Saitannis v Katsolos

[2022] NSWSC 1468

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Saitannis v Katsolos [2022] NSWSC 1468

Hearing dates:

5 – 9 September 2022

Decision date:

27 October 2022

Jurisdiction:

Equity

Before:

Robb J

Decision:

See [102] to [117] below. The parties are to confer and provide agreed short minutes of order or further submissions to the Associate to Robb J in respect of the orders to be made on the basis of the findings in these reasons and as to the costs of the proceedings.

Catchwords:

ESTOPPEL — proprietary estoppel — encouragement — plaintiff daughter and son-in-law sell home and move in to property of defendant mother and pay sister $100,000 — plaintiffs expend capital renovating property — plaintiffs claim to have done so upon representations by defendant that plaintiffs would become sole owners of property — defendant claims to have allowed plaintiffs to reside in property for indefinite period to raise their children and save money for own home — neither party’s case accepted in whole — family arrangement involved counter-assumption that defendant would be allowed to reside in renovated granny flat on property — whether plaintiffs have beneficial interest in property arising from equitable estoppel — whether element of counter-assumption should influence relief granted

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Campbell v Campbell [2015] NSWSC 784

Evans v Braddock [2015] NSWSC 249

Evans v Evans [2010] NSWSC 170

Flourentzou v Spink [2019] NSWCA 315

Meshumar v Otmy (2018) 97 NSWLR 615; [2018] NSWSC 125

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

Perry v Perry [2021] NSWSC 1669

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

Spink v Flourentzou [2019] NSWSC 256

Category:

Principal judgment

Parties:

Helen Saitannis (First Plaintiff)
Louis Saitannis (Second Plaintiff)
Irene Katsolos (Defendant)

Representation:

Counsel:
C D Wood SC & J R B Pearson (Plaintiffs)
R O’Neill (Defendant)

Solicitors:
Shad Partners (Plaintiffs)
McDonnell Schroder Solicitors (Defendant)

File Number(s):

2020/00197166

JUDGMENT

1. The first plaintiff, Helen Saitannis, is one of three daughters of the defendant, Irene Katsolos. The second plaintiff, Louis Saitannis, is the husband of the first plaintiff.

2. As the parties did at the hearing, I will, without meaning any disrespect, refer to the parties by their first names.

3. As well as Helen and Louis, the following witnesses gave evidence in the plaintiffs' case. Peter Saitannis is the brother of Louis. Christine Saitannis is Louis' sister. Spiridoula Saitannis is Louis' mother. Theodoros Totsis is the husband of Christine and Louis' brother-in-law.

4. The only witnesses in the defendant's case were Irene herself and one of her daughters, Anastasia Katsolos. Irene’s other daughter is Georgina, who did not give evidence.

5. The parties served expert valuation reports in respect of the two properties that are relevant to these proceedings, but it was not necessary for those reports to be tendered or the experts called to give evidence as the parties agreed to the valuations that the Court should adopt for the purpose of these proceedings.

6. The subject matter of the proceedings is a residential property at Georges Hall in this State that I will call the Georges Hall property. Irene is the sole registered proprietor of the Georges Hall property.

7. By their statement of claim filed on 3 July 2020, the plaintiffs’ primary claim was for a declaration in the following terms:

1.    A declaration that the Defendant holds the whole of her interest in the [Georges Hall property] on trust for the sole benefit of the Plaintiffs.

8. The plaintiffs originally claimed an additional order that Helen execute a transfer in registrable form of her right, title and interest in the Georges Hall property in favour of the plaintiffs within seven days of the making of the declaration. However, the plaintiffs did not press for that relief at the hearing.

9. The plaintiffs sought in the alternative an order that Irene pay them equitable compensation and, in the further alternative, reasonable compensation for the benefit of services which the plaintiffs claimed they had performed and which Irene requested and freely accepted.

10. The plaintiffs' claim was based upon an equitable proprietary estoppel by encouragement whereby they alleged that, in about mid-2009, Irene represented to the plaintiffs that, upon the plaintiffs paying to Anastasia the sum of $100,000, they would become the sole owners of the Georges Hall property, and Irene would relinquish any rights she held in respect of that property. The representation was said to be express and oral and made during a conversation between the plaintiffs and Irene that occurred at the Georges Hall property.

11. The plaintiffs supported this claim by an allegation that, shortly after the representation was made, they advised Irene that they agreed to transfer $100,000 to Anastasia in exchange for the Georges Hall property, and that Irene further represented to them that in order to avoid incurring stamp duty, Irene would remain on the title and would give her legal interest in the property to the plaintiffs in her will, and that, although Irene's name would be on the title, the plaintiffs would be the true owners and would be beneficially entitled to the property. The plaintiffs claimed that the further representation was express and oral and was made during a conversation between the plaintiffs and Irene that occurred at a property in Macquarie Fields that was then owned by and was the home of the plaintiffs.

12. The plaintiffs pleaded, as an alternative basis for the proprietary interest that they claimed in the Georges Hill property, that it was the result of a common intention constructive trust, although the plaintiffs relied upon the same factual circumstances to support that claim as formed the basis of their equitable proprietary estoppel claim.

13. The plaintiffs claimed that, in reliance upon the representations, on about 14 October 2010, they completed the sale of their Macquarie Fields property, and on the same date they moved into the Georges Hall property and began residing there with their children. On about 20 October 2010, Helen transferred the sum of $100,000 to Anastasia.

14. The plaintiffs claimed that, since about early 2010, they have paid all outgoings, bills and expenses associated with the Georges Hall property, and that during the period from mid-2009 to July 2020 the plaintiffs carried out, and caused to be carried out, renovations, works and repairs on the Georges Hall property. The plaintiffs claimed that Irene attended the property on various occasions during the period in which the renovations were being carried out and observed Louis carrying out the renovations, represented to the plaintiffs that they were the owners of the property, and encouraged the plaintiffs to continue the renovations.

15. The plaintiffs alleged that on 18 January 2020, Irene resiled from the promises inherent in the representations, asserted that the plaintiffs had no interest or entitlement to the Georges Hall property, advised of her intention to move back into the property and begin residing there, and demanded that the plaintiffs vacate the property by 1 May 2020.

