Varma v Varma - [2010] NSWSC 786

No judgment structure available for this case.

CITATION: Varma v Varma [2010] NSWSC 786
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15-19, 22-26, 29-31 March, 1, 6, 9, 12-14 April 2010

JUDGMENT DATE :
16 July 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Plaintiff's claim dismissed

CATCHWORDS: EQUITY - CONTRACT - PROMISSORY ESTOPPEL - alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff - before death of father-in-law two-thirds of shares were transferred to defendants - plaintiff claims that defendants held shares on constructive trust for plaintiff - principles requiring caution when relying on uncorroborated representations made by deceased person - HELD - plaintiff has failed to establish that a promise or representation was made that whole of company would be hers - no enforceable contract between father-in-law and plaintiff - defendants did not induce breach of contract - no express trust created in plaintiff’s favour - no promissory estoppel - CONSTRUCTIVE TRUSTS - consideration of nature of constructive trust and when it can be said to arise - UNDUE INFLUENCE - circumstances of relationship between father-in-law and defendants would have raised presumption of undue influence which was not rebutted on facts of case - relief not granted on basis of undue influence as no claim based on this ground was relied upon by plaintiff - undue influence was only relied upon to resist defence to claim for specific performance

LEGISLATION CITED: Evidence Act 1995 (NSW)
Limitations Act NSW 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

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TEXTS CITED: A J Oakley Constructive Trusts 3rd ed, Sweet & Maxwell, 1997
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PARTIES: Parveen Varma (Plaintiff)
Gautam Varma (First Defendant)
Arjun Varma (Second Defendant)
Taj Food Sales Pty Ltd (Third Defendant)
The Estate of the Late Sah Dev Varma (Fourth Defendant)

FILE NUMBER(S): SC 2009/289939

COUNSEL: B W Rayment QC with W Washington (Plaintiff)
E Peterson with J Baxter (First, Second & Fourth Defendants)

SOLICITORS: Hall Partners (Plaintiff)
Hunt & Hunt (First, Second & Fourth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 16 JULY 2010

09/289939 PARVEEN VARMA V GAUTAM VARMA & ORS

JUDGMENT

1 HER HONOUR: Before me for hearing commencing on 15 March 2010 (and culminating in the hearing of a motion for costs in a related matter on 14 April 2010), were proceedings commenced by Mrs Parveen Varma seeking relief in relation to matters relating to the shareholding in a family company (Taj Food Sales Pty Ltd), which had been incorporated by Mrs Varma’s late father in law (Mr Sah Dev (Sid) Varma) in 1990 and of which he had, until the year of his death, been the majority shareholder. Mrs Varma has been employed by, and a director of, the company for most of the period since its incorporation.

2 The present proceedings are the only remaining proceedings in a series of proceedings which were brought by Mrs Varma (variously in her name or, in the first instance, in Mr Sid Varma’s name as his tutor) relating to the company and/or the affairs of Mr Varma. In each of those proceedings, the defendants have been or have included Gautam and Arjun Varma (the first and second defendants in the present proceedings), who are Mrs Varma’s nephews and two of the grandsons of the late Mr Varma. The third defendant in the present proceedings (which has been unrepresented and has taken no role in the proceedings) is the company itself. The fourth defendant (unrepresented until the commencement of the hearing but since then represented by the executors then appointed to the estate, Gautam and Arjun Varma) is the estate of the late Mr Varma.

3 Without any disrespect to the deceased or his family members, I propose to refer to them by their first names.

4 In summary, what Parveen is seeking in these proceedings is to enforce a promise that she says was made to her by Sid in relation to the company (both at the time of its incorporation and subsequently over the years). That promise is phrased in different ways in the pleadings and evidence but in essence it was a promise that, as from Sid’s death, the company would belong to Parveen. Broadly, the relief Parveen seeks is the transfer to her of the whole of the shares in the company. However, since two-thirds of the company shares were transferred by Sid before his death (in roughly equal parcels of shares on two separate occasions in April and June 2008) to Gautam and Arjun, the route by which Parveen now seeks to enforce her claimed entitlement to become the sole shareholder of the company is not straightforward.

5 Parveen’s claim is put in a number of ways, each predicated on the promise she said was made to her by Sid (and repeated on several occasions over the years): first, as a claim to enforce the contract which it is alleged came into existence on her acceptance of Sid’s promise in early 1990 that, if she transferred her then partnership interest in the business to him, on his death the company would be hers (damages for breach of contract being said to be an inadequate remedy); secondly, as a claim based on an express trust said to be constituted by Sid’s promise that he would hold the company shares during his lifetime and that on his death they would be hers; and, thirdly, as a claim based on the principles of promissory estoppel (that Sid, and subsequently his estate, was estopped from denying the contract or trust, or from resiling from the promise, by reason of Parveen’s detrimental reliance on Sid’s promise during his lifetime).

6 It is contended that, as a result of Parveen’s acceptance and acts in part performance of the alleged agreement (and her detrimental reliance on the promise) the shares were at all material times held on constructive trust for Parveen and thus that when Gautam and Arjun took their shares in the company they did so subject to her prior equity and as the recipients of trust property conveyed in breach of trust. It is alleged that they did so as volunteers (and, if that be relevant, with notice of Parveen’s claim or interest in the shares). It is also alleged that they wrongly induced their grandfather to breach his contractual or equitable obligations to Parveen by transferring the shares to them.

7 Parveen further alleges that the shares were transferred to Gautam and Arjun in circumstances of undue influence (on the part of Gautam and Arjun and/or their father Deepak Varma, who is not a party to these or any of the earlier proceedings) and in which Sid lacked the capacity to enter into the relevant transactions. Hence, it is said, they cannot resist a claim for the return of the trust property.

8 The undue influence allegation made by Parveen (i.e. as to the receipt by Gautam and Arjun of their shares in the company in circumstances of undue influence), which is denied, has been a source of much contention both leading up to and in the course of the hearing, not least as to Parveen’s standing to bring such a claim.

9 Senior Counsel for Gautam and Arjun, Mr Petersen, perceived this aspect of the claim to be an attempt by Parveen to maintain a chose of action belonging to the estate, which she did not have standing to raise (relying on what was said by Windeyer J in Scallan v Scallan [2001] NSWSC 1129, to which reference was made in Hewitt v Gardner [2009] NSWSC 705).

10 When the matter came before me in February this year (on an application, inter alia, by Gautam and Arjun to strike out the allegation of undue influence), Senior Counsel for Parveen, Mr Rayment, relied upon the proposition drawn from Ramage v Waclaw (1988) 12 NSWLR 84 that in certain circumstances a beneficiary may bring proceedings on behalf of a deceased’s estate. (Powell J in that case noted that as a matter of basic principle a beneficiary has no locus standi to bring such proceedings but also recognised that a beneficiary may institute proceedings to compel the trustee to perform its duty to protect the beneficiary’s beneficial interest in the trust property, even though that interest is only contingent; and that where a trustee refuses to institute proceedings against a debtor or to recover trust property, the beneficiary may wish to institute proceedings either in that beneficiary’s own name or in the name of the trustee to do so, but that special circumstances were required in that event. The special circumstances so required were not limited to circumstances of collusion or insolvency.)

