal liability to account in a suit for breach of trust for the discharge of the trustee's duties. However, some constructive trusts create or recognise no proprietary interest. Rather there is the imposition of a personal liability to account in the same manner as that of an express trustee. An example of a constructive trust in this sense is the imposition of personal liability upon one ‘who dishonestly procures or assists in a breach of trust or fiduciary obligation’ by a trustee or other fiduciary.[2] (footnotes omitted)
[1] (1999) 196 CLR 101.
[2] Giumelli v Giumelli (1999) 196 CLR 101 at 111-12 [2]-[4].
Their Honours later explained that the equity which would support relief in the nature of a constructive trust:
was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff.[3]
[3] Giumelli v Giumelli (1999) 196 CLR 101 at 112 [6].
In Walton Stores (Interstate) Ltd v Maher,[4] Brennan J enumerated the elements of promissory estoppel thus:
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.[5]
[4] (1988) 164 CLR 387.
[5] Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-9.
In Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd,[6] I summarised the elements of proprietary estoppel, or estoppel by encouragement, and promissory estoppel in the following way:
[85]Proprietary estoppel (or estoppel by encouragement) is said to arise where the owner of property, by words or conduct, induces another to believe that he or she either has or will be granted an interest in that property. The belief might be induced by encouragement to build upon land or by analogous conduct. … A proprietary estoppel will support an equitable cause of action which prevents the enforcement of the defendant’s legal rights and confers proprietary rights on the plaintiff.
[86]A promissory estoppel is based on a voluntary promise that the promissor will not enforce his strict rights against the promissee which induces the latter to change his position in a way that would expose him to detriment if the promissor were free to resile without notice from his promise. A promissee must of course change his position in a meaningful way. A promissory estoppel prevents the enforcement of legal rights where it would be inequitable to do so. It is an equitable cause of action which entitles the promisee to an injunction to restrain enforcement of the right with the possibility of an award of equitable compensation.
[87]To support a promissory estoppel the promise must be unequivocal and it must be intended to affect legal relations. A casual conversation cannot support a promissory estoppel. The promissor must be aware of the rights that he or she has promised not to enforce.[7] (footnotes omitted)
[6] [2009] SASC 311.
[7] Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311 at [85]-[87].
I find that in this case the plaintiff has failed to prove the critical and related elements of reliance and detriment. In my view, Stavros did not rely on the representations made by his parents. I find that he treated them as no more than a statement of their current intention and did not regard those statements as being in any way irrevocable. The nature of the relationship between Stavros and his parents, their circumstances at the time the statements were made and the content and context of the conversations all suggest that Maria and Yannis, and later Maria on her own, were doing no more than expressing their present feelings about the matter. The fact that Stavros did not raise the making of the promises with his siblings and took no steps to secure the transmission of the Norwood home to himself either by an inter-vivos or testamentary disposition confirms my finding that he understood their declarations in that way.
In any event, at no relevant time did Stavros act to his detriment as a result of the promises that were made. He did not choose the more detrimental of several alternative courses which were open to him by remaining and later returning to the Norwood home. It suited him and it was to his personal advantage to continue to reside there. Unlike the plaintiff in Giumelli, Stavros did not suffer any loss of income or incur any cost by remaining in his parents’ home. Nor did he give up an opportunity to take up any different employment or other advancement or place himself in a position to acquire a proprietary interest in any other home.
I accept that Stavros personally suffered by having to bear the effects of his mother’s deteriorating mental health at close quarters. I also accept that he did substantially contribute to the relative comfort of his mother by remaining in the Norwood home. Those consequences resulted from his own impoverishment and other personal circumstances which bound him to reside in the Norwood home. For the reasons I have given, that alone is not sufficient to constitute detriment in the relevant sense and nor did his suffering result from reliance on the statements made by his parents.
There is, therefore, no reason in equity to hold the estate of Maria Pizimolas to her promises.
The family provision claim
Section 7(1) of the Inheritance (Family Provision) Act 1972 provides:
(1) Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
In Singer v Berghouse,[8] Mason CJ, Deane and McHugh JJ said of the provisions of the analogous New South Wales Act:
[8] (1994) 181 CLR 201.
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the ‘jurisdictional question’. That description means no more than that the court’s power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a).
…
In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen; Allen v Manchester. In that case his Honour said:
The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.
For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language.
The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.[9] (footnotes omitted)
[9] Singer v Berghouse (1994) 181 CLR 201 at 208-10.