16. This conduct, the plaintiffs alleged, involved unconscionable conduct on Irene's part, so that they are entitled to a declaration that Irene's interest in the property is held on constructive trust for the plaintiffs’ sole benefit. Alternatively, Irene is estopped from repudiating what the plaintiffs called the common intention and denying that the plaintiffs are the sole beneficial owners of the property.

17. The plaintiffs pleaded, in the alternative to the primary declaration, that they sought equitable compensation for the loss they will suffer if they do not receive the beneficial ownership of the Georges Hall property and are ejected from possession of that property. In final submissions the plaintiffs valued the reasonable equitable compensation that they claimed at $800,000.

18. In the further alternative, the plaintiffs pleaded a quantum meruit claim in respect of the renovations that they made to the property.

19. Irene filed a further amended defence on 29 April 2021. Irene made some admissions and put the plaintiffs to proof of other matters, including the full extent of the renovations that the plaintiffs alleged that they carried out to the Georges Hall property.

20. In par 8 of the further amended defence, Irene pleaded that she did not agree to the plaintiffs' allegation of reliance and added: "as agreeing to such transaction would create a great injustice to the defendant's 2 daughters Georgina and Anastasia, and finds it an insult and completely unjust to give a property away to one daughter and her husband that has never been on good terms with her, and that is valued over $1,000,000 for just $100,000. The said property is a property she and her late husband have worked for all their lives."

21. Irene also pleaded a limitation defence that was not mentioned by her at the hearing, or relied upon in her final submissions.

22. Irene's case at the hearing was that she did agree to allow the plaintiffs to live in the Georges Hall property for an indefinite period while they brought their young children up and so that they could save money to buy themselves a permanent home, because of not having to pay rent or the mortgage repayments for their Macquarie Fields home. Irene denied that she agreed that the plaintiffs would become the beneficial owners of the Georges Hall property upon payment of only $100,000. Irene accepted that the plaintiffs had paid Anastasia the sum of $100,000 out of the proceeds of sale of the Macquarie Fields property. However, it was Irene's case that the payment of the $100,000 was a long-term loan that Helen volunteered to make to Anastasia.

23. It was accepted by the parties that, by hand-written letter dated 18 January 2020, Irene gave the plaintiffs notice to vacate the Georges Hall property by 1 May 2020.

24. Irene filed a cross claim on 5 November 2020. The principal relief claimed by Irene was an order that she be granted possession of the Georges Hall property as well as ancillary relief necessary to implement the order for possession of the property.

25. Irene also sought an order that the plaintiffs pay her a reasonable occupation fee in respect of the Georges Hall property from 2 May 2020 by way of mesne profits. Irene sought an order that the plaintiffs account to her for any rent collected by them in connection with the subletting of the granny flat attached to the property, but there was no evidence at the hearing that the granny flat had been sublet.

26. As a separate claim, Irene claimed judgment for the sum of $24,500 plus interest in respect of a loan of $25,000 that she claimed she had made to the plaintiffs, of which only $500 had been repaid. As to this loan, the plaintiffs admitted that they received the loan but alleged that they had repaid a further amount of $1,500, in addition to the $500 accepted by Irene, as well as further unspecified repayments out of Helen’s account that were “facilitated” by Anastasia.

27. At the hearing, the parties provided to the Court an agreed statement of issues in dispute that is consistent with the outline of the issues that I have set out above. The parties also provided to the Court an agreed chronology of significant events. It will assist in the explanation of these reasons if I set out the agreed chronology, as follows:

DATE	EVENT
10 January 1944	Irene Katsolos is born
1966	Irene marries Nicholas Katsolos in the Registry Office
30 January 1967	Irene and Nicholas marry in a Greek Church ceremony
30 April 1967	Anastasia Katsolos is born
13 August 1969	Helen Saitannis is born
16 November 1970	Georgina Katsolos is born
5 August 1971	Louis Saitannis is born
August 1978	Irene and Nicholas Katsolos purchase [the Georges Hall property]
14 December 2003	Helen and Louis are married
23 September 2005	Helen and Louis purchase [the Macquarie Fields property] for $357,000.00
Approx. August 2006	Helen and Louis move into the Macquarie Fields property and undertake renovations to the bathroom and kitchen
22 August 2006	Nicholas Katsolos dies
4 December 2006	Irene makes a will leaving the whole of her estate to Anastasia, Georgina and Helen in equal shares
Mid-2007	Helen and Louis undertake further renovations to the Macquarie Fields property by extending the laundry and a bedroom
12 December 2008-12 March 2009	Irene attempts to sell the Georges Hall Property
Mid-2009	Irene moves in with Anastasia
2009-2010	Louis carries out renovations at the Georges Hall Property prior to Helen and Louis moving in
Approx. September 2010	Helen and Louis exchange contracts for the sale of the Macquarie Fields Property
14 October 2010	Settlement of contract to sell Macquarie Fields property. The sale proceeds ($108,213.85) are deposited into Helen’s bank account.
14 October 2010	Helen and Louis move into the Georges Hall Property
Late 2010-2014	Helen and Louis carry out works and renovations at the Georges Hall Property which include renovating the granny flat, removing trees and concreting the backyard
20 October 2010	Helen withdraws $100,000.00 by way of a bank cheque and deposits the cheque into Anastasia’s home loan account
23 January 2012	Irene makes a will leaving her equity in the Georges Hall Property to Helen
2015	Helen and Louis carry out works and renovations at the Georges Hall Property which include concreting the backyard, installing synthetic grass, and installing an awning over the barbecue area
2015	Irene visits Helen and Louis at the Georges Hall Property and sees the new pergola
18 January 2020	Irene and Anastasia deliver a letter to Helen and Louis requesting them to vacate the Georges Hall property by 1 May 2020
11 March 2020	Irene makes a will leaving “all moneys held and/or invested in any bank or building society” to Anastasia, and the residue to Anastasia, Georgina and Helen in equal shares

28. The parties agreed that the value of the Macquarie Fields property as of 1 November 2021 was $825,000. The plaintiffs’ evidence was that the initial asking price for the Macquarie Fields property was about $400,000, but because of the difficulty that they had finding a buyer the property was ultimately sold for $350,000 in September 2010.