11 When the matter came before me for final hearing, Mr Rayment made it clear that the allegation of undue influence was also pressed in answer to any defence pleaded by Gautam and Arjun to Parveen’s claim for specific performance of the agreement said to have been reached with Sid. It was, to use his words, to clear away possible defences to Parveen’s claim for specific performance. Parveen did not seek to press a claim for setting aside of the inter vivos share transfers to Gautam and Arjun on the basis of undue influence in her capacity as Sid’s beneficiary.

12 I note this at the outset as much of the criticism of the manner in which the Parveen’s claims have been brought (at least as to her standing) appears to have been based on the assumption that Parveen was seeking to set aside the inter vivos share transfers for undue influence.

13 What Mr Rayment says, rather, is that Gautam and Arjun, as executors, have title to set aside the transfers made to themselves on the basis of undue influence and lack of capacity on the part of Sid and that they cannot rely on their failure to do so in order to preclude Parveen from recovering in this suit.

14 Therefore, as I understand it (and whatever may have been the intention leading up to the hearing), as the matter was argued at final hearing no claim was made by Parveen in her capacity as a beneficiary of Sid’s estate or as a beneficiary of the claimed constructive trust to set aside the inter vivos share transfers for undue influence.

15 Apart from denying the principal contentions on which Parveen brings her claims in these proceedings, Gautam and Arjun have raised a number of discretionary defences (such as laches, acquiescence and a lack of clean hands on the part of Parveen) to her claims for relief and they contend that any contractual claim is statute barred.

Issues

16 The following issues arise for determination:

(i) As a matter of fact, did Sid make the alleged promise(s) or representation(s) to Parveen to the effect that the company or all of the shares in the company would, as from his death, belong to her?

(ii) If so, did a binding contract come into existence between Sid and Parveen pursuant to which Sid was obliged to cause the shares in the company to be transferred to Parveen on or before his death and did Gautam and Arjun wrongfully procure or induce a breach of that contract? Is any such claim statute barred?

(iii) Alternatively, was there an express trust created pursuant to which Sid agreed, in effect, to hold the shares during his lifetime in his own name and that as at the date of his death the shares in the company would be held on trust for Parveen and, if so, did Gautam and Arjun knowingly participate in or procure a breach of that trust?

(iv) Further, if Sid made the promises or representations alleged, did Parveen reasonably rely on them to her detriment in circumstances where it would have been unconscionable in equity for Sid during his lifetime to resile therefrom (and would now be unconscionable in equity for his executors to do so)?

(v) If either the alleged contract or a claim based on promissory estoppel is made out, does this have the consequence that Sid held the shares on constructive trust for Parveen and if so at what time did such a constructive trust arise?

Barnes v Addy

(vii) Were the share transfers in question effected in circumstances of undue influence (on the part of Gautam and Arjun, and/or Deepak) and/or at a time when, to the knowledge of Gautam and Arjun, Sid lacked the capacity to effect such a transaction; and, if so, what consequences follow from such a finding?

(viii) Assuming Parveen is otherwise entitled to the relief claimed, is she precluded from such relief by reason of laches, acquiescence or unclean hands or is she otherwise estopped by her conduct from asserting her claims against the estate and/or against Gautam and Arjun?

Summary

17 For the reasons set out below, I am of the view that the above questions should be answered as follows:

(i) I am conscious of the need carefully to scrutinise claims based on promises or representations by deceased persons. I am not satisfied that Parveen has established the making by Sid of the alleged promises or representations, to the effect that all of the shares in the company would as from his death belong to her. That finding is fatal to Parveen’s claims and the proceedings must therefore be dismissed.

all

As to whether, assuming a contract had been established, Gautam and Arjun had wrongfully procured or induced a breach of that contract, while I would have been found that Gautam and Arjun did procure or induce Sid to make the share transfers in question I would not have been satisfied on the evidence that they did so with notice of any contract in existence in relation to the shares and hence would not have found this allegation to have been sustained.

(iii) I am not satisfied that the alleged promises or representations, had they been made, would have been sufficient to give rise to an express trust as alleged (ie a trust pursuant to which Sid agreed, in effect, that as at the date of his death the shares in the company would be held on trust for Parveen). While I would again have found that Gautam and Arjun procured or induced the share transfers in question, and did so in circumstances where one or both was concerned that Sid might leave the company to Parveen or her family, I would not have been satisfied on the evidence that they did so knowing that there was any such trust in existence but I consider that the evidence would have permitted the inference that Arjun and Gautam knew that Sid had or may have made a promise of some kind to Parveen to leave some or all of the shares in the company to her under his will and hence I would have been inclined to think that there was notice within the third category of notice in Baden Delvaux v Société Generale pour Favoriser le Development du commerce et de I’Industrie en France SA [1993] 1 WLR 509, at 575-576; [1992] 4 All ER 161, at 235, 242-243 (decided in 1983) (see below) for the purposes of establishing knowing assistance in a breach of trust on their part.

(iv) Had I been satisfied that Sid made the promises or representations alleged, then I would have found that Parveen had established a claim for equitable relief based on the doctrine of promissory estoppel, in that I would have been satisfied that she did reasonably rely on the promises to her detriment (in relinquishing her partnership interest in UV Enterprises and in providing or mortgaging her home to enable the provision of trade loans to the company) in circumstances where it would have been unconscionable in equity for Sid during his lifetime to resile therefrom (and would now be unconscionable in equity for his executors to do so).

(v) On the basis of my finding in (i)-(iv) above, this question does not arise. Had I found that there was a contract as alleged or had I upheld Parveen’s claim based on promissory estoppel, I would have held that as from the time of incorporation of the company the shares were impressed with a constructive trust in Parveen’s favour.

Baden Delvaux

As to Sid’s capacity to effect such a transaction, the evidence before me suggests that this was doubtful due to his susceptibility to outside influence, but I am not satisfied that the medical evidence before me was sufficiently directed to that issue so as to enable a final ruling on that issue. Had it been, then I would have inferred that Gautam and Arjun had knowledge of the matters giving rise to any such lack of capacity.

