Sakellis v Vourlos

[2019] NSWSC 1063

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Sakellis v Vourlos [2019] NSWSC 1063
Hearing dates:	13 and 14 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Judgment for the plaintiff for possession of land at 578 Pittwater Road, North Manly, with leave to issue a writ of possession forthwith
Catchwords:	ESTOPPEL – proprietary estoppel – estoppel by representation – where plaintiff provided accommodation for niece and family including defendant husband – whether representation that defendant would have accommodation for life – after passing of niece defendant relocated to a second property owned by plaintiff – plaintiff claiming possession of second property – defendant claiming alteration of position – surrender of lease of assisted accommodation – representation not proved – occupation of second property permissive and terminable on reasonable notice
Cases Cited:	Sullivan v Sullivan [2006] NSWCA 312
Category:	Principal judgment
Parties:	Angela Sakellis - plaintiff Constantine Vourlos - defendant
Representation:	Counsel: J Young - plaintiff T Liu - defendant Solicitor: Sparke Helmore Lawyers - plaintiff Clayton Utz - defendant
File Number(s):	2018/177144
Publication restriction:	No
Decision under appeal	File Number(s): 2018/177144

Judgment

1. The plaintiff is the registered proprietor of a two storey, six bedroom freestanding house at 578 Pittwater Road at North Manly. The property has been occupied by the defendant, alone, since July 2015. The plaintiff claims possession of the property. The defendant resists that claim upon the basis of an alleged proprietary estoppel. He contends that in early 2009 the plaintiff represented that she would provide him with a house rent-free for the remainder of his life. He claims that in reliance upon alleged statements to that effect he altered his position in such a manner that it would now be unconscionable for the plaintiff to be allowed to renege.

2. The long chain of events leading to the defendant’s occupation of the North Manly property began with his marriage in 1986 to the plaintiff’s niece, the late Antonia Vourlos (née Sakellis). From April 2009 the plaintiff allowed her niece, the defendant and their two children to occupy rent-free a house she owns at 11A Edgecliffe Esplanade, Seaforth. Antonia Vourlos died on 29 July 2010. Thereafter the plaintiff permitted the defendant and the two children to remain in the Seaforth house, still not charging them rent. In July 2015 disharmony between the defendant and his son caused the plaintiff to offer the defendant temporary accommodation in the North Manly property, again rent-free. This offer was accepted and the defendant has lived at North Manly ever since, while his son has remained at Seaforth.

3. Relations between the plaintiff and the defendant broke down in late 2017 and the plaintiff asked the defendant to vacate. He has refused. Resolution of the defendant’s proprietary estoppel claim depends upon the detail of this history.

Estrangement of the plaintiff and her niece, 2000-2008

4. The defendant was born in 1940 and is now 79 years old. Antonia Vourlos was considerably younger than the defendant, having been born in in the mid-1960s and aged in her early 20s when they married. Her father was Emanuel Sakellis, the plaintiff’s brother. The defendant and Antonia Vourlos had two children together, Sebastian born in 1991 and Sophie born in 1993.

5. In about 2000 a serious rift developed between Antonia Vourlos on the one hand and, on the other hand, her father, Emanuel Sakellis, the plaintiff, Angela Sakellis, and their mother. Antonia Vourlos’ biological mother had left her husband and children when the children were very young. In about 2000 Antonia Vourlos expressed a desire to re-establish contact with her mother, which was met with strong hostility from her father, aunt (the plaintiff) and grandmother. The result was that the plaintiff had no contact with Antonia Vourlos or the defendant or their children from 2000, for approximately eight years.

6. From about 2003 Antonia Vourlos suffered a severe immune system disorder with respiratory complications including pulmonary embolism. She required frequent hospital treatment. The defendant worked as a tradesman painter until his retirement sometime between 2000 and 2004, when he was in his early 60s. On 28 June 2004 he applied to the NSW Department of Housing for subsidised accommodation for the family. By the date of that application the defendant’s only income was a Commonwealth welfare benefit. In October 2004 he was declared bankrupt.

7. Commencing from 7 February 2007 defendant secured for himself, Antonia Vourlos and their children a three month lease of accommodation at North Ryde at subsidised rent. The lease would be renewable continuously if there were no significant breaches of its terms. The lessor was Ryde Hunters Hill Housing Cooperative Pty Ltd, a company that leased modest accommodation at low rent and received subsidies from Commonwealth and State government agencies. There had been a wait of two and a half years from when the defendant made his application until this assisted accommodation became available. The initial rent was $127.50 per week. This increased to $185.45 at the end of 2008.

Reconciliation of the plaintiff and Antonia Vourlos, late 2008

8. In late 2008 another relative, Josephine Sakellis, contacted Sophie Vourlos through an online social network. This led to the plaintiff and Josephine Sakellis meeting with Sophie at a shopping centre. The plaintiff had been aware that Antonia Vourlos was unwell prior to their estrangement but at this meeting she was informed that the position had worsened. The plaintiff asked Sophie whether she could visit her mother. Both the plaintiff and Sophie Vourlos recall these events in substantially the same terms and I accept their evidence. A phone call was made to Antonia Vourlos immediately and she agreed that the plaintiff could come to see her. The plaintiff drove Sophie from the shopping centre over to the house at North Ryde for her first meeting with Antonia Vourlos in eight years.