29. The parties also agreed that the value of the Georges Hall property as of 1 June 2009 was $500,000. By around November or December 2021 the value of that property was $1,600,000. If the property had not been renovated by the plaintiffs, it would have had a value at that time of $1,500,000. Consequently, the effect of the renovations carried out by the plaintiffs has increased the value of the property by $100,000.

30. A rental report was tendered by agreement between the parties so that, if the Court finds that Irene is entitled to an order that the plaintiffs pay her mesne profits from 2 May 2021, the appropriate rent to be used for the calculation of the amount payable will be agreed.

Overview of the dispute

31. The key to the proper determination of this dispute is the realisation that both sides of the record have propounded a version of the arrangement that they entered into that is at the extreme of the range of available interpretations of events and is most suitable to their interests. In taking that course, they have ignored significant aspects of the evidence and the logical probabilities that flow from that evidence.

32. As I have recorded above, the plaintiffs' version of the arrangement was that Irene represented to them that they would become immediate absolute beneficial owners of the Georges Hall property upon payment to Anastasia of $100,000, and that the reason they had to wait to obtain legal title to the property by way of a gift under Irene's will was that Irene suggested that this arrangement would save stamp duty that would otherwise be payable on an immediate transfer.

33. Irene, on the other hand, claimed that the arrangement was limited to possession being given to the plaintiffs for an indefinite period to enable them to live and raise their children in more comfort and closer to their relatives than they could enjoy living in their Macquarie Fields home, and so that, as a result of not being required to pay a mortgage or rent, they could save money to buy their own home. The period during which the plaintiffs could enjoy possession of the Georges Hall property was entirely indefinite, but appeared to be linked to the plaintiffs' young children being cared for and growing older and the plaintiffs' finances improving to the stage where they could afford to buy a suitable new home in reasonable financial comfort.

34. I make the preliminary observation that the plaintiffs pleaded, and their evidentiary case was, that the arrangement with Irene was made during two separate conversations, much as might have happened had the arrangement been an arm's-length agreement between strangers. I find that to be an improbable scenario, given Helen's acceptance of Irene's evidence that Helen and Irene had a close relationship as mother and daughter. Irene gave credible evidence that, after the death of Nicholas, she travelled to Helen's home frequently to help her care for her children, particularly during Helen's pregnancies. It is much more likely that whatever the terms of the arrangement were, they were discussed between Helen and Irene on numerous occasions. Irene's evidence of conversations with Helen on the subject of whether Helen and Louis should sell the Macquarie Fields home was (T 186.28-186.39):

A. INTERPRETER: There were too many conversations with Helen. Okay. So look, there were too many conversations with Helen. Helen was saying one thing one day, one thing the other, “What do you think, mum? Should I do this? Should I sell this?” We were - we were close - and sometimes I would tell her my opinion. I would not force her to do it.

Q. How many conversations were there in which the idea of Helen living at the Georges Hall property were discussed?

A. INTERPRETER: So I cannot give you an answer to this question how many times I’ve talked about it. We’ve been talking on the phone, it could be 100 times, it could be once. At this age I - I’m not going to be able to remember this because I don’t think that’s important.

35. Realistically, it is probable that the arrangement was discussed many times and evolved over time. As I said in a similar case, Spink v Flourentzou [2019] NSWSC 256 (affirmed on appeal in Flourentzou v Spink [2019] NSWCA 315):

[178]   … That is, that the parties discussed the proposal numerous times over a considerable period. The evidence does not extend to the substance of what was said in all of the conversations. That may be understandable, given the difficulty and expense involved in attempting to relate all of the conversations. However, the effect is that the evidence given is each party’s distillation of the substance of a great many conversations spread over a period of months. Almost inevitably, evidence given in this manner will reflect the particular witness' view or appreciation of the effect of the conversations. That understanding will be reached through the prism of the witness' self-interest and reflection upon what the witness believes was said, or must have been said, after a significant period of reflection on the consequences of the events that subsequently occurred. Unsurprisingly, the evidence given in response by Dianne and Mario took a similar structural form.

…

[180]   The most well-known extract from the authorities relevant to the proof of statements and arrangements made orally is probably the following, taken from the judgment of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (in the context of whether alleged statements were misleading and deceptive):

...Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

[181]   The problem that McLelland CJ in Eq so perceptively explained is amplified where the reality is that the same subject was discussed frequently by the members of a family, at a time of family unity, in different locations where, as the evidence shows was true in the present case, the parties were initially reluctant to make the arrangement, but persuaded themselves over time that it was safe and prudent for them to do so. It is almost certain that the proposal was put in different ways by the different parties using different words over the period, and that the proposal may have evolved in its substance and in the way that it was described by the participants. The participants were not contemplating making a clear, formal agreement that would be enforceable at law. It is likely that the participants used expressions intending those words to have a particular meaning and assuming that the others participating understood the intended meaning.

[182]   In these circumstances, the Court is presented with limited and distilled evidence from the perspective of the individual witnesses which is said to have given rise to an arrangement, whether that alleged in the paragraphs of the statement of claim, or that which is implied in the defence.

36. In these circumstances, the following considerations, as stated by Hallen J in Evans v Braddock [2015] NSWSC 249, and accepted by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [76], and by me in Meshumar v Otmy (2018) 97 NSWLR 615 at 623-5; [2018] NSWSC 125 at [41] and Perry v Perry [2021] NSWSC 1669 at [154] apply:

[74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].

…

[76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

…

37. In cases such as the present, the Court is much more likely to be assisted by an analysis of the objective evidence of what was done in carrying out a family arrangement and what the probabilities suggest the true arrangement between the parties was, than it is to try to decide who is the winner on the balance of probabilities in a contest to convince the Court that relevant conversations had one specific content rather than the content propounded by the opposing party.