(viii) This question does not arise. Had I found that Parveen had established a claim for breach of contract, then I would have found that damages was an inadequate remedy. Had I found that Parveen had established a claim by way of promissory estoppel, then I would have found that the shares were held on constructive trust as from the incorporation of the company (and, given the involvement of Gautam and Arjun in the process by which the share transfers were effected, I would not have considered it necessary to fashion the relief in order to take into account their interests as third parties). I would have ordered the transfer of the shares to Parveen. I do not consider that Parveen would have been precluded from such relief by reason of laches, acquiescence or unclean hands nor would I have found that she was estopped by her conduct (in commencing and certifying the tutor proceedings) from asserting her claims against the estate and/or against Gautam and Arjun.

Outline of reasons

18 Given the nature of the claim, there must be close scrutiny of the relevant assertions which have been made. This requires detailed consideration of the facts. I set out below in separate sections of this judgment my analysis of the facts, a brief history of the previous proceedings, the claims made in the present proceedings and my assessment of the witnesses, before turning to the determination of the issues raised in the proceedings.

General family background

19 Sid was born in Burma in 1910. He migrated with his family to India in 1964 and established a business there (Globe Wasti Manufacturing), in which various of his family members came to be involved.

20 Sid and his wife, Usha, had three sons – Subash Varma (Parveen’s husband), Naval Varma (who has not had any involvement in this litigation and lives in the US), Deepak Varma (the father of Gautam and Arjun), and two daughters – Veena Aggarwal (who lives in Canberra and whose son Dr Arun Aggarwal gave evidence in these proceedings) and Lily Nakra (who, like Naval, has played no part in this litigation and lives overseas). Subash and Naval are older than Deepak (a fact relevant to some of the evidence which emerged during the hearing). It seems from the Explanatory Notes to various of Sid’s wills that when his two daughters married, Sid paid dowries to their husband’s families and thereafter did not regard himself as under any parental duty to provide for them or their families.

21 Subash and Parveen have one son, Vikram Varma. Vikram is married to Carin Hillman-Varma and they have a daughter, Sahara Ruby Hillman-Varma. Vikram has for some time run his own importing business (now known as Sahara & Co Pty Limited, trading as Globe United Trade). Vikram had worked for a period for the company from about 1996 but there was a falling-out between Vikram and Sid, which led to Vikram setting up his own business, apparently with the blessing of Sid (see para 28 of Anthony Davenport’s affidavit). Vikram nevertheless remained a director of the company up until his removal, in circumstances of some controversy, during the course of the events in question in 2008/9). Towards the end of his life, Sid seemed to be concerned to exclude Vikram (and also, for that matter, Deepak) from involvement in the company business. However, in the witness box during the course of the tutor proceedings Sid was not critical of the fact that Vikram had his own business (contrary to the assertion contained in his last will).

22 At least during the course of the events which took place in 2008 (and for some time earlier) Subash and Parveen have lived with Vikram and Carin in the younger couple’s home. However, for some time prior to Vikram’s marriage to Carin, it seems that Subash and Parveen lived in their own home with Vikram and that, for a time after his arrival from India in about 2001/2002, Arjun also lived with them. (The living arrangements are relevant both as to the extent of Parveen’s knowledge of communications sent to Vikram’s home and as to the circumstances in which it is said Arjun became privy to the alleged promise by Sid that the company would be left to Parveen by will.)

23 Deepak and his wife, Sangeeta, live in India (though it appears that Deepak visits Australia regularly and says that he obtained a provisional resident’s visa in 2008). Gautam is their older son. He is married to Geetika Bhargava and they have one son, Sidhanth. Arjun is the younger son. He is married to Seemita Mitra and they have one daughter, Rhiya. Deepak and Sangeeta also have a daughter (Deepti Varma).

24 The background to the Globe Wasti Manufacturing business was set out in Deepak’s affidavit of 1 February 2010. Deepak deposes that he was a 22.5% ‘partner’ in Globe Wasti Manufacturing, by which ‘company’ he says Parveen was employed as an Accounts Clerk from about 1974 to 1984. Deepak says that in 1980 he became the general manager of Globe Wasti Manufacturing. At some stage there was a falling out between Deepak and Sid. Deepak seems to have acknowledged in his affidavit that at least as at 1986 his father’s attitude was that he and Deepak could not work together. (Further, the evidence suggests that in and from 2006, if not earlier, Sid was adamant that Deepak should not have any involvement in the company or Sid’s business in Australia, although at an earlier stage Deepak was issued a share in the company.)

Establishment of rice importing business and involvement of Parveen

25 In 1983, Sid and his wife migrated to Australia. He was then aged 73. Shortly after arriving in Australia, Sid established a business importing Basmati rice into Australia. He carried on this business through a partnership, trading first as UV World Travels and from 1984 as UV Enterprises. The partnership was between Sid and his late wife, Usha. Although the partnership records were not before the court, there were in evidence some documents recording the registration of the partnership’s business name annexed to Parveen’s first affidavit of September 2008) and communications with the Tax Office and the ANZ Bank in December 1988 (in the context of Sid’s notification that there was to be a new reconstituted partnership with Parveen from January 1989) which refer not only to the initial partnership between Sid and Usha but which, at least in one case, refer to a partnership deed then in existence. There seems no reason to doubt that there was a partnership formally established through which the business was operated prior to 1990. (Indeed, Mr Petersen points in his written submissions to Sid’s own evidence in the tutor proceedings in relation to the existence of the partnership, though he does so in the context of suggesting that Parveen’s subsequent interest in it was of no real value.)

26 Deepak deposes in his affidavit to a conversation in late 1986 in which he says that Sid said that he wanted Parveen and her husband to move to Australia to assist him. This is consistent with the evidence given by Sid’s nephew, Mr Anthony Davenport, who swore an affidavit on 2 February 2010 in these proceedings and which was read in Gautam and Arjun’s case (in this regard, I refer to para 20 of that affidavit). (Mr Davenport was not required for cross-examination.) At this stage Usha (who died in 1989 after suffering from cancer) was unwell and needed care. According to Deepak, his father said that his business required his full dedication and involvement. Relevantly, again according to Deepak’s version of the conversation, Sid also said that he considered his son, Subash to be “useless” (which may be the explanation for Sid’s seemingly uncharacteristic inclusion of a daughter or daughter-in law in his ultimate testamentary bequests).

27 On Deepak’s version of his subsequent conversation with Parveen, in which he says he conveyed his father’s message, it is clear that Deepak understood Sid to be suggesting not simply that Parveen should assist Usha in her illness but that Parveen would work in the UV Enterprises business when she emigrated from India to Australia – as she did.

28 Parveen and her husband arrived in Australia in 1988. Both commenced work in the business, Parveen performing accounting/bookkeeping roles (though her role seems to have expanded over the years to include dealings with customers and more responsibility in the running of the business) and Subash performing (at least by the time this dispute became manifest) a role in the delivery and collection of goods or orders.