In Vigolo v Boston,[10] Gleeson CJ and Gummow and Hayne JJ held that applications made under similar Western Australian legislation are to be decided by the Court applying the two stage process referred to in the extract from Singer above. However, a difference of emphasis emerged in the judgments on the content of the evaluative judgment which is implicit in the concept of “inadequate provision”. Gleeson CJ accepted the continuing utility of the concept of “moral duty”:
[12]The ‘testamentary duty’ which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. … Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based.
…
[25]In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description ‘moral’. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.[11] (footnotes omitted)
[10] (2005) 221 CLR 191.
[11] Vigolo v Boston (2005) 221 CLR 191 at 199-200 [12], 204-05 [25].
On the other hand, Gummow and Hayne JJ, after referring to the passage in the judgment of Mason CJ, Deane and McHugh JJ in Singer in which references to moral duty were described as a gloss on statutory language, said:
It is apparent that their Honours were not using the term ‘gloss’ in its milder sense of an epexegetical comment or explanation. Rather, they were using it in the same sense as Williams J had done in Coates, that is to say, of a paraphrase which is apt to mislead.[12]
[12] Vigolo v Boston (2005) 221 CLR 191 at 217 [70].
Callinan and Heydon JJ accepted that the conception of a moral duty could properly be applied to some cases and in particular cases where a testator had promised that particular provision would be made for a claimant. They said:
[113]We would not be reluctant, at least in some cases, to use the expressions ‘moral duty’ and ‘moral obligation’, and to apply the concepts underlying them, which include the idea of ‘moral claims’. It seems to us that there are several material indications in the Act that moral considerations may be relevant. But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant.
…
[115]The next of the indications is the expression, in comprehensive language, of the sorts of provision that the court may order, that is, provision by way of maintenance, support, education or advancement. ‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support’ similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote ‘advancement’ would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education. Significantly, and not inappropriately, one of the forms in which the appellant sought to put his case here was as a claim for advancement. That the idea of a ‘moral claim’ may have been introduced as an aid to judicial deliberation before it was enacted that claims could be made upon intestate estates, does not, in our opinion render it less relevant or useful now that such claims may be made. In principle, there is no reason why effect should not be given to a moral claim upon the estate of an intestate estate in the same way as it would have been, had the deceased left a duly attested will.
…
[121]For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act.
[122]We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.[13] (footnotes omitted)
[13] Vigolo v Boston (2005) 221 CLR 191 at 228 [13], 228-9 [15], 230-1 [121]-[122].
It is, in my view, important to approach the evaluative judgment which is described in the passages cited above with a proper understanding of the purpose of the Act. The first such legislation in Australasia was enacted in New Zealand in 1900. In Australia, legislation was enacted by Victoria in 1906, New South Wales in 1908, Tasmania in 1912, Queensland in 1914, South Australia in 1918 and finally Western Australia in 1920. The enactment of the legislation in the early 20th century has been explained in the context of two features of the social and political context of environment of the times. First, there was political acceptance of the right of the State to intervene to curtail private property or contractual rights where those rights were “abused”. Secondly, there was an emerging recognition of the need to redress the disadvantaged position of women.[14] It must also be remembered that at the commencement of the 20th century the former Australasian colonies were still relatively young. Accumulation of social and personal capital was still immature. Government social security safety nets were largely non-existent. The Destitute Persons Acts were a crude, and not particularly benevolent, form of intervention. The poor and impoverished were largely dependent on religious and other charitable organisations. The family unit was a fundamentally important element of the economic and social welfare of the population. The failure of a testator to leave sufficient support for his family could leave them impoverished and cause significant public mischief.
[14] R F Atherton, ‘New Zealand’s Testator’s Family Maintenance Act: The Stouts, the Women’s Movement and Political Compromise’ (1990) 7 Otago Law Review 202.
In Schaefer v Schuhmann,[15] Lord Simon of Glaisdale explained the social obligation to provide for family members in this way:
Men and women necessarily have different functions to perform in the creation of new members of society and in their upbringing to independent membership. A functional division of co-operative labour generally calls for a sharing of the rewards of the labour. The social function carried out by women in the bearing and upbringing of children puts them at an economic disadvantage. Indeed, it is by the woman’s assumption of responsibility as childbearer and homekeeper that the man is freed for his assumption of responsibility as breadwinner. In consequance of this division of responsibility the man incurs an obligation to share the loaf with the woman and the woman acquires a right to share in it. Similarly, their children, who did not ask to be brought into the world and whose upbringing is required by society for its continuity, have a right to support until capable of self-support - primarily from their father, since it is he who has been released to be the breadwinner. The family is the social and legal institution within which these various rights and obligations are worked out.