Irene’s case

38. It will be convenient to consider first the probability that the arrangement between Irene and the plaintiffs was in the terms propounded by Irene. I consider it to be most improbable that the arrangement was limited to the narrow terms claimed by Irene.

39. I should first state my findings concerning the credibility of the evidence given by Irene. At the time she gave evidence, Irene was 78 years of age and described herself as an old, tired woman. Irene is a native Greek speaker and gave her evidence through an interpreter who was, I should record, an extraordinarily competent one. Irene has been living in Australia, however, for many years, and has a limited capacity to speak and understand English. Consequently, Irene could understand parts of the questions that were asked of her in cross-examination, and she frequently could not resist giving answers in English in competition with the interpreter. It appeared to me that in taking this course, Irene frequently did not understand the nuances of the questions that she was being asked, and her precipitate responses in English denied her the benefit of careful translation by the interpreter.

40. Irene was understandably highly emotional during her cross-examination, and she was clearly under nervous strain. I am satisfied that Irene was a generally honest witness, at least in the sense of giving her evidence in accordance with her real perceptions and recollections. However, it became clear that those perceptions and recollections were not always reliable. Furthermore, Irene was not, with respect, intellectually sophisticated and on a number of occasions she gave explanations or responses that were quite illogical. In the circumstances, I have not thought it necessary to reject Irene's evidence generally, but it has been necessary to treat it with considerable caution.

41. Many aspects of Irene's evidence rang true, particularly when she was recounting the more prosaic aspects of her dealings with the plaintiffs. I have set out above part of the defence pleaded by Irene to par 8 of the plaintiffs' statement of claim. I repeat that Irene pleaded that she "finds it an insult and completely unjust to give a property away to one daughter and her husband" which would create "a great injustice" to Anastasia and Georgina. It is highly likely that Irene has responded in her own mind to the claims now made by the plaintiffs in a way that has coloured her recollection of events in a way that is supportive of her present case.

42. Anastasia appeared to give her evidence in a satisfactory way, although the circumstance that her evidence was given by audio-visual means limited the Court's capacity to assess the credibility of her evidence by reference to her demeanour. The plaintiffs made complex submissions as to why the Court should not accept Anastasia as a witness of truth, by reason of various objective matters that were said to be inconsistent with the evidence that she gave. I do not think it is necessary to attempt to rule on all the plaintiffs' submissions, as the evidence was not sufficiently distinct to make it safe for the Court to determine Anastasia's credibility as a witness on that basis. It is sufficient, however, for me to say that, as will be seen, I have not accepted the principal aspect of Anastasia's evidence, being that $100,000 paid to her by Helen was paid as a loan that Helen insisted upon making and Anastasia resisted.

43. There are four principal reasons why I am unable to accept that the arrangement between the parties was on the terms propounded by Irene. The first is the objective fact that, having made a will on 4 December 2006 in which she left her estate to her three daughters in equal shares, on 23 January 2012 Irene made a will leaving the whole of her interest in the Georges Hall property to Helen. Given that the evidence clearly justifies a finding that Irene loved and cared for her three daughters equally, there must have been a special reason why Irene decided to leave the Georges Hall property solely to Helen. The only reason for such an extreme step that is available on the evidence is that the arrangement between the parties at least required that Irene take that step.

44. Irene offered an improbable explanation for why she decided to leave the Georges Hall property solely to Helen: see par 206 of her primary affidavit and (T 129.24-131.9). That explanation was that her other two daughters' marriages had failed and they were divorced, which was a matter of considerable shame to Irene in the Greek community in which she lived. Irene believed from her interactions with the plaintiffs that there was a real risk that Louis would separate from and divorce Helen, which would have exacerbated Irene's shame. Irene said that she decided to leave the Georges Hall property to Helen as the belief on Louis's part that Helen would inherit a valuable property would reduce the risk that Irene would suffer the ignominy of having three divorced daughters. However, Irene insisted in cross-examination that she did not tell either Helen or Louis about the terms of her will, and she went so far as to say that it was normal for beneficiaries to learn of the terms of a will only when it was read after the death of the testator. Clearly, this explanation is completely illogical for the obvious reason that the terms of the will could not have reduced the risk that Louis would separate from Helen if neither Helen nor Louis knew of those terms.

45. The second reason is the explanation given by Irene and Anastasia between them of the basis upon which Helen paid $100,000 into Anastasia's home loan account on 20 October 2010. Irene's evidence was that there was no discussion at all between her and the plaintiffs about the payment of $100,000 during the conversations that led to the arrangement between Irene and the plaintiffs. In her affidavit at pars 26-36, Anastasia claimed that Helen volunteered to lend the money to Anastasia, as Helen and Louis were moving into the Georges Hall property rent free. Anastasia claimed that she told Helen: "I am okay for money and I am managing my mortgage on my own." Helen responded: "I insist you take the money. It is not a gift; it is a loan and it's my money I saved for the deposit on the Macquarie Fields house." Anastasia claimed that she told Helen that when Helen was ready to buy her own home, Anastasia would reciprocate and give the $100,000 back.

46. While this point is not as clear a reason for rejecting Irene's version of the arrangement as the previous one was, I consider that it is improbable that the $100,000 was paid for the reason claimed by Anastasia. It is also improbable that Helen did not discuss the payment of the $100,000 with Irene. The sale of the Macquarie Fields property took place on 14 October 2010 and the sale proceeds deposited into Helen's bank account were $108,213.85. The $100,000 was paid into Anastasia's home loan account six days later. It is likely that the transactions were related, as Helen and Louis moved into the Georges Hall property on 14 October 2010. It is also, in my view, highly improbable that Helen insisted that Anastasia accept a loan of $100,000, leaving Helen with $8,213.85, if the circumstances were that Anastasia said she did not need the money and it is likely that Helen and Louis would have benefited from retaining a contingency fund of over $100,000.