29 In about March 1989, Usha died. Prior to that, her half share interest as a partner in the business was, in effect, transferred to Parveen. (In fact it is not clear whether there was any formal transfer of a partnership interest or a re-constitution of the existing partnership with Parveen taking what had been Usha’s share of the partnership but nothing seems to turn on this.) This is consistent with the promise that Parveen said was made to her by Sid before she emigrated from India, namely that if she joined him in Sydney he would give her a portion of the business – para 6 17 September affidavit.) It is also consistent with Mr Davenport’s recollection that Sid had told him he intended to bring Parveen into the partnership (para 22 of Davenport affidavit).

30 As to the financial matters of the partnership, Parveen has deposed to a conversation with Sid in which he told her to take drawings from the business for a deposit on her home, which are described as partnership drawings. That, however, seems to be the only occasion on which such or any ‘drawings’ of partnership profit were taken and is equally consistent with Sid’s conduct in later approving payment of moneys out of the company for the acquisition of homes for his respective grandsons, including Vikram. Nevertheless, it is not surprising that in the early days much of the profits would have been retained in the business.

Incorporation of Taj Food Sales and alleged promise to Parveen

31 According to Mr Davenport, at some time in 1989 after Usha’s death, Sid told him that he was considering incorporating the business (which he said was growing) and dissolving the partnership (para 24 of Davenport affidavit). The company was incorporated on 20 February 1990. On incorporation each of Subash and Parveen was appointed a director (together with Sid and an accountant). Parveen and Sid continued as directors with the other two resigning in November 1990, according to the 1990 Annual Return in which Parveen was described as Manageress. According to the historical extract in evidence, at least as from the 1991 Annual Return, Parveen held 99 ordinary shares in the company (Subash having held one such share from incorporation). (Parveen’s first affidavit refers to the issue of 24 company shares – it is not clear whether those were part of the 99 recorded in the historical company extract.)

32 Parveen says, in effect, that Sid promised to leave her the whole of the company and that she gave up her partnership interest in reliance on that promise. In her first affidavit affirmed in the tutor proceedings (which bears the date 9 September 2008 in the affidavit but has the date 17 September 2008 on the cover page), Sid’s promise is attributed to a conversation some time during February 1990. In that conversation, Parveen says that Sid told her that she must work very hard if the company was to go and said “Don’t forget it will all be yours one day” (para 21).

33 Parveen was cross-examined (not surprisingly) at some length as to the date on which the alleged conversation took place and as to its content. Mr Petersen points to inconsistency between Parveen’s first account of the conversation and later accounts (as to what was said and in what language it was said), and as to the uncertainty of the date of the conversation.

34 As to what was said and the language in which it was said, it seems to me that the thrust of Parveen’s recollection of what was said has been broadly consistent. In effect, Parveen says that she was promised that she would end up (on Sid’s death) with the whole of the business in which (for a period, albeit short, up to incorporation) she had had a half interest as partner in the UV Enterprises partnership. I think it unlikely that Parveen (whose behaviour on all accounts seems consistent with a reluctance or unwillingness, whether out of respect for her father-in-law as she says or otherwise, to press Sid for information or to assert her own position in relation to the affairs of the company) would have focussed back in 1990 on the means by which the promised outcome was to be achieved (ie whether the company would become hers by means of a bequest under Sid’s will or otherwise by way of some form of irrevocable mandate or direction operating immediately prior to death). Therefore, I do not consider that an adverse inference should be drawn from what seem to be understandable differences in the terminology used by Parveen in recounting the promise she says was made to her. I think it unlikely that in a family context any promises of the kind alleged to have been made would have been understood in a general context and without the focus on the precise words used as would be the case if the promise were to be formally documented in a legal context.

35 I do, however, think it is of some relevance (when considering the claim that there was an enforceable contract) that in the later affidavit of 4 November 2009 (by which time Parveen’s legal advisers, if not Parveen herself, must have appreciated that there might be some significance in the distinction) Parveen deposed to conversations in 2005/2006 in which she had referred to promises made to her by Sid that when Sid died she would get the company (para 47) and in 2002 that Sid had promised that he would leave the company to her in his will (para 49), which carry with them the understanding that the promises made to her were of a testamentary nature.

36 I do not think it is significant that a more precise account (as to what was said in English and what was said in Hindi) was given when it came to the preparation of Parveen’s later affidavit (by which time, it might be inferred, more attention was being given to the detail of the conversation as opposed to its general import).

37 As to the timing of the conversation, it seems to me not unreasonable to assume that, some 18 years after any discussion took place as to the dissolution of the UV Enterprises partnership and incorporation of the company, Parveen would not have a precise recollection of the date on which a particular conversation occurred (without being able to refresh her memory from notes or other documents). In that regard, it seems to me not surprising that she would place the conversation as being around the time of incorporation of the company. I draw no adverse inference from this (nor can I draw any adverse inference from the lack of documentation in relation to the dissolution of the partnership, given the length of time which has passed since that must have occurred).

38 It is, perhaps, of some relevance, however, that on none of Parveen’s accounts of the circumstances in which her partnership interest in the business became subsumed by the company is it suggested that there was any detailed discussion between Sid and her as to whether the business should be incorporated or the like. In other words, Parveen’s accounts are consistent with it being understood from the outset that this was Sid’s business and that he was the decision-maker in relation to the vehicle through which it was to operate. That said, I see this as little more than an indication of Sid’s role in the business at that stage and place no weight on this when I come to consider whether Parveen has established as a matter of fact the making of the alleged promises/representations.

39 Parveen has also given evidence of the provision of her house as security for credit to the company by way of trade loans in the early days of its existence (which she says she agreed to after being reminded by Sid of his promise that it would be her company). It is submitted that it would be unusual for someone in the position of a mere employee of the company to take on such a risk. That may well be the case, but here the company was a family company and Parveen had been the recipient of funds for the deposit paid to acquire her home in the first place. It seems to me that the fact that she provided her home as security for the company’s trade loans (at Sid’s request), while I do not suggest was otherwise than an important commitment on her part to the company, does not of itself compel a conclusion that there had been an earlier promise (contractual or otherwise) on Sid’s part that the company would be hers.

Sid’s succession plans for his grandsons

40 It seems that, from very early in the history of the company, Sid had in mind the question of who was to succeed him in due course in the running of the company (hardly surprising since he was by no means young at the time it was incorporated). Mr Davenport gave evidence as to conversations with Sid during the 1990s in which he says Sid referred to succession plans for the company and said that said he was not looking at his sons or daughters or the current generation inheriting the business, but anticipated that his grandchildren would become his successors (provided that they met his ‘criteria’) (para 27 of Davenport affidavit). That is consistent with references in other documentation over the years (to which I will refer) as to Sid’s ‘succession’ planning. (The requirement that any successor be required to satisfy Sid’s particular ‘criteria’ is also consistent with the emphasis Sid seems to have placed on the continuity of his business by those who satisfied him as to their ability to do so.) In the context of succession planning, Mr Davenport deposed to the fact that he had never heard Sid say that he had left or had promised to leave the whole of the company to Parveen.