9. By that date the defendant was 68 years old. Antonia Vourlos was in her early 40s and she was terminally ill. She was wheelchair-bound and mostly housebound. Her breathing had to be supplemented with oxygen delivered from a gas bottle through a facemask. It is not clear on the evidence for how long her health had been in this very poor state but it appears to have been so for at least several years. In late 2008 the two children were still in high school. Sebastian was aged 17 and about to commence his final year. Sophie was aged 15.

10. Sophie Vourlos deposed that she was present at this first renewal of contact between her mother and the plaintiff. She observed that the plaintiff was “visibly shocked” by her mother’s physical appearance and “gave my mother a hug and kiss and they shared a long embrace”. Sophie Vourlos was not available for cross-examination. Her affidavit was read without objection, upon the express reservation of the defendant’s counsel’s that less weight should be attached to it than would be the case if testing by cross-examination had been possible. I accept that approach. Where Sophie Vourlos’ affidavit is inconsistent with the defendant’s evidence I do not treat that as a factor in determining whether to accept the defendant. As explained below, there are independent reasons for rejecting the defendant’s claim that no engagement occurred between the plaintiff and Antonia Vourlos on this first visit. Sophie Vourlos’ description of the meeting is consistent with the plaintiff’s account, which I prefer over the defendant’s. There is no reason to doubt Sophie Vourlos’ deposition in this respect.

11. The plaintiff has deposed that she and Antonia Vourlos “gave each other a hug and kiss and I recall that she was very happy to see me”. The plaintiff’s immediate impression was that her niece had lost a great deal of weight, was pale and fragile and had not long to live. The plaintiff felt great regret upon realising that the long estrangement had prevented her from doing anything to support her niece during the advance of her illness. She was saddened at the thought of Antonia Vourlos’ imminent death, so young. I accept the plaintiff’s evidence regarding all of these aspects of the encounter.

12. After this first visit the plaintiff returned to see her niece at the North Ryde house on three or four occasions in late 2008 and early 2009. The affidavits of both Sebastian and Sophie Vourlos confirm these additional contacts. Sophie Vourlos has deposed that there were also phone calls between the two during this period, which again I accept. I accept the affidavit evidence of Sebastian Vourlos that the plaintiff hosted the family at her home in Balgowlah Heights on Christmas Day 2008.

The plaintiff’s offer of the Seaforth property and its acceptance

13. During her visits to the North Ryde home the plaintiff observed that it was of small proportions with no outlook. The house was not air-conditioned. The plaintiff thought it was an “awful place for somebody to be who was very, very sick”. The plaintiff “wanted her to be in a place that was nice”. The plaintiff was at that time aged 61 years and was financially comfortable. The evidence does not disclose the full extent of her assets or income but, at least, she owned the house at Seaforth that was surplus to her own accommodation requirements and she drove a late-model imported European car. On about the third or fourth visit she said to Antonia Vourlos, while speaking with her alone:

Antonia, are you happy living at your house? I may have a house that you and your family could move to. It has a very nice view and I know you are not getting out of the house much. You will be more comfortable there.

14. In one of her affidavits the plaintiff has deposed that this offer was made on an occasion when Antonia Vourlos visited the plaintiff at her own home in Balgowlah Heights. Her uncertainty about the location at which the conversation took place does not cause me to doubt the plaintiff’s veracity as to what was said. I accept that a conversation to the above effect took place at a time when the plaintiff was speaking with Antonia Vourlos in the absence of any other person. Subsequently to this conversation, I infer within days or a week or so, the plaintiff drove both Antonia Vourlos and the defendant to the Seaforth property. They inspected it and the plaintiff said:

This is the house. What do you think?

15. The plaintiff is unable to recall whether Sebastian and Sophie were also present on this inspection visit. She has deposed, and I accept, that the children did visit the Seaforth property on one occasion before their parents confirmed to the plaintiff that they wished to take up her offer that they might reside there. Sophie has deposed to such a visit at which the following conversation took place:

Sophie:   Wow Auntie, it is so beautiful here!

Plaintiff:   I think you will all be more comfortable, especially your mother because she is very sick. And you will be much closer to me so I can come and visit.

16. I accept Sophie Vourlos’ evidence as to this conversation and that it took place on an inspection by the whole family before her parents had decided to take up the plaintiff’s offer. This evidence is further supported by that of Sebastian Vourlos, who deposed that the entire family visited and expressed enthusiasm about moving to Seaforth.

17. The above findings are based upon the plaintiff’s evidence, which I accept without reservation, concerning the words in which she offered to Antonia Vourlos that the family could reside in the Seaforth property and concerning the sequence of contacts between herself and Antonia Vourlos leading up to the offer and the circumstances in which the offer was first made. I also accept the plaintiff’s evidence about the inspection at which both Antonia Vourlos and the defendant were present and about an inspection, which may have been the same occasion, by the two children.

18. The plaintiff’s affidavits are substantially consistent with each other. They are also consistent with the evidence of Sebastian and Sophie Vourlos and with the plaintiff’s evidence under cross-examination, subject to minor anomalies of the kind that the Court would expect of a truthful witness recalling conversations and circumstances now more than 10 years old. The plaintiff’s explanations of her motives, her conduct and the things she said are credible and they accord with what would be expected on the basis of common human experience. In addition to these indications of reliability, I found the plaintiff an impressive witness when giving oral evidence. Her answers under cross-examination were given readily and were sensible, conveying the impression that she spoke the truth from actual recall.