47. The third reason why I am not prepared to accept Irene's version of the arrangement is that, according to her, a primary purpose of the arrangement was to enable Helen and Louis to save enough money to be able to buy their own home. However, Helen and Louis already had their own home at Macquarie Fields, which had, as it turned out, a market value of $350,000 and an equity of $108,213.85. Helen's evidence was that she was ahead in her mortgage repayments, and that because of renovations undertaken by Helen and Louis, the Macquarie Fields home was suitable for their purposes. This was an issue contested by Irene, who claimed that Helen had frequently complained about the inadequacy of the Macquarie Fields home for her expanding family, and that it was not in a salubrious location, given in particular that she was left at home at night because Louis worked night shifts.

48. The objective evidence is not sufficient to enable the Court to decide with confidence what the true position was concerning the suitability of the Macquarie Fields home. The detail of the evidence is also not sufficient to persuade me that Helen and Louis would have considered the better course was for them to give up the existing home that they owned, pay almost all of the equity they had to Anastasia, and then move into the Georges Hall property with their children on the basis that that only gave them an indefinite right of possession.

49. The fourth reason why I am not prepared to accept Irene's version of the arrangement arises out of the evidence given by Helen and Louis of the nature and extent of the renovations that they undertook on the Georges Hall property. Although the expert valuation evidence was that the renovations only added $100,000 to the value of the property as at the date of the hearing, it may be that the renovations cost more than that amount and that the cost does not include a considerable amount of labour undertaken by Louis. It is probably not possible on the evidence to determine an accurate cost of the renovation works, but I am satisfied that they are of a nature that is consistent with the expectation of the plaintiffs that they would at least be entitled to enjoy possession of the property with their family for a substantial, if not indefinite period. The renovations are consistent with the plaintiffs doing their best to make the Georges Hall property their family home.

50. In her evidence, Irene consistently attempted to downgrade the significance and extent of the renovations, to claim that the renovations were unnecessary and carried out without her approval, and to assert that the major part of the renovations was undertaken behind her back and without her knowledge. I am satisfied from the evidence given by Helen and Louis, and the other members of their family who gave evidence, that Irene was aware of and approved at least a major part of the renovations. I do not think it is necessary to set this evidence out in detail. The evidence was episodic, which is understandable, because members of the family would only be present in the one place for special occasions. I am satisfied that Irene understood the significance of the renovations having been carried out to the plaintiffs' case, and this has caused her to understate her knowledge and approval of those renovations.

Helen and Louis’ case

51. I now turn to consider the plaintiffs' case as to the terms of their arrangement with Irene. I should first say that I found the plaintiffs to be generally satisfactory witnesses, particularly in relation to their evidence concerning the objective historical facts. The position is not so clear in relation to their evidence of the representations that they say constituted their arrangement with Irene. I have no reason to find that the plaintiffs did not attempt to give honest evidence of their recollections of the conversations. However, I have already said that I am not prepared to accept that there were only two relevant conversations, at least as between Helen and Irene. It may well be that Louis was only present at a limited number of conversations at the end of the process of discussing the arrangement. The essential reason why I am sceptical about the accuracy of the plaintiffs’ summation of the conversations is the one that I have given above about the inherent uncertainty of recollection by interested parties in this context.

52. I should add for completeness that there was no apparent reason for the Court not to accept the substance of the limited evidence given by the plaintiffs' other witnesses. That evidence primarily concerned Irene's knowledge and approval of the renovations of the Georges Hall property. I have explained above why I do not think it is necessary to examine that evidence in any detail.

53. The plaintiffs' case as to the real terms of their arrangement with Irene also did not survive the hearing. When parties to family arrangements give evidence that the arrangements were made in a small number of precise conversations, it is, as I have observed above, probable that the evidence represents the parties' distillation of numerous conversations within the family concerning an important change to the family's affairs. When the evidence of the conversations is given succinctly with all commas and full stops in the right places, it is probable that the evidence represents the 'best' recollection that the parties can express in evidence – sometimes improved by careful professional assistance.

54. As evidence in this form is likely to represent the best case the party giving the evidence can muster, it may be fair to hold the party to that evidence.

55. Helen gave the following evidence concerning the making of what she called the representations in her primary affidavit:

21   In about mid-2009, I received a telephone call from Mum, and we had a conversation to the following effect:

Mum:   I have something important to talk to you and Louis about, but I prefer to come and see you both in person.

Me:   You can come over today and talk to us if you like.

22   Later that day, Mum visited Louis and I at the Macquarie Fields Property. After Mum arrived, the three of us sat down together and had a conversation to the following effect:

Me:   Mum, what is it you wanted to talk to us about?

Mum:   I want to make an offer to you both.

Me:   What is it?

Mum:   I've given Anastasia and Georgina lots of help over the years. I’ve helped them pay for their weddings, for renovations, holidays and bills. (sic) and also looking after their kids. Helen, you are the only one that I haven't helped and you have always been there for me with anything that I needed, so now I'd like to help your family. If you pay Anastasia $100,000 and (sic) I will give you both the house.

Me:   Wow, I don't know what to say. I think Louis and I will need to think about it. We’ve spent some (sic) much time and money renovating our house, so it's a big decision.

Mum:   That's fine, I have already spoken to your sisters and they are both happy with it.

…

25   Louis and I decided to accept Mum's offer. The next day, I called Mum and had a conversation with her to the following effect:

Me:   Hi Mum, can you come over today so we can talk?

Mum:   Yes, of course, I will come soon.

26   Later that day, Mum came over to the Macquarie Fields Property and had lunch with Louis and me. During lunch we had a conversation to the following effect:

Me:   Mum, Louis and I have decided to accept your offer. We are honoured to.

Mum:   Congratulations, you've made me very happy. This is what I wanted, for us to be closer.

Me:   What's going to happen with transferring the house?

Mum:   Instead of transferring the house I will leave it to both of you in my Will. That way you won't have to pay stamp duty. You can spend that money on renovations instead.

Me:   Okay, we need to sell our house to pay the $100,000.00 to Anastasia.

Me:   Okay, I understand.

Louis:   I need to have a look around the house to see what work needs to be done.

Mum:   I will give you the keys.