41 In 1992, Mr Dennis Castino became the accountant for the company. Mr Castino gave evidence in these proceedings. He seems to have played a central role in effecting the share transfers to Gautam and Arjun in 2008 (to which I refer in due course) and is relied upon by Mr Petersen as someone who was in a position to give independent advice to Sid (in the context of the denial that there was any undue influence exercised in relation to the share transfers at that time). Mr Castino’s affidavit deposes to conversations with Sid in the 1990s in relation to succession issues and in which he says that Sid told him he was considering family members who might be capable of taking up managerial roles within the company “and taking a majority shareholding the company”. This is inconsistent with Sid having made (or having understood that he had made) any binding promises to Parveen in relation to her having the ultimate ownership of the company.

42 In 1992, Deepak was allotted one share in the company. While that might be thought surprising given that back in 1986 his father had expressed the view that the two could not work together, it would be consistent with Sid drawing a distinction between control of the company and a lesser degree of participation by way of a nominal or other minority shareholding in the company.

43 According to Vikram, in his affidavit dated 2 March 2010, Sid visited him when Vikram was studying at university in South Australia some time during second semester of 1993 and said words to the effect, “I am happy with your progress at university and I would like you to join my business when you graduate as Parveen and Bashi cannot run it but they will own it” (at [5]). (Sid’s desire to have Vikram join in the company seems to have been part of his then succession plan for the company, as indicated by his discussions in the early 1990’s with both Mr Davenport and Mr Castino to which I refer below, when the arrangement with Vikram did not succeed.)

Early wills – 1993-1997

44 Sid made a series of wills (in the early years accompanied by statements in which he recorded the basis of his testamentary dispositions) over the period from 1993 up until the year of his death. There is a suggestion that Sid had made at least one will before 1993 but the earliest will of which there was a copy in evidence before me in these proceedings was that made on 4 June 1993. In this regard, Mr Petersen submits that Sid has spoken from beyond the grave to give his own account of the position in relation to his succession plans for the company. The wills certainly reveal on their fact the progression in Sid’s thinking over the years in relation to the company and the emphasis he placed on the business continuing after his death. Those documents seem to be wholly inconsistent with the promise on which Parveen now relies and which seem to have been asserted for the first time only when the tutor proceedings were commenced.

45 I regard the earliest will as particularly significant in that it was made a mere three and a half years after the initial alleged promise to, or agreement reached with, Parveen (in reliance on which she says that she gave up her partnership interest in UV Enterprises) and at a time when, had such a promise or agreement been made, it would presumably have been fresh in Sid’s mind.

46 In the 1993 will, Sid left the shares of the company to Gautam, Vikram and Neil (the last, being the son of Naval) in equal shares, subject to certain conditions (including their participation as employees and managers of the company for three or more years before the vesting date). Significantly, what Sid then had in contemplation was that the shareholding of the company was to be distributed equally among the eldest son of each of Sid’s three male children. Parveen was not a beneficiary of any shares (but was to be appointed a member or alternate member of an advisory panel with responsibility for determining the needs or educational needs of the three grandchildren for the purposes of the testamentary provisions which were to apply prior to the first vesting date under the will). Perpetual Trustee Company Ltd was appointed as the trustee under the will.

47 At the time of the 1993 will, Sid signed a document headed Explanatory Notes in which he referred to the arrangements in relation to each of his children and, with respect to Subash, recorded that:

48 This is of relevance insofar as it is consistent with Sid’s later comments both in relation to other wills and as to his assessment of Parveen’s abilities given in the witness box (whether or not those comments are justified, or reflect a view as to the role of women in his company, is something on which I cannot express any opinion) and it is silent as to any arrangement in existence between Sid and Parveen as to the shareholding of the company.

49 One can only conclude from the 1993 will, read with the Explanatory Notes document, that either Sid had no understanding that he had made or was bound by any commitment to leave the company or shares in the company to Parveen or that he was deliberately proposing to flout that commitment (and, not only that, he was also acting deceptively or, in the words used in Taylor v Dickens [1998] 3 FCR (UK) 445; [1998] 1 Fam Law R 806), distastefully towards Parveen in allowing her to continue to provide services to the company unaware of his intention to breach that commitment). (Mr Petersen submits that, as a matter of natural justice to the deceased, I should not make any finding that he behaved deceptively in the absence of Sid to defend himself.)

50 Deepak deposes to Sid having described the contents of that 1993 will both to him and to Parveen. (Parveen, however, denies having any knowledge of the content of Sid’s wills until 2008 when Mr Czinner’s file was obtained by her or her lawyers.) I consider the credit of the respective witnesses in due course. Suffice to note that in the absence of corroboration I approach Deepak’s evidence with some caution.

51 On 2 August 1993, Parveen ceased to be a director of the company and Ms Ruby Shirazee (a family friend of the Varma family, referred to as Auntie Ruby or Ruby Auntie, who seems to have lived in the Varma home and cared for Sid for many years) was appointed a director of the company (a position held by Ruby until her resignation on 12 June 2008).

52 On 10 January 1995, Sid made a further will and, again, signed Explanatory Notes in relation to that will. Under the 1995 will, Sid’s shares in the company were again left for the benefit of Vikram, Gautam and Neil (with provision, prior to the vesting date, for funds to be applied for their educational needs as determined by a panel including Parveen). In those Explanatory Notes, Sid said:

53 According to Mr Davenport (para 28 of his affidavit), in the late 1990s, Sid told him that he had employed Vikram in the company after he graduated in 1996 but that he had subsequently terminated that employment and had said “Vicky and I are unable to continue in business as it is unworkable and so I am giving him the Thai Rice portion of my Business, for him to strive independently”. (I note that the statement that Sid was ‘giving’ Vikram the rice business seems to be inconsistent with any concern on Sid’s part that Vikram might compete with the company. Indeed, the only time that this seems to have been raised as an issue was at the time of the purported removal of Vikram as a director (in which it might be inferred that Gautam and Arjun had a hand, having regard to the events around that time which I consider in due course in the chronology of events) and when Sid’s final will was prepared. In the witness box in the tutor proceedings, however, Sid disclaimed any concern at Vikram’s business operations. That leads me to suspect that the reference in the will to Vikram’s business (apparently as something to justify Vikram’s exclusion from the will) was something prompted or put forward by Gautam/Arjun and did not reflect Sid’s own feelings in the matter and, if so, indicative of some influence which they held over Sid at the time. However, as this was not directly put to Gataum/Arjun I make no finding on this issue (and, in any event, it is not relevant to the determination of the proceedings in light of the finding I have made as to the making of the alleged promise).)