19. In conversation with her niece the plaintiff did not prescribe any conditions for the family’s occupancy of the Seaforth property. She did not set any conditions by reference to what might happen upon the death of Antonia Vourlos or upon either or both of the children moving out. Her answers under cross-examination regarding this, as follows, were given lucidly, logically and convincingly:

A   I just saw my niece that she was so bad, it was indescribabl[e] a young woman of her early 40s being so very sick and in such a bad way, all I wanted to do was for her to get into a good home and that's why I went and bought furniture and so on, so that she could be as comfortable as possible for […] the rest of whatever life she had. […] I didn't sit down and put any rules or regulations, I just wanted her to be comfortable, and wanted her to […] get out of a house where there was a lot of cockroaches, it was a terrible place, into a place where she can really relax and have a view so that she could see something because she could [not] go out all the time, she just couldn't, she was too sick. That was my main aim.

…

Q   And you didn't say that as soon as Antonia stopped needing any care that they should move back to where they were living for?

A   I didn't even think of Antonia not wanting any care. That didn't even-- no. These sorts of conversations, no.

Q   And you didn't say to Mr Vourlos or Antonia at the time that as soon as your children move interstate for university for example that they couldn't live at the house anymore?

A   As I'm saying and I repeat again at that time I wasn't looking beyond any time, all I was looking at is my niece to be happy and to be in an area where it's nice, clean, spacious, and something where she could look out, had an outlook to see. Had a nice proper television set to watch TV because she was housebound. She was a very sick girl.

…

Q   So when you said to Antonia and to Mr Vourlos that they could live in your house in Seaforth you did not expect her to recover?

A   No I didn't expect her to recover but […] maybe it was wishful thinking on my part but I was kind of hoping she'd have a longer life than what she did have.

Q   Yes. But you contemplated at the time that there would be a scenario where Mr Vourlos--

A   I didn't contemplate anything at the time. All I was thinking is my niece. I didn't have any contemplation of anything.

Q   What I'm trying to put to you Ms Sakellis is that you contemplated at the time that Mr Vourlos and his kids might be living at Seaforth without their mother?

A   It never even entered my mind. All my mind was entered is please let her have a life, a rich life as long as she's got. That's what my contemplation was.

20. The plaintiff has not deposed to any conversation in which she expressly said that she would charge no rent. But the absence of any reference to rent or to a lease clearly conveyed that no rental charge was to be made. This offer of the Seaforth property was undoubtedly generous. It was a large house with views over the Spit Bridge and Middle Harbour. On the upper, entry level there was a spacious master bedroom, a lounge room and a dining room that all enjoyed the views. Downstairs there were three more bedrooms. There was a bathroom on each level. The house was about four or five times larger than the one at North Ryde.

21. Antonia Vourlos and the defendant agreed to move in. The plaintiff then arranged for wheelchair access to be constructed. She purchased furniture, including beds for all members of the family, wardrobes for the children, a lounge suite, coffee table, television, dining table and chairs. She equipped the house with linen and towels. The plaintiff caused a built-in wardrobe to be constructed for her niece in the master bedroom. Sebastian wished to complete his last year of high school at the school he had been attending near North Ryde. The plaintiff bought him a car so that he could commute more easily. After the family moved in the plaintiff continued to pay Council and water rates and other expenses of upkeep of the Seaforth property.

The defendant’s account of the first meeting and offer of the Seaforth property

22. The defendant gave an entirely different account of the circumstances and terms in which the plaintiff first offered the property for occupation by his family. For reasons explained below his evidence strikes me as implausible and contrary to the inherent probabilities of the situation. Further, I was unimpressed by his responses under cross-examination, in which he tended to urge repetitively propositions that appear to me unlikely but that, in my assessment, the defendant thought would enhance his case. Examples are his reiteration that his late wife did not engage with the plaintiff during their first meeting in 2008 and that his wife expressed negative sentiments concerning the plaintiff’s offer of the Seaforth property. In the plaintiff’s evidence, both on affidavit and under cross-examination, she expressly refuted the entirety of the defendant’s account of the first meeting and of the words and circumstances of her offer. I prefer the evidence of the plaintiff where it conflicts with that of the defendant.

23. The defendant deposed that on the plaintiff’s first visit to North Ryde in late 2008 Antonia Vourlos was “very apprehensive about speaking with” her because of the family disagreements of the past and the estrangement that had continued since 2000. He said that “although my wife was present during Ms Sakellis’ visit, my wife avoided any interaction with Ms Sakellis”. He denied that the two ladies embraced on greeting each other.

24. In cross-examination the defendant said that the plaintiff came into his house at North Ryde “like the one, the Messiah”. On affidavit he gave this account:

During that visit, I recall that [the plaintiff] expressed surprise at the condition of the North Ryde property and said words to the effect of:

“What house is this?”

[The plaintiff] then said words to my wife and I to the effect of:

“I’ve got a house for you”.

Neither my wife nor I made any substantive response to that statement. [The plaintiff] then offered to take us to look at the house she had mentioned saying words to the effect of:

“I’ll take you to come and look at the house”

I agreed to [the plaintiff’s] offer to look at the house. [The plaintiff] arranged to pick me up on the following day.