27   When Mum told Louis and I that she would leave the Georges Hall Property to us in her Will rather than transfer it into our names, I believed that Mum was just trying to avoid incurring fees such as stamp duty. My understanding was that even though the Georges Hall Property would be in Mum's name, the real owners would be Louis and myself. I assumed that Louis and I would be the ones entitled to be on the title to the Georges Hall Property once we paid $100,000 to Anastasia. I also assumed that Mum was going to change her Will, so that the Georges Hall Property transferred into her [error for our] names when she died.

56. The evidence given by Louis in his primary affidavit was to the same effect, although understandably not in identical terms. I will only set out the most relevant parts of Louis's evidence of the conversations with Irene. The first conversation, set out in par 18 of Louis's affidavit, included:

…

Irene:   I'd like to say, I have helped both Anastasia and Georgina a great deal over the years with their weddings, holidays, renovations and bills. Helen you have been the only one to help me with bills and anything that I needed. You have always been there for me.

Helen:   Of course, Mum.

Irene:   The only daughter I hadn't really helped is you Helen. So, my offer to you both is that if you can pay $100,000.00 to Anastasia, which she has agreed to, then the house will be for you both. You have my word on that. Anastasia won't have a claim over the house, you have my word on that.

Louis:   What about Georgina mum?

Irene:   Look, just like Anastasia, I have helped Georgina over the years as well, with her wedding, holidays and all that, it was paid for by me. Look, Georgina will get whatever savings I have in the bank, that would be her share. Georgina will be taken care of by my savings in the bank. That is why if you can pay to Anastasia $100,000.00, then the house will be for the both of you. After all, I need to help you both out now, while I still can and while I am still alive not when I pass away. I want to be able to provide something now. Look, if you accept my offer, I will make sure the house will be for the both of you.

…

57. In relation to the second conversation, Louis's evidence in par 26 was in the following terms concerning the proposal that Irene would leave the Georges Hall property to the plaintiffs in her will:

…

Irene:   Look, I'm not going to transfer anything now. I will take care of it in my will. I will make sure the house goes to the both of you.

Louis:   Makes sense to do it in a will, that way we won't have to spend money on stamp duty and can spend it on renovations. We now have to sell our house to come up with the money to pay Anastasia, as we don't have $100,000.00 lying around in the bank.

…

58. Perhaps the most significant feature of the evidence given by the plaintiffs concerning what Irene said she would do is that Irene did not say words that conveyed the meaning that the ownership of the Georges Hall property would be transferred immediately to the plaintiffs. In his evidence of the first conversation, Louis said that Irene said on three occasions, words to the effect of "then the house will be for the both of you", which is apt to describe an event that will occur in the future. In the second conversation, Louis said that Irene said: "I will make sure the house goes to the both of you." Helen's evidence of the conversation is more equivocal in that she said that Irene said on the first occasion: "and I will give you both the house". However, on the second occasion, according to Helen, Irene said: "Instead of transferring the house I will leave it to both of you in my Will."

59. These observations are not conclusive as to the true effect of the plaintiffs' evidence concerning the statements they claim were made by Irene, but on balance they support a conclusion that what Irene was really offering was to leave the Georges Hall property to the plaintiffs in her will. That is not a satisfactory explanation of the whole of the arrangement, because the evidence makes clear that Irene gave the plaintiffs possession of the Georges Hall property from the time that they paid the $100,000 to Anastasia.

60. The following observations may be made about the plaintiffs' evidence of these conversations. First, the suggestion is that Irene volunteered to give the plaintiffs the Georges Hall property in return only for a payment of $100,000 to Anastasia. As the agreed valuation evidence is that the property was worth $500,000 at the time, if this promise was made, it involved Irene making a gift of $400,000 to the plaintiffs.

61. The plaintiffs’ evidence was that Irene volunteered this gift because she had already made gifts to Anastasia and Georgina, and her purpose was to even up her treatment of her three daughters. There was no evidence that Irene had made gifts to Anastasia and Georgina of an aggregate value anywhere near $400,000. The evidence did not make the position clear, although it appears that Irene permitted Georgina and her son to live in the granny flat at the Georges Hall property from between about 1999 and 2010. It is inherently unlikely that Anastasia and Georgina would have agreed to Irene disinheriting them by bequeathing her only substantial asset solely to the plaintiffs.

62. Having received evidence from Irene concerning her personal history, and having had the benefit of observing her during a lengthy cross-examination, I find that it is extremely doubtful that Irene would have suggested that she transfer the Georges Hall property to the plaintiffs by will in order to avoid the payment of stamp duty. I note that while it was Helen's evidence that Irene raised the issue of avoiding stamp duty, Louis's version of the second conversation was that he was the one who suggested that it would make sense to transfer the property by will as it would avoid the payment of stamp duty.

63. The effect of the plaintiffs' case – that Irene represented to them that they would be the immediate, sole owners of the Georges Hall property – would, if true, be that a 64-year-old woman, who had lost her husband three years earlier, and who was pensioner, had voluntarily transferred the beneficial ownership of her only substantial asset in a way that made her homeless, and dependent upon the good will of Anastasia and Helen, as Georgina did not have the capacity to look after her mother.

64. According to Irene's affidavit evidence, which was not contradicted, she came from a farming family in Greece, and in her youth worked very hard tilling the soil, picking grapes and digging. She left her village at the age of 18 to study English. She came to Australia on a ticket paid for by the Commonwealth government "with only a dress, a pair of shoes and my mum and dad's wise words." She studied hospitality in Greece and learnt enough English to survive before she came to Australia. She arrived in 1963. Irene gave evidence of an onerous migrant working existence in this country. Irene spent much of her working life working in cafés and restaurants.

65. Irene and Nicholas purchased a property at East Hills. Irene's evidence was that they had a first mortgage charging 18% interest and a second mortgage at 22% interest. Irene said in par 51 of her affidavit of 28 May 2021:

51.   I didn't understand about mortgages as neither Nick nor I had been educated in that area. I used to cry, when I counted the money on the floor and Nick would give me support and encouragement and would say to me, "Don't worry, one day we will pay off our house and go on a holiday to Greece together," but it never happened.