Moreover, the rights and obligations do not necessarily come to an end on the death of the husband and parent. The wife’s needs and, generally, her economic impairment subsist. The children continue to need support until themselves ready to assume independent membership of their society. On the other hand, the means of the husband and father available for the support of wife and child are not necessarily cut off by his death. He may have been enabled to make an accumulation which is available.[16]
[15] [1972] 1 AC 572.
[16] Schaefer v Schuhmann [1972] 1 AC 572 at 595-6.
Lord Simon then referred to the position, taken until the end of the 17th century in England and still taken by other legal systems including Scotland, which guaranteed for the testator’s family a fixed portion of an estate not available for testamentary disposition. His Lordship continued:
The legislative intention [of the New South Wales Family Maintenance and Guardianship of Infants Act 1916] cannot therefore be in doubt: it was to prevent family dependants being thrown on the world with inadequate provision, when the person on whom they were dependent dies possessed of sufficient estate to provide for or contribute towards their maintenance. This was the ‘mischief’ for which the statute was providing a remedy…[17]
[17] Schaefer v Schuhmann [1972] 1 AC 572 at 596.
However, private property rights were still regarded as fundamental and it was never intended that the legislation would give courts a free hand to rewrite the testator’s will.[18] In my view, the use of the words “inadequate” and “proper” were calculated to fix a balance between the public interest in ensuring sufficient support for family members and the property rights of the testator. Provision by the testator is inadequate only if it is not sufficient to provide the support that is appropriate to the circumstances of the applicant having regard to the needs of other beneficiaries or claimants who are protected by the legislation.
[18] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 477.
A testator with surplus in his or her estate above the capital necessary to provide the appropriate support is not obliged to provide more, even if another testator would have allocated a greater proportion of the estate for that purpose. Of course, the level of support that is required may not be limited to that which is necessary for bare survival or a spartan existence. The support that is necessary is that which is proper for the maintenance, advancement and education of family members.
On the other hand, a parent with a large family and small personal wealth may not have sufficient to bequeath to each of his or her children enough to support them in even the barest of existences for long at all. Nonetheless, the provision will be adequate if all or practically all of the estate is left for that purpose because it provides maintenance which is proper in all of the circumstances, including the size and nature of the estate and the number of other persons who have legitimate claims. Importantly, in the case of both the wealthy and the poor testator, adequacy must also be measured against the capacity and resources of the claimant.[19]
[19] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.
The purpose of the legislation is to provide a safety net and not a statutory right to a minimum allocation from the estate.[20] In particular, in Pontifical Society for the Propagation of the Faith v Scales,[21] Dixon CJ noted:
Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.[22]
[20] Bosch v Perpetual Trustee Co [1938] AC 463 at 476; Singer v Berghouse (1994) 181 CLR 201 at 208-10.
[21] (1962) 107 CLR 9.
[22] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.
The following observations of Harper J in Ansett v Moss[23] are consistent with that dictum of Dixon CJ:
The problem is that testators sometimes take a view of their moral duty that differs from the view of others, including that of the court. It is then the court’s difficult task to deal appropriately with such difference. Ultimately, of course, it is the responsibility of the court to determine the issue. But that responsibility must be discharged with due diffidence. There may be more than one legitimate view of a particular testator’s moral duty to those whom that testator must consider when deciding whether adequate provision should be made by that testator for that person’s proper maintenance and support. The fact that a wise and just judge would not have made the same testamentary provision as did the testator in a particular case does not necessarily mean that, within the proper limits of the right of which Callaway JA spoke, the testator was unwise and unjust.[24]
[23] [2007] VSC 92.
[24] Ansett v Moss [2007] VSC 92 at [24].
I accept that, in addition to a consideration of the size of the estate and competing demands for maintenance, education and advancement of the family members, their conduct generally, and not just their disentitling conduct, can be considered.[25]
[25] Goodman v Windeyer (1980) 144 CLR 490; Vigolo v Boston (2005) 221 CLR 191 at 230-1 [122] per Callinan and Heydon JJ.
In this case the assistance, limited as it was, provided by Stavros whilst he resided at the Norwood home is a relevant consideration which is favourable to him. It is conduct on his part which saved Maria, or Stavros’ siblings, considerable expense. A letter from the agency “Dial an Angel”, which was received as an exhibit, provides a broad indication of the cost of providing in-house support. I do not think that it would have been necessary for Irene or Phillip to have engaged those sorts of services on a daily full time basis if Stavros had not resided with his mother, but they may have done so occasionally.
On the evidence of Dr Varvounis, I find that the stress of residing with his mother exacerbated Stavros’ pre-existing psychological difficulties to some extent. However, it is doubtful that his condition would have been materially different now if he had not resided with his mother or if she had not developed dementia. I accept that it would nonetheless have had some effect, albeit largely temporary or transitory in nature.