25. The defendant said that the visit to his home at North Ryde lasted about half an hour. I do not accept that the plaintiff entered her niece’s home on this occasion in a haughty manner, “like the Messiah”, or that there was no show of affection between the two women on their first meeting after eight years, or that the plaintiff so quickly expressed disdain for the house the family was living in and immediately offered a better one. This is entirely inconsistent with the circumstances of the visit and the plaintiff’s purposes. She had come out of concern for her niece’s welfare, immediately upon learning from Sophie that Antonia Vourlos’ health had deteriorated greatly. It is not at all likely that Antonia Vourlos would have maintained a frosty attitude during this visit, having just agreed to receive the plaintiff in response to a phone call from her daughter and the plaintiff while they were at the shopping centre a little while before. It is also not at all likely that the plaintiff would have entered and conducted herself in an overbearing and superior manner. The circumstances of the plaintiff making this visit, her affectionate attitude toward her niece, as confirmed by her subsequent great generosity, and the plaintiff’s manner and bearing in the witness box all point strongly against such conduct on her part.

25. The defendant said that the visit lasted about half an hour. He could not say for how long he had been in conversation with the plaintiff when the above statements were made. In cross-examination he insisted that his late wife did not engage with the plaintiff and that the plaintiff’s conversation was directed to him. He gave these answers:

[M]y wife, she wasn’t looking at [the plaintiff] at all. She didn’t look at her at all. She didn’t want to talk to her.

[The plaintiff] was direct to me all the time, talking to me, because the relation between them was very bad, and [my wife] advised me not to go to Seaforth.

When she said [”I’ve got a house for you”] to me, she was directing to me, my wife was there, she wasn’t talking but she was standing there.

27. I reject this evidence. To my observation of the plaintiff in the witness box, she is lucid in speech and was able to engage readily, responsively and intelligently with counsel’s questions. She would undoubtedly have had the facility to draw Antonia Vourlos into conversation. The plaintiff was on this occasion attending the North Ryde home for the explicit purpose of reconnecting with her niece. It is contrary to every objective surrounding circumstance of this meeting that it would have proceeded, as the defendant describes, by way of exchange only between himself and the plaintiff with Antonia Vourlos as a mere bystander.

28. As appears from the second of the three answers quoted at [26] above, in cross-examination the defendant insisted that Antonia Vourlos was hostile to acceptance of the plaintiff’s offer from its first mention. Referring to discussions with his wife immediately after the plaintiff left their home at the end of this first meeting, the defendant gave this evidence:

A   [A]fter that she [Antonia] kept telling me all the time, don’t … (not transcribable)

Q   Don’t go to Seaforth, is that what you said sir?

A   Yes.

29. With respect to the plaintiff’s offer to take the defendant for an inspection at Seaforth the next day, the defendant gave this answer in cross-examination:

Q   Did she offer to take your wife as well?

A   No […] my wife as I said she didn’t want, she keep telling me, “Don’t go, Con, don’t go to Seaforth. I don’t want you to go and live there”.

30. The entirety of the defendant’s evidence about this first meeting constitutes a highly improbable account that owes more to self-serving reconstruction than to genuine recollection. It is not at all likely that in this meeting the plaintiff would have immediately proposed that the family should move to her Seaforth property. In a half-hour visit she would barely have had time to assess the routine of Antonia Vourlos’ daily care or her needs, or those of her children. After a long estrangement it is far more probable that the plaintiff would have undertaken further visits to her niece, as she has described, to reinstate their relationship, to rebuild trust and to determine how best Antonia Vourlos might be helped.

31. Based on the plaintiff’s evidence and on her sincere demeanour in the witness box, I find that on this first visit the welfare of Antonia Vourlos was the plaintiff’s central and genuine concern. It is common sense that she would have taken some time to re-establish a relationship with her niece and to evaluate the family circumstances before proposing a move to the accommodation that she was able to offer. The evidence does not suggest that the features and condition of the North Ryde house constituted an emergency from which the plaintiff might have rushed to move her niece, at the first visit. I do not accept that the plaintiff was affected by any desire to aggrandise herself, by immediately offering the Seaforth house, at this initial renewal of contact.

32. The defendant’s account of this first meeting is self-serving. I find that he has sought to distort the manner in which the plaintiff offered the Seaforth house, to make it appear that it was offered to him. The plaintiff, by appropriate concessions in her affidavits and oral evidence, acknowledged that when she offered the Seaforth house to her niece in a conversation between the two of them alone she understood that if Antonia Vourlos took this up it would be an acceptance on behalf of the entire family, including the defendant. But the defendant has endeavoured to advance his own case by contorting it into an offer directly and explicitly to himself.

33. The defendant’s evidence that the plaintiff drove him to visit the Seaforth property the next day is equally improbable. He said under cross-examination that when the plaintiff attended at North Ryde to collect him she did not even go inside the house to greet her niece. That in itself is highly unlikely, given that Antonia Vourlos was the central object of the plaintiff’s interest and concern. It is equally unlikely that the plaintiff should have taken the defendant for a first inspection of the property without her niece, being the person for whose comfort the house was being offered.