54 On 28 November 1996, Sid made a further will and a statutory declaration. This is the first will in which Arjun (or any grandson who was not the oldest in his own family) is named as a beneficiary of shares in the company. None of the shares in the company was left to Parveen under that will and she was not one of the panel nominated to determine the educational needs of Arjun and Neil, for which provision was made prior to the vesting date. The statutory declaration stated “as the business is making a turnover of $2 million, there is a need to ensure that there is a dedicated and knowledgeable manager and it is my belief that my grandsons will have the necessary acumen to manage my business … I have left my residuary Estate to my four grandsons, Vikram Varma, Gautam Varma, Arjun Varma and Neil Varma as I feel that they have the necessary training to continue my business”. (It is not clear what ‘training’ Sid had in mind that his grandsons, or more particularly the youngest, Arjun, who at that stage was in his teens, had at that stage to equip them to carry on his business.)

55 Mr Davenport deposed to a conversation with Sid some time in 1997 in which he says Sid said to him “I am not sure as to which grandson will succeed me in the business. I want to create a trust to protect it from falling into the wrong hands. The Business must continue after me” (para 29 of his affidavit).

56 On 29 May 1997, Sid executed a trust deed (on its face prepared by Perpetual Trustee) establishing the Sid Varma Trust, which was varied by Deed of Variation shortly afterwards on 2 July 1997. He made a Statutory Declaration on 29 May 1997 (Exhibit F pp 53/55) apparently prepared by Perpetual Trustee in which he recited his background, noted that he had paid dowries for his two daughters and that all his children had attained fifty years of age and resided independently in good comfort with their families (owned houses and were settled in life) and not dependent on him or his funds. He commented on the status of each of his children and noted “My son SUBASH and his wife immigrated into Australia on 7 Sept. 1988 and are Citizens. They own Residential Property and both are well employed; their son has Graduated and owns a new car.” The statutory declaration goes on to record that “The wealth in Australia and Goodwill of business Taj Food Sales Pty Ltd T/A U V Enterprises are self acquired owned by me only. None of my children is dependent upon me financially or emotionally; everyone is occupied with respective personal commitments.” (emphasis in original).

57 Also on 2 July 1997, Sid made a further will, this time leaving his residuary estate to the trustee of the Trust he had established “primarily for the benefit of my grandchildren, great grandchildren and or their legally wedded spouse” and noting in clause 6 of the will his belief that his children were well established and consequently that he had not left his residuary estate to any one or more of them but that their children and grandchildren had been provided for by the Trust.

Business from 1998-2000

58 By 1997, it seems that Sid had consulted Mr Czinner in relation to his business and personal affairs. There was in evidence a letter of 29 August 1997 (Exhibit F p81) from Sid to Mr Czinner noting that “As my succession plan has not worked there is no option but to sell my Business to benefit Goodwill” and enclosing his will and trust deed. (By this stage, the only grandson who had worked in the company was Vikram, so the reference to Sid’s succession plan not working was presumably at least in part referable to the fact that Sid had formed the view that he was unable to work with Vikram.)

59 Following that it appears that Mr Davenport (para 30 of his affidavit) worked in the company for a short time (between October 1998 and December 1998) but he says that the business relationship was ‘unworkable’. (I interpose to note that Mr Davenport seems to have been but one in a serious of family members who found it difficult to work with Sid, including Gautam himself according to a September email to which I will later return. This suggests that Parveen’s dedication to Sid over the years was all the more remarkable and deserving of recognition.) He described Parveen’s role at that time as Sid’s secretary and says she was responsible for clerical work ‘as designated’ (which I can only assume means as designated by Sid). (Sid himself said in evidence in the tutor proceedings that he did not type and that he dictated documents which were put before him then to sign.)

60 According to Deepak, in 1998 Sid spoke to him and requested that he send Gautam and Arjun to Australia to learn about the business. Deepak says that Gautam and Arjun visited Australia for a month at that time.

61 In April 1999, Parveen resigned from employment with the company. Relevantly, it does not appear that anything was said at this stage by Parveen to suggest that she was under a belief that she was entitled to a prospective interest in the company, whether by way of contract or as a result of her reliance on promises made by Sid. Nor does it appear that Sid’s efforts to encourage her to return involved any assertion by him that Parveen was in breach of a contractual arrangement in having left the company’s services (as would seem to have been the case on the representations as pleaded in these proceedings.) Rather, Parveen says that he asked her to come back in the context of the promise that the company was or would be hers.

62 On 18 November 1999, the company established its registered office in Gladesville, which was Sid’s home up until shortly before his death.

Involvement of Arjun in business

63 According to Arjun, in 2000 Sid told him that he wanted him to move to Australia to pursue his higher education and to work in the company. Arjun says that his grandfather said “I am getting old and I see you as part of my succession plan”. Deepak in his affidavit corroborates this when he says that in 2000, Sid told him that he wanted a decision to be made as to whether Gautam and Arjun would want to join in the business. Deepak also said that his father said he had given Vikram a chance to work in the business “but he has failed me miserably” (which, apart from the pejorative flavour of Deepak’s evidence, is consistent with the evidence of Mr Davenport).

64 The context in which this conversation took place, again according to Deepak, was that Sid was considering an offer to sell the business or the goodwill of the business. This is consistent with Mr Davenport’s evidence (in para 32 of his affidavit, which I admitted subject to relevance) that Sid had told him he had been approached to sell the business and that he was considering that ‘very favourably’. (Mr Davenport also said that Sid told him he had been assured by the potential purchasers that Parveen and Subash would be kept employed by the ‘new management’.) Mr Castino similarly deposed to conversations with Sid in 2000/2001 in which he says that Sid said that he was thinking of selling the company.

65 In April 2000, Parveen resumed employment with the company. A copy of a formal job offer was in evidence. (I note this because it seems to me that Sid was somewhat of a ‘stickler’ for compliance with notice and other formalities in the employment context (at least insofar as his employees seem to have been required to submit written applications even for minor amounts of time out of the office – and medical certificates if they were not in attendance.) Although there was a suggestion that this was something done to provide a written record of Sid’s approval (in case he forgot that he had given that approval), as per Carin’s evidence, there is no suggestion that this would have been necessary as at 2000. Insofar as the documents indicate a disposition on Sid’s part for record keeping of even relatively minor administrative arrangements, this is inconsistent with the absence of any record of the promise or agreement on which Parveen relies.

66 In 2001, Arjun immigrated to Australia and commenced part-time work for the company while studying at Macquarie University. For a time, he resided with Parveen and her family. During this time it is said that he became aware (through conversations with Parveen) that Sid had promised to leave her the company in his will. His response (according to Parveen, and quite revealing as to his later conduct if Parveen’s version of events is accepted since it suggests a means by which Arjun may have been attempting to subvert any such promise), was to enquire whether there was anything in writing. Parveen says that she told Arjun that Sid never showed her any of his wills (see paragraph 52 of Parveen’s 4 November 2009 affidavit).