The proper maintenance of an adult child with the physical and psychological disabilities of the plaintiff may include, where the estate is in a position to afford it, the provision of appropriate accommodation. Throughout his life, Stavros has resided in a single room of the Norwood home sharing its common areas with his parents, his sister and her family and finally with his mother alone. In those circumstances, provision of a flat or unit with a single bedroom is in my view sufficient provision for his accomodation. I do not think it is necessary that that accommodation be in Norwood. Accommodation in an inner suburban location is sufficient. Stavros has friends and family in Norwood but he also has friends and family who reside elsewhere in Adelaide. An inner city location would allow him to walk or catch public transport to Norwood. Stavros is only employed casually. He has no dependents. The time involved in taking public transport should not be an undue burden on him.
In my view, it was not necessary to provide Stavros with financial support over and above the provision of accommodation. He has completed a tertiary education and is not in need of further education or advancement. Social security payments supplemented by some casual work and income from the property in Greece should enable him to pay the rates, taxes and maintenance on a small unit and live reasonably comfortably. Alternatively, he could choose to reside for periods of his life in Greece while renting out a unit which he might own in Australia. Alternatively again, he could sell the unit in Greece and use the proceeds to support himself in Australia.
The evidence before me shows that a one third share of the net estate left by Maria Pizimolas was valued at about $203,000 as of the date of her death. After the payment of his share of testamentary and selling expenses, Stavros would have received approximately $195,000. I received by consent expert valuation evidence in the form of an email sent by the valuer Mr Christodoulou to the defendants’ solicitor. In his opinion, one bedroom units could, at that time, be purchased in suburbs such as Prospect or Collinswood for between $190,000 and $230,000. In the event that Stavros may have encountered a shortfall between the proceeds and any particular unit he wished to purchase, he had some capacity to meet that by taking out a small loan which could be serviced by casual work or some of the rent received from Greece.
In my view, neither the circumstance of Stavros’ residing with his mother in the Norwood home nor the inter-vivos gift to Irene require any adjustment to the equal testamentary treatment accorded to each of her three children by Maria. I observe first that the equality of the treatment still provided a proper level of support for Stavros and allowed for the advancement of his siblings. Secondly, all three siblings contributed to the care of Maria in her old age. Thirdly, Stavros also received a considerable inter-vivos benefit through his long term occupancy of the Norwood home.
If Stavros were bequeathed a greater share of the estate than his siblings, he may have been in a position to buy a larger residence closer to Norwood. Alternatively, he may have preferred to invest all or part of his share in a way which supplemented his social security benefits. However, inferentially Maria Pizimolas took the view in making her will that, having regard to the competing claims of her other children, the proper maintenance of Stavros did not extend to providing the accommodation of his choice at the expense of the advancement of his siblings through their proportionate shares of the estate. I too take that view. There is no reason here to interfere with the balance Maria Pizimolas struck between provision for Stavros’ maintenance and the legitimate claims of his siblings.
True it is that the costs of these proceedings have now depleted the estate. The plaintiff may not be able to afford a unit of the value that he might have been able to purchase. That, however, is the result of his decision to bring these proceedings.
Conclusion
It follows that, for the reasons I have given, I find in favour of the defendants on the plaintiff’s claims both in equity and for family provision.
The counterclaim for mesne profit
The defendants counterclaim against the plaintiff for mesne profit, calculated at between $410 and $450 per week for the period of his occupancy from 3 September 2008. On that date the defendants sent Stavros’ solicitor a letter giving him one month’s notice to leave the Norwood home or to pay weekly rent in the sum of $350. Stavros continued to reside in the premises and has made no such payments.
The defendants have shown that the weekly rental value of the property was $410 in September 2008, $425 in September 2009 and $450 in January 2010.
In my view, however, to simply multiply the current rental market value of the premises by the number of weeks of the plaintiff’s occupation would be to over-compensate the defendants. It is necessary to assess the likely return in the particular circumstances of the Norwood home.[26] It would have been necessary to spend money to bring the house into a condition to rent it at the appropriate market value. The defendants may not have immediately rented the Norwood home having regard to all of the circumstances and, in particular, the disputed claims made over it. Even if they had, there may have been some difficulty in renting it or at least obtaining the market rate given the dispute over the house. The defendants may not have been in a position to provide a long term rental to secure the market rate. I also regard the claim to a rent of $350 made in the letter giving Stavros notice to quit as some evidence of the weekly rental at which the defendants would have let the house if Stavros had vacated it.
[26] Clifton Securities Ltd v Huntley [1948] 2 All ER 283 at 284.
In all of the circumstances and doing the best that I can, I allow the counterclaim only in the sum of $12,000.
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