34. Again I conclude that the defendant has reconstructed the circumstances of the first inspection to bolster his case that the offer of the house was made directly to him. If he could establish on the balance of probabilities that the plaintiff represented that she would provide him with accommodation for the rest of his life, it would not detract from his case if it should be found that the representation was made to himself and to his late wife jointly, or that it was made to either of them in the presence of the other. But I infer that the defendant perceives his claim to be strengthened by describing the offer of the house and the first inspection as matters between the plaintiff and himself alone.

35. The defendant deposed that upon arrival at the Seaforth property the day after the plaintiff’s first visit to North Ryde, the following conversation took place (words in square brackets within quoted speech as in original):

[The plaintiff]:   This is your house.

and later:

[The plaintiff]:   This is your house to live in.

[The defendant]:   If we are to move to Seaforth and live in this house, [my wife] Antonia and I will need to provide notice to [Link Housing] and terminate our residential tenancy agreement. I can stay in [the North Ryde property] for the rest of my life under the current lease.

[The plaintiff]:   Do not worry about it. Forget about that place. Come live in Seaforth, the house is yours! If I ever pull the house [Seaforth property] down, then I will move you to another house I own.

36. For reasons already given I do not accept that there was any such occasion of an inspection by the plaintiff and defendant alone and it follows that I also do not accept that any of the above conversation took place. The defendant has not suggested any other occasion upon which there may have been a conversation in these terms. Additional indicia of improbability are evident from the words that the defendant attributed to each party. It is highly unlikely that, upon arrival at the property the plaintiff would have said, “This is your house”, before the defendant had indicated a willingness to make the move and before his wife had even seen the property.

37. It is also unlikely that the plaintiff said during such an inspection at Seaforth that she would move the family to another property if she decided to demolish the house. The plaintiff’s evidence extracted at [19] above satisfies me that when offering this property to her niece’s family she did not think about or discuss the future. That is understandable given that she thought Antonia Vourlos’ life expectancy was very short. There was no reason for her to consider or discuss the contingency of the Seaforth house being demolished. It may well be that she had redevelopment of the site in mind. But if that was the case and she had another property to which her niece’s family could be moved, nothing in the circumstances makes it likely that she would have seen fit to discuss this possibility at a time and in a context such as the defendant asserts.

38. Further, the defendant would not likely have opened the subject of giving notice to his existing landlord or spoken of a perceived entitlement to remain in the North Ryde property for life before his wife had inspected the Seaforth house and agreed to move. On the defendant’s version of events, at the time of this alleged inspection Antonia Vourlos had expressed outright hostility to her husband even visiting the Seaforth house and to him accepting the plaintiff’s offer. His contention that against that background he commenced to discuss with the plaintiff the notice that would have to be given to his present landlord and the duration of his right of occupancy at North Ryde is incongruous and improbable.

39. The plaintiff gave evidence that at the time she offered the Seaforth property she was not aware that her niece’s family occupied the North Ryde house under a subsidised community housing tenancy. I find her evidence in that regard to be truthful and reliable. The plaintiff deposed that Antonia Vourlos was in hospital when the other members of the family moved to Seaforth. She was discharged two to three weeks later. At that time, when she joined the rest of her family at Seaforth, she told the plaintiff that the North Ryde house was community housing. That was the plaintiff’s first knowledge of the matter.

40. The defendant has not suggested that he brought the nature of his tenancy at North Ryde to the plaintiff’s attention by any means other than the conversation on the alleged inspection visit and I reject his entire account of that visit. The defendant relies upon the surrender of his tenancy of the North Ryde property as an alteration of his position to his detriment, undertaken on the faith of an alleged representation by the plaintiff that she would provide him with accommodation for life. It is not necessary to the defendant’s proprietary estoppel case to prove that the plaintiff knew he would incur this detriment by relying upon a representation from her. However I infer that the defendant perceives his case to be advanced by purporting to recall such a conversation. The purported recollection is not reliable.

41. The defendant deposed that after his first inspection of the Seaforth property, alone with the plaintiff, he discussed the matter with his wife and she was “sceptical of the offer”. In oral evidence he said:

I persuaded her and the kids after I saw the house that it would be better for them …

42. It is possible that Antonia Vourlos had initial reservations about the move but I do not accept the defendant’s evidence that he first inspected the property without his wife. It is also possible that the children were opposed to moving house prior to having seen the property at Seaforth. I accept their evidence that after making an inspection they were enthusiastic.

43. The defendant has deposed that after his first inspection he visited the property again a number of times before moving in. It is not disputed by the plaintiff that there were such additional visits but she says, and I accept, that they took place after both the defendant and his late wife had seen the property together and had agreed that the family would move in. At the time of such further visits work was being undertaken to improve the property to suit Antonia Vourlos, including the installation of wheelchair ramp. The defendant has deposed that on one such visit the plaintiff accompanied him and said that the property “is your house”. I accept that words to that effect may have been spoken but, in the context, they would have conveyed nothing more than the plaintiff’s desire that the family should feel comfortable with accepting her generosity. Such a statement by the plaintiff could not reasonably have been understood in any more formal sense, for example as a representation to the defendant that he could reside in the house for life.

44. The fact that the plaintiff permitted the defendant together with Sebastian and, at times, Sophie Vourlos to remain in the Seaforth house after the death of her niece does not support an inference that she must have intended, let alone represented, that the defendant should be entitled to reside there for life. The plaintiff’s actions are readily explained by her generally charitable disposition toward family members. She has deposed that Antonia Vourlos, toward the end of her life, asked the plaintiff to look after her children and their father “as they will need a parent to watch over them”. In oral evidence the plaintiff said that she responded by promising to look after the family.