Discretionary trust

67 Mr Castino deposed to a proposal by Sid in 2002 to establish a family discretionary trust which would hold the shares of the company. He gave advice to Sid in relation to this (in a letter referenced “Succession Plan”, dated 10 January 2002 (Exhibit O p71)), noting Sid’s wish that the business be continued “for the benefit of family members who reside in Australia and overseas” and noting Sid’s advice that it was his intention to transfer board control in the company to other directors and that a new general manager be appointed to run the business.

68 Mr Castino met with Sid on 17 April 2002 (his notes of that meeting being at pp74/76 of Exhibit O) to discuss matters in relation to the proposed trust (including matters relating to stamp duty, capital gains tax and franking credits). That note records what was presumably Sid’s advice at the time that (which was incorrect) the company was incorporated in 1992 and that (which may well have been correct) it had built up retained earnings of $1million. The note records that the controlling shareholder [Sid] “wants to retire and transfer all his assets (being shares in the company) to family trust”.

69 Parveen was appointed a director of the company on 23 April 2002, at a stage, therefore, when Sid was in the midst of considerations as to a proposed transfer of the shares in the company to a family trust, yet there seems to have been no discussion with Parveen as to those plans (something again indicative of Sid having no sense that he was under an obligation to transfer the shares or leave them on his death to Parveen).

2002 will

70 In evidence was a handwritten note dated 7 May 2002 prepared by Mr Czinner of a discussion with Sid (Exhibit F, p 52) referring to his will (and other matters which may or may not be related – including “Winding up – No Contracts”) and noting under the heading “1. Will” the words “(A) Change to will (B) Share sold/or transferred prior to death”. The note also includes a reference to the “accountant De Castino Ryde”. According to the invoice rendered on 14 May 2002, this was a 35 minute conference.

71 On 20 May 2002, Sid sent a handwritten document to Mr Czinner referring to his visit the previous week and submitting an outline of his “idea of the ‘will’ proposal” (Exhibit F p47).

72 There is in evidence a copy of a letter from Mr Castino to Sid on 30 May 2002 referring to a meeting on 27 May 2002 in relation to Sid’s “succession plan”, which contemplated payment of a “Golden Handshake Eligible Termination Payment” to Sid and for Sid then to be able to proceed with the transfer of his shares to new shareholders (Exhibit O p54).

73 From the documents on Mr Czinner’s file, it seems a draft will was forwarded to Sid by letter dated 20 June 2002 providing for the appointment of Mr Castino as trustee and leaving the residuary estate to the Sid Varma Family Trust. The covering letter notes instructions from Sid not to be concerned about the Trust Deed ‘or any other issues’.

74 Sid made various handwritten amendments to the draft will and included a typed clause 10 (relating to the continuity of the business of the company and empowering each of Ruby, Parveen and Arjun to appoint managers operate as owners and do all things at their discretion to achieve continuity, and providing that Ruby hold veto powers). Mr Czinner apparently advised on 5 July 2002 that condition 10 could not be included in the will “as explained in our initial conference”.

75 On 10 July 2002, Sid signed the will which had bee prepared by Mr Czinner, in which he left his residuary estate “including my shares in Taj Food Sales” to the trustee of the Sid Varma Family Trust (and without clause 10 which had been the subject of Mr Czinner’s advice). Sid informed Mr Czinner that he had located a power of attorney made previously and forwarded a document referring to his attorneys as Ruby and Parveen (but with the handwritten addition of Naval and Deepak).

76 Sid then seems to have changed his mind as to utilisation of the trust as a vehicle for his testamentary dispositions. On 19 December 2002, Sid made another will, under which the shareholding of the company was left in equal shares between Parveen, Ruby, Naval and Deepak. This is the first will in which Parveen is named as a beneficiary (and under this will she is left not 100% but 25% of the company shares). Parveen was named as an executor. Mr Czinner deposes in paragraph 32 of his affidavit that he advised Sid to inform his attorneys (Parveen and Ruby) about his will and that Sid said he would do so. Sid’s affidavit in the tutor proceedings (paras 25-29) refers to this will and says that he told Parveen about his will. (For the reasons I set out in due course, I approach Sid’s October affidavit with some caution.)

77 On 11 March 2003, Sid signed a letter prepared by Mr Czinner notifying Perpetual that he had made a new will under which Perpetual was not appointed as executor or trustee and authorising it to send his will and any documents to Mr Czinner’s office (Exhibit F pp216/217).

Involvement of Gautam in business

78 According to Gautam, in January 2003, when Sid visited India, Sid told Gautam’s mother (Sid’s daughter-in-law) Sangeeta (who did not give evidence in the proceedings) that he was “grooming Arjun…who will soon be joining my business on a permanent basis and now I also require Gautam”.

79 Arjun was appointed a director of the company on 13 June 2003 and in January 2004, Arjun commenced working full time with the company.

80 Around this time, Sid was apparently still considering retirement. Annexed to Parveen’s affidavit of 4 November 2009 (Annexure H) is a copy of a handwritten file note of Mr Czinner dated 16 January 2004 of a half hour attendance on Sid:

Attended Mr Varma - he intends to retire – feels tired – still very astute)

without Parveen business would not run

last month he gave money to his children (my emphasis)

2004 will

81 On 22 January 2004, Sid made a will leaving one third of the shares in the company to each of Arjun, Parveen and Ruby. (Insofar as it included Ruby, she later signed a letter in which she referred to this bequest as being her having been nominated in a ‘caretaker’ role – though that was not explained.)

82 In his 8 October 2008 affidavit affirmed in the tutor proceedings, Sid deposed to having shown his 2004 will to Ruby and to Parveen (paras 30-32). Again, I treat this evidence with some caution as it seems to me unlikely that Sid would have had an independent recollection of this without some form of prompting or being able to refresh his memory from any notes at the time (given his evidence generally in the witness box).

83 Nevertheless, Sid seems to have enlightened at least some family members as to his testamentary intentions at the time. According to Mr Davenport, in 2004 Sid told him that he had changed his will and had made Arjun one of his beneficiaries “as I see him as one of the appropriate grandsons to carry on the business” (para 34 of his affidavit). Mr Davenport also deposed to a conversation in late 2004 with Sid in which Sid said he had considered bringing in his grandson, Gautam, and that he foresaw Gautam as one of the future successors of his business (para 35 of his affidavit).