66. Irene and her husband sold the East Hills property in about 1978, which was the year in which the Georges Hall property was acquired for a price of $60,500. Irene gave evidence of the work done by Irene and Nicholas in renovating the property.

67. Irene had a hip replacement on 26 November 2009 and was discharged from hospital six days later. She needed someone to assist her to do her day-to-day duties, so Anastasia offered to let Irene move into her home so she could provide Irene with full-time care.

68. At the time of the conversations alleged by the plaintiffs, Irene was an ailing sixty-five-year-old widow who was still grieving her husband, who spoke only limited English, was unsophisticated in her commercial dealings, and, by reason of her ailments, she was dependent for care on one of her daughters.

69. This case does not directly raise the issue of whether it would have involved unconscionable conduct on the plaintiffs' part if they had made an arrangement with Irene that they would receive immediate, absolute beneficial ownership and possession of the Georges Hall property for a payment of $100,000 to Anastasia and no payment to Irene. However, these considerations would be relevant to the determination of the relief that would be equitable for the Court to give to the plaintiffs against Irene, if the plaintiffs established that the arrangement was in the terms for which they contended.

70. The proposition that the plaintiffs' version of the arrangement was that Irene had immediately divested herself of her only home and substantial asset for no reward, in circumstances that made her dependent for a roof over her head on the good will of her daughters, was so obviously problematic that counsel for Irene was moved to cross-examine Helen to suggest that those aspects of the alleged arrangement were so extreme as to require a rejection of the plaintiffs' claims. It will be appropriate to set out relevant parts of the cross-examination at length, as they contain a significant revelation for the purposes of the resolution of this dispute.

71. First, at (T 21.9-21.20):

Q. What did you understand to be the reason that your mother moved out of Georges Hall in the middle of 2009?

A. Well, it wasn’t - it was just temporary; it wasn’t permanent because my husband had to restructure the whole house, so being asthmatic; there was carpet there. He needed to remove lots of doors and sort out all the cracks cause the structure of the house was not in good condition. It was an old house, it had a basement, it was like a cellar, it was situated with - with clay, so there - the foundation of the house was not very safe. So he had to basically remove things in the house. There was lots of doors, windows. Like I said, he had to do a whole inside, change all - get the electrician to change all the electrical, and just do it all nice and modern and fresh because it was a very aged, dated house.

72. Secondly, at (T 21.32-21.43):

Q. I asked you what was your understanding as to why your mother moved out in the middle of 2009 to live with your sister. What did you understand was the reason for that?

A. Well, I couldn’t have my mother with her asthma and her in the surrounding of the house with it all dust, and everything needed to be removed, everything needed to be repaired. So it wasn’t a very safe environment.

Q. See--

A. So my husband said, you know, like - my mum - I - I’m not sure what really what - what was said, but I’m pretty sure my mum said she’ll have to vacate at my sister’s for that temporary time. Clearly she couldn’t be upstairs with all the construction and all that going on, all the renovation going on.

73. Thirdly, at (T 30.50-32.9):

Q. No, what I put to you is your mother got nothing out of it - it was your sister that got the $100,000. That’s the proposition you are putting as your case, isn’t it?

A. No.

Q. I think you’re misunderstanding, Mrs Saitannis.

A. Do you want me to elaborate?

Q. Well, no, just coming back - you say that your mother made a promise. First of all, that’s right? Is that what you’re saying? In mid--

A. What was the last point?

Q. --in mid-2009, your mother, you say, came to your place and made you a promise.

A. An offer, yes.

Q. All right, an offer.

A. Yes.

Q. And the offer was that she was giving you the house at Georges Hall - that’s what you say, isn’t it?

A. Providing we pay Anastasia $100,000.

…

Q. But in that arrangement, your mother got nothing out of the offer and acceptance, did she?

A. Well, she - she got a - a granny flat that was designed and renovated for herself, for her to live in.

Q. When was she going to live in that?

A. Well, once it was completed because my husband couldn’t do all - everything all in one hit. I mean, it’s a big block of land.

Q. Sorry, are you saying that there was some conversation in relation to your mother living in the granny flat at some point in time? Is that what you’re saying?

A. Well, over the - when the house was being renovated in 2009, yes, we had to cut the whole flat, it was disgusting, it was cockroach infested, floorboards were lifted up. It was a block toilet outside - it was an outdoor toilet. And it was a lot of work - outside and the granny flat.

And we said, “We’ll fix the granny flat, make it, like, for her disability” - which we did, we had everything lovely and - and renovated for her, safe, we supplied handrails and everything, kitchen, everything. But she didn’t want to come back - she said she’s comfortable at my sister’s house.

74. Fourthly, at (T 32.33-32.39):

Q. So are you saying there was some discussion - even before your husband did any renovations or any work on the granny flat, are you saying before that, there was some discussion with your mother about coming to live in - let me finish - coming to live in the granny flat? Before--

A. Well, we did say that she was going to live in the granny flat. We were going to - we were going to renovate it. I mean, she - she heard that, she knew that.

75. Fifthly, at (T 36.28-36.46):

Q. Why didn’t you refer to the conversation you say you had with your mother about her moving back into the granny flat. Why did you not mention that?

A. Because I’m - I - I knew that she would come back to the granny flat because the purpose was to fix the granny flat for her. That means - that’s - that’s what I wanted to do, and my husband wanted to do to, you know, appreciate my mum you know, she was my mum, and you know, for all the - the beautiful things that’s she’s done for - for us and in my life. I mean who - who would not want to build a nice granny flat for my mum, and especially with her disability. I mean, it was my husband and I’s idea that we’ll fix it nice for her. I mean I don’t there’s anything wrong about that.

Q. I’m not saying here’s necessarily anything wrong Mrs Saitannis, what I’m asking you is why you made absolutely no reference to that in your affidavit, and you’ve got no explanation have you?

A. Well, because we knew it was going to be the plan, like that - the plan was to fix the granny flat. I mean we - we’ve had the discussion, but maybe I just over - over - didn’t think about putting it in writing because we’re pouring our heart, and out you know, our paying the money to fix it. I mean we weren’t gonna leave the granny flat not fixed, for her. Like - it just don’t make sense.