45. The plaintiff has fulfilled her promise in many ways, including by her support for Sophie Vourlos during four years of study in Canberra, her provision to the defendant of a car, her payment for a number of trips that the defendant took to Greece and other direct financial support for him. The plaintiff’s permission for the surviving family members to continue living at Seaforth was part of her fulfilment of this promise. She gave this answer in cross-examination:

I tried very hard to look after [the defendant] as well as I could so that Sebastian could have a parent around him.

46. Sebastian and Sophie Vourlos have long since reached adulthood. As recounted below, their incompatibility with their father has led to him leaving the Seaforth house and the plaintiff providing him temporary accommodation, which has become extended, in the disputed property at North Manly. This subsequent history reflects changing circumstances since Antonia Vourlos’ death. It is incapable of supporting an inference as to promissory representations alleged to have been made in 2009.

47. The defendant sought to draw a parallel between the facts of this case and those of Sullivan v Sullivan [2006] NSWCA 312, however there is no similarity. In that case a proprietary estoppel was upheld upon the basis of a representation to the plaintiff from her brother and his wife, Donna. The representation is reproduced at [58] in the judgment of Hodgson JA, quoting the first instance judgment at [3]. It was conveyed in a letter enclosed with a Christmas card as follows:

This is your Christmas present. Donna & I & you & [your partner] ASAP will look for a home of your/our choice for you to live in as long as you like. … You won’t have to pay any rent for the first 12 months & at that time we’ll consider your financial situation and have you pay a minimal comfortable rent from then on. We want you to look at it as your home & take pride in it accordingly. … it is you [sic] home for life.

48. In the present case, upon the findings I have made as to conversations and dealings between the parties, there was not conveyed to the defendant an offer or representation remotely comparable to that upon which a proprietary estoppel was upheld in Sullivan v Sullivan.

The defendant’s claim of reliance and alteration of position

49. Documentary evidence shows that the defendant terminated his lease of the North Ryde property with effect from 13 April 2009. From that date the family moved into the Seaforth property. By giving up his lease from Ryde Hunters Hill Housing Cooperative Pty Ltd the defendant lost the security of tenure that he had in respect of the North Ryde home. Given the low rent and his regular receipt of a Commonwealth benefit it is likely that the defendant would have been able to maintain his obligations under the lease and continue indefinitely in occupation of the house at North Ryde, or a smaller property, after the death of his wife and the departure of his children.

50. The defendant has deposed that at the time of moving to Seaforth he understood that the plaintiff “had offered to provide the Seaforth property to my family and I [sic], rent-free, for the duration of my life and that of my wife”. As I reject the defendant’s version of the plaintiff’s conduct and conversations up to the date when he terminated his North Ryde lease and moved to Seaforth, the questions that now arise are, first, whether the defendant did gain the understanding that he asserts and, secondly, if so, whether that understanding could reasonably have been taken from what the plaintiff in fact said and did. The two questions are closely related.

51. For the defendant to establish his case on proprietary estoppel it is not necessary that he should prove that a representation made to him clearly defined the scope and limits of an interest he should have in the Seaforth property. It would be sufficient for the defendant to prove that what was represented to him conveyed, in his reasonable understanding, at a minimum the estate that he claims, namely, a right of occupancy for life: Sullivan v Sullivan at [85].

52. The defendant’s implausible evidence about the plaintiff’s meeting with his wife in late 2008 and about the inspection and offer of the Seaforth property deny him any credibility on contested issues, in the absence of independent corroboration. There is no confirmatory evidence of his purported understanding that occupancy of the Seaforth property was his for life. There is no evidence from any independent or otherwise reliable witness that the defendant expressed any such understanding at the time or at any subsequent date prior to the eruption of this dispute. I regard the defendant’s assertion of this understanding as a purely self-serving construct. The improbability of such an understanding having been gained, as referred to in the next paragraph, tends against giving credence to the defendant’s evidence about it.

53. In the circumstances I have described, the conversations by which the defendant and his family were offered and accepted accommodation in the Seaforth house, as I have found them at [13]-[21], could not reasonably have been understood by a person in the defendant’s position as conveying a representation that the plaintiff would allow him to remain in the Seaforth house for any specific duration, let alone for life. The plaintiff’s offer could not reasonably have been understood as extending to an assurance of other rent-free, lifelong accommodation in the event of her requiring the defendant to vacate the Seaforth property.

54. The fact that the defendant was willing to forego his secure occupancy of the North Ryde tenancy does not of itself support an inference that he thought he would receive lifelong accommodation from the plaintiff. There was ample reason for him to accept the plaintiff’s offer without any assurance of life tenure. The Seaforth property was greatly superior to the North Ryde home and was rent-free. These were significant immediate benefits for himself and for all members of the family. I find that he accepted the offer without forethought for any of the many possible changes of circumstances that in the future might cause the plaintiff to ask him to move out of the house.

55. The defendant has deposed that in 2009 he believed the plaintiff had provided “other members of the family with rent-free accommodation for life”. He asserts that she had provided a house for her brother Emanuel (the father of Antonia Vourlos) and his wife and another house for Antonia Vourlos’ brother, Paul Sakellis. In the absence of contradiction from the plaintiff I accept that she had made such provision for her other relatives and that the defendant was aware of this in 2009. This fact, taken together with the circumstances in which the plaintiff offered the Seaforth house, does not support an inference that the defendant understood he was being assured of lifelong accommodation. Nor does it make it reasonable for him to have drawn such an understanding.

56. I find very it revealing that the defendant was conscious of the plaintiff’s largesse toward other family members and that, in cross-examination, he volunteered a description of the plaintiff’s arrival at his North Ryde home “with a brand new Mercedes parked it outside and she come here like … [l]ike the one, the Messiah”. I infer that the defendant has a strong sense of entitlement with respect to the plaintiff. That attitude is further manifested by his subsequent acceptance of considerable financial support and generosity from her, barely acknowledged by him and with negligible expression of gratitude. My conclusion that the defendant has reconstructed events and conversations of 2009 in order to improve his estoppel case is consistent with this attitude and is further supported by it.

Events between April 2009 and July 2015

57. Sophie Vourlos has deposed that prior to the family moving to Seaforth she had a poor relationship with the defendant and that this deteriorated during 2009 and 2010. At some time during 2010, when Sophie Vourlos was in her last year at high school, the quarrels with her father were so bad that she moved out of the home and lived with her grandfather, the plaintiff’s brother. Having completed her Higher School Certificate in 2010 she moved to Canberra in January 2011 to study at university. At the end of her university course in late 2014 she returned to Sydney and moved in with the defendant and her brother Sebastian at the Seaforth property. Sophie Vourlos’ affidavit evidence about these matters is substantially confirmed by the evidence of the plaintiff and Sebastian Vourlos.

58. I accept the evidence of Sebastian Vourlos that apart from a holiday in Europe during 2014 he has lived in the Seaforth house continuously since the family moved there in 2009. He has deposed to severe arguments between the defendant and his sister from 2009 until she moved out to live with her grandfather and to arguments between the defendant and himself from about 2012. From when Sophie Vourlos moved back in at the end of 2014 there were many arguments between the defendant and both of his children.

59. On 31 December 2014 and the next day, arguments between Sebastian and the defendant came to a head over the conduct of guests of Sebastian who attended the Seaforth house for a New Year’s eve celebration. The defendant called the police and then the plaintiff. The plaintiff attended the house to try to calm the situation. She urged the defendant to try to resolve the disagreement with his son. The following day the defendant departed for Greece on a six month visit which had been planned before this altercation. The plaintiff paid for his airfare and accommodation overseas.

60. In the defendant’s absence overseas his two children informed the plaintiff that they did not wish to live with their father any longer. Upon the defendant’s return to Sydney in July 2015 the plaintiff had a conversation with him, to which she has deposed in the following terms:

[The plaintiff]   My tenants are leaving 578 Pittwater Road, you can live there but only temporarily. I can’t have your kids in one property and you in another and not receiving an income from either property.

[The defendant]   I’ll see what I can do.

[The plaintiff]   You will need to resolve things with your children.

61. It is common ground that the plaintiff had become interested in the North Manly property in about 2012 and that she had spoken to the defendant at that time about the possibility that she would buy it. I accept the plaintiff’s evidence that she purchased it for investment purposes and let it out to tenants immediately upon completion of the purchase. I accept her further evidence, partly in one of her affidavits and partly supplemented by oral evidence, that she told the defendant in about 2012 that this property would be suitable for the defendant and his two children to occupy in lieu of the Seaforth property, if she should proceed with demolition of that house.

62. The defendant has given evidence that the major falling out with his son was on New Year’s Eve 2015 and that he had a conversation with the plaintiff about moving into the North Manly property in July 2016. I find that he is one year out in this recollection. He disputes the plaintiff’s version of the conversation about his move to North Manly and says that the plaintiff merely offered to him:

Why don’t you move into [the North Manly property] and live there?

63. The defendant claims that from the original discussions with the plaintiff about the Seaforth property (as he claims to recall those discussions) and from his conversations with the plaintiff in about 2012 concerning her proposed purchase of the North Manly property, he gained an understanding that in July 2015 she “was offering to allow me to live at the North Manly property for the remainder of my life”. I reject this evidence. I have already rejected the defendant’s evidence of the discussions in 2009 concerning the Seaforth property, which form a critical part of the circumstances from which he claims to have understood that he could live at 578 Pittwater Road for the rest of his life.

64. I accept the plaintiff’s evidence that her offer to the defendant of the North Manly property was expressly for temporary accommodation. I have no reason to doubt her further evidence that she hoped for and tried to bring about a reconciliation between the defendant and his children, so that he could move back into the Seaforth property. I accept that she was not at any time willing to provide, on a long-term basis, two rent-free houses, one for the two children and another for the defendant. She never said anything that the defendant could reasonably have understood as indicating a willingness so to provide.

65. I find it both plausible and probable that the plaintiff informed the defendant that his occupation of the North Manly property could only be temporary. Being a six bedroom two story home, an offer that the defendant might reside there alone in the long-term would be wasteful and foolish. Such a property was and is vastly beyond his needs. Whilst the plaintiff is demonstrably generous I am not satisfied on the balance of probabilities that she was so unwise and extravagant as to have made the offer that the defendant claims to have received.