76. And finally, at (T 37.12-37.18):

Q. Was that part of the offer that was made back in mid-2009?

A. Well, when she’s referring to the house - the house, the property has got the granny flat, so yes. We - we put over everything that was on the actual property. I mean we had to think that we had four kids, I mean yes, I want the kids to enter and say hello to their grandmother, I mean - it’s their grandmother and yes, we had to fix the outside which was a lot of work. It was a maze, it was trees, it was dangerous, I mean it was hard yakka.

77. This evidence was apparently so inconsistent with Irene's case that counsel challenged Helen with the riposte (T 32.11 and 34.16) that there was nothing in Helen's affidavits about agreeing with Irene that she would move back into the Georges Hall property after the granny flat was renovated. Counsel suggested to Helen that her evidence was a reconstruction (T 33.35 and 37.20), and Helen's ultimate response was (T 37.10): "I may have forgotten. I’m human, I may have forgotten."

78. The evidence that counsel elicited may not have suited Irene's case, but to my mind it was completely credible, and provides a rational basis for understanding the true arrangement between the plaintiffs and Irene. On the plaintiffs' case, they accepted an offer by Irene to give them the Georges Hall property worth $500,000 for a payment of $100,000 to Anastasia but nothing to Irene, and left Helen's aged and infirm mother homeless save for the good will of her daughters. The arrangement is much more explicable, and in good conscience, if the proposal was that the plaintiffs would renovate the granny flat and care for Irene while she lived in the granny flat for the balance of her life. If that were the arrangement, it would be more explicable why Irene would have considered it fair to her other daughters to leave the Georges Hall property solely to the plaintiffs in her will.

79. Based on the whole of the evidence, I could not find that the plaintiffs have made out their case concerning the terms of the arrangement that they made with Irene, without adding the additional component that Helen disclosed for the first time in cross-examination.

80. My judicial experience is that it is common for parties and their lawyers to propound relatively extreme versions of the cases that may be available to them, when a careful and sober consideration of the evidence and the probabilities would lead them to understand that the true legal position lies somewhere between the extremes propounded by the parties. In some cases, the adoption of mutual ambit positions may not lead to forensic disadvantage, but in other cases, the effect will be that the parties do not lead the evidence necessary to properly contest the middle ground where the just legal outcome of the case is likely to be found. In the present case, the parties remained in their chosen trenches throughout the hearing, and did not address in any meaningful way the reasons why what I have found to be the real arrangement between the plaintiffs and Irene was never implemented.

81. Helen's evidence on the subject was the following snippet (T 34.20-34.36):

Q. But don’t you accept that that is an important part of your case, that the arrangement was going to be that she would move into the granny flat after the renovations were done? Isn’t that an important part of your case?

A. Well, in writing, yes. But we’re a family, and she knew - she knew that she had to vacate at my sister’s so we can do the next part. Like, we - we couldn’t have her from 2009 living in there while Louis was fixing it, and then once we moved in we kept on - like once the - the flat was completed we said to her, “Are you ready to come?” We - we were asking her numerous amounts, “Come back. You want to see the grandkids; you want to help out? Come back. Come back.” And she just kept on refusing, “No, I’m comfortable. I’m comfortable here. I don’t want to get involved in your married - in your marriage,” in the Greek terminology.

Q. Well, then why do you not refer to any of that in your affidavit? Why?

A. Because I knew my mum was meant to come back, and she knew that she was meant to come back to her granny flat. I mean, we’ve discussed it; we were discussing it throughout the whole renovation stage.

111. Having regard to the request made by senior counsel, I propose to publish these reasons and give the parties an opportunity to confer and to deliver further written submissions on the form of the relief that should be granted, based upon the findings that have been made in these reasons. I do not know whether there remains any possibility for the parties to salvage some mutually acceptable resolution of the dispute that does not depend upon the choice made by the Court.

112. In the circumstances, it is not necessary for the Court to deal with the plaintiffs' alternative quantum meruit claim. Although the evidence given by the plaintiffs about the nature and cost of the renovations that they undertook was sufficient to sustain their equitable proprietary estoppel claim in part, it may not have been sufficiently precise to establish the reasonable cost of the works.

113. As Irene has not succeeded in her cross claim in establishing a right to possession of the Georges Hall property from 2 May 2020, she has not established a right to an order against the plaintiffs for an occupation fee for that period. Irene's rights in relation to possession of the property will be subsumed in the relief that the Court ultimately grants in respect of the principal dispute between the parties.

114. In relation to Irene's claim for an order that the plaintiffs repay her a debt of $24,500, I have noted above that, in the plaintiffs' defence to Irene's cross claim they pleaded that they had repaid $2,000 plus additional unspecified repayments. Irene accepted that an amount of $500 had been repaid, but it was Helen's evidence that she had made two payments of $500 (T 30.1). If Helen's evidence is accepted, the amount of the debt outstanding is $24,000. Although the evidence on both sides is mere assertion as to the amount repaid, I prefer the evidence of Helen as she was generally the more reliable witness. Accordingly, the plaintiffs should be ordered to repay Irene the sum of $24,000.

115. It will be necessary in due course for the Court to deal with the issue of costs. The parties should make submissions on that issue in conjunction with their submissions concerning the appropriate relief that should be ordered. The parties should bear in mind that, even though the plaintiffs will succeed in obtaining substantial relief, the outcome of the proceedings is likely to be one of approximate equality of result. No party embraced the evidence that was available concerning the mutual representation of the plaintiffs that Irene could return to live in the granny flat and be cared for by the plaintiffs. On the one hand, the Court's acceptance of that evidence prevented the plaintiffs from obtaining the relief that they sought, but also absolved them of the possible consequences of unconscionable conduct in making the arrangement with Irene on the terms contended for by the plaintiffs. On the other hand, the Court's acceptance of the evidence will have been a significant factor in Irene having achieved the degree of success in these proceedings that she will have achieved when the final orders are made.

**********

Amendments

27 October 2022 - Correction to name in paragraph 64

Decision last updated: 27 October 2022