July 2015 to November 2017

66. It is common ground that for some years up to November 2017 the defendant did odd jobs for the plaintiff such as feeding her dogs when she was at work and collecting medicine for her from a pharmacy. The defendant has deposed that this commenced in 2010 and that his assistance to the plaintiff included substantial maintenance and renovation work on various properties the plaintiff owned. The plaintiff says the defendant only commenced to run errands for her from about 2013 and that the work that he has performed has not been as substantial as he claims. The defendant acknowledges receipt of financial assistance from the plaintiff, in addition to rent-free accommodation, payment for trips to Greece and the gift of a car.

67. It is not necessary to resolve the differences between the parties concerning these matters. They are relevant only as background to the breakdown in the relationship. That occurred in November 2017 when the plaintiff was very unwell and asked the defendant to drive her to a medical appointment and to pick her up afterwards. He drove off and did not wait for her. When the plaintiff phoned to find out where he was, he asserted that she had been rude to him and that as a woman she had no right to raise her voice to a man. The plaintiff had to find her own way home. On the same day the defendant also let her down with respect to taking one of her dogs to a vet.

68. After this the plaintiff did not wish to have any further contact with the defendant. I accept her evidence, given in cross-examination, that over the preceding two years she had frequently told the defendant that he had to repair his relationship with his children and that his occupancy of the North Manly property was temporary, until he had reconciled with his children and could resume living with them, as she could not have two properties earning no rent. The plaintiff described the incident in November 2017 as the last straw, as follows:

I just had enough of his attitude, enough of his ways, stubbornness, not wanting to reconcile for his kids, after helping him as much as I could financially […] I think [the incident] was what cracked the camel’s back, you don’t want to do this with your kids, you don’t want to do this and you don’t want to do that, I had just about enough of that kind of macho attitude …

69. As a result the plaintiff caused her solicitor to write to the defendant on 18 December 2017 to request that he vacate the North Manly property by 31 January 2018. In this letter the defendant was also informed that the plaintiff did not approve him residing in any of her other properties.

Terms offered by the plaintiff for the defendant’s departure

70. Shortly before 1 February 2018 the defendant informed the plaintiff’s solicitor that he was not prepared to vacate the North Manly property. On the plaintiff’s instructions the solicitor wrote again on 1 February 2018 and advised the defendant he would be allowed until 18 March 2018 to quit the property. That was a further six weeks and made the total notice period 90 days from the first letter of 18 December 2017. By 13 April 2018 the defendant had asserted that he was entitled to remain in the property. On that day the solicitor wrote again, denying any such entitlement, providing information concerning rental assistance and low-cost housing and conveying an offer that the plaintiff would pay his airfare to Greece if he preferred to repatriate. By this letter the date for the defendant to vacate was extended once more to 4 May 2018. He did not comply. The plaintiff’s statement of claim for possession was filed on 6 June 2018.

71. On 3 July 2019 the plaintiff offered, through her solicitor, that she would undertake works to create a self-contained living area for the defendant on the ground floor of the North Manly property. The defendant would be permitted to reside in this part of the house rent-free for 2 years and thereafter would be required to pay rent equivalent to what he would incur in social housing – about 25% of his welfare benefit income. It was offered that this arrangement would continue for the rest of his life or until he no longer wished to live in the property. The plaintiff proposed to advertise the remainder of the house for rent on the open market. She offered the defendant temporary accommodation with her sister-in-law for 4-6 weeks while the building works were undertaken.

72. The defendant rejected this offer in mid-July 2019 and subsequently, on 7 August 2019, counter-offered that he would occupy the upper floor of the property, rather than a self-contained part of the lower floor, and would commence paying the proposed rent immediately. The upper floor comprises four bedrooms. The part of the lower floor proposed for him by the plaintiff has one bedroom.

73. The plaintiff adduced evidence of these offers against the eventuality of a proprietary estoppel being upheld. The intention was to show that if equity were to act upon the conscience of the plaintiff to require her to provide the defendant with accommodation for life, this could be done without conferring upon him the disproportionate extravagance of a six bedroom house or even a four bedroom upper floor of a house. Because I find that no proprietary estoppel arises it is not necessary to consider the extent of relief that might be appropriate. The defendant’s failure to vacate the North Manly property upon ample notice, his rejection of the plaintiff’s offer of a self-contained living area on generous terms and his counteroffer to occupy the four bedroom upper story assume no legal significance in the case. These aspects of the defendant’s conduct appear unreasonable and may have a bearing upon the terms of a costs order.

Orders

74. The defendant’s occupancy of the North Manly property is merely permissive and terminable on reasonable notice, which has been given. Judgment for possession will be entered in the plaintiff’s favour. At the conclusion of the evidence and addresses of counsel, the parties were informed that the Court was clearly of the view that no representation was made from which the defendant could reasonably have drawn an understanding that the plaintiff promised him accommodation for life. The parties were told at that time that the defendant’s defence of proprietary estoppel was not sustained. He has had one year and nine months’ notice to vacate the property. There is no reason why any further time should be allowed by the Court. Leave will be granted to the plaintiff to issue a writ of possession forthwith. Upon handing down this judgment the parties will be heard as to costs.

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Amendments

01 October 2019 - para [70] last line change 2019 to 2018

Decision last updated: 01 October 2019