84 According to both Arjun and his wife, Seemita, in June 2005 Sid showed his 22 January 2004 will to them. Seemita was cross-examined as to her recollection of the events on this occasion and was able to explain her recollection by reference to the layout of the document she had seen. Mr Petersen relies on this as evidence that Sid was not secretive about his wills. While I accept Seemita’s evidence on this issue, it is inconsistent with the evidence minuted in the 2008 board minutes that the later 2008 will was to be kept confidential and I do not accept that this makes it any more likely that Sid would have shown his earlier wills to Parveen. Rather, it seems to me consistent with the behaviour to which Carin’s father (Mr Peter Hillman, whose evidence I also generally accept) deposed, namely of Sid assuring those who were becoming part of his family or their relatives that they would be well looked after by him as head of the family.

85 Nevertheless, none of that sheds any light on what Parveen was actually promised at the time the company was incorporated.

Arrival of Gautam

86 A visa application for migration to Australia had been lodged by Gautam in 2004 and Mr Castino had written on behalf of the company to support that application, by letter dated 2 August 2004. There was a subsequent letter of 3 March 2005 from Sid, signed by Parveen as company secretary, in relation to the immigration application in which reference is made to Gautam’s proposed role in the company (on which letter reliance was placed by Mr Petersen as showing reliance on Parveen’s knowledge of Sid’s succession plans). It seems to me that little weight can be placed on this, given that Sid seemed to use the notion of succession plans in the sense of a test as to who would be the appropriate person to manage the company into the future (rather than specifically in relation to testamentary succession or share transfers).

87 Furthermore, there is evidence to suggest that Sid was expressly disclaiming any then intention to give the ownership of the company or his shares in it to Gautam (namely a statement signed by Sid on 27 June 2005 and left on Mr Czinner’s file with his wills). It seems that in June 2005, Sid thought it necessary to document a caution in relation to ‘possible fraudulent misuse’ by his son Deepak of company letterhead to act in a manner contrary to Sid’s then final will (being the 2004 will). Relevantly, the letter signed by Sid (which Carin says was found on Mr Czinner’s files) on 27 June 2005 includes the statement that:

88 That document would suggest that the statements as to succession plans in relation to Gautam did not reflect any testamentary intention as at that stage (notwithstanding that Sid saw Gautam as a potential successor to his business, just as he had seen each of his three oldest male grandchildren (Vikram, Arjun and Neil) as potential successors.

89 Arjun and Seemita (in remarkably similar terms) depose to a conversation which it is said took place at Vikram’s house in mid 2005 in which they say Arjun told Parveen that he had been included in Sid’s will and was getting one-third of the shares. According to their version of the conversation Parveen said she knew this. Parveen says there was a dinner to celebrate the marriage between Arjun and Seemita and the only discussion was a social one. While it might seem unlikely that testamentary matters were the topic for discussion on such an occasion, it may well have occurred. I note that, during her cross-examination, Seemita gave evidence which suggested that Arjun might have prompted her recollection as to the topic of the conversation, which could cast doubt on the reliability of her memory on this occasion. In any event, it seems more likely that any discussion was as between the cousins and their spouses since the impression I formed during the evidence of the various family members was that Parveen had largely removed herself from discussions in relation to matters relating to the shares – whether as an issue or respect or in disdain for the topic. The only relevance of this conversation (apart from going to matters of credit) would seem to be the defence based on acquiescence by Parveen and I have difficulty in seeing how that defence is made out viz a viz Gautam and Arjun, as I discuss later. Suffice it to note that I think there is sufficient doubt as to this conversation to prevent any adverse inference being drawn against Parveen.

90 In October 2005, Gautam emigrated from India to Australia, initially residing with Sid at the Gladesville house, and commenced work for the company. Parveen deposes to conversations with Sid, after Gautam’s arrival in 2005, in which she says Sid said to her in Gautam’s presence that after he died the company would be Parveen’s (paragraph 47 Parveen’s 4 November 2009 affidavit).

91 Carin deposed to a conversation during her engagement party on 27 November 2005 in which she said Sid told her father (in Parveen and Carin’s presence) that “If it was not for her [Parveen] the company would not exist. She will take over the company and it is one hundred percent hers in my will” (para 27, 17 September affidavit). If that statement was made as deposed to then it was clearly false as at that time the current will (made in January 2004) was quite different. Mr Hillman’s evidence was broadly in accord with this. As noted below, I generally accept the evidence of Mr Hillman. However, there was some (understandable) confusion as to what precisely was said to him in this regard and the glaring inconsistency between the statement as to the will and the testamentary documents as they stood at all times (there never being any document which left Parveen with 100% of the shares) suggests to me that Mr Hillman’s recollection may have been imprecise in this regard – and that at most what Sid was more likely to have said was that the business would be Parveen’s or run by Parveen after his death (neither of which would necessarily involve 100% ownership of the shares).

92 Carin also deposed to a conversation (at [29]) in the presence of Arjun and Gautam and Parveen by Sid to the effect that “You [Parveen] are getting the company, you know this company is yours” (see also para [6] of her second affidavit dated 2 March 2010).

93 Parveen recalls a conversation between Sid and Arjun at which she was present in December 2005 in which she says Sid told Arjun to tell his father to keep his eyes off the business and that it was to go to Parveen and Subash (paragraph 49 of Parveen’s affidavit 4 November 2009). (This seems consistent with the concern Sid displayed at any involvement by Deepak in the business.

2006

94 On 2 March 2006, Gautam became a director of the company. In May 2006, he received an ordinary share in the company. Arjun also received one ordinary share in the company that year.

95 Also in March 2006, Carin visited Deepak’s family in India, after her participation in the Mrs World contest overseas. This visit is of relevance because of the fact that Carin says that when she visited the family she set up an email account for Sangeeta to use so that she could communicate with her sons in Australia. Carin says that she showed Deepti how to use the computer email system. In the course of setting up the account, Carin set up the special password on the account (something which she says she later used in order to have access to Gautam’s email communications with his mother and, by inference, his father – though Deepak denied any computer literacy).

96 It seems fair to say that the first indications of trouble within the two branches of the Varma family working in the company emerged after Gautam’s arrival on the scene, though whether or not that is coincidental I do not know. It does seem, however, from evidence I will come to shortly, that Gautam was in a hurry to be given recognition within the company and/or an assurance that he would inherit a part of the company. It certainly seems that around 2006 there was some jockeying for position as between the respective cousins (Gautam, Arjun and Vikram) as to which side of the family would find the most favour with Sid. There were, it seems, accusations of jealousy or rivalry on both sides (and, in that context, Carin’s comments in the witness box that Sid was ‘infatuated’ with Gautam, while they suggest some emotion on her part are given some credence by the fact that the doctors who assessed Sid later at Concord hospital both spoke of the high regard in which he held Gautam and it certainly seems that by the date of Sid’s death Gautam was the favoured grandson).

97 Two matters seem to have sparked dissension within the Varma family at this time – the so-called ‘cashew nut’ incident and the sale of Sid’s property in India (C-559 Defence Colony, New Delhi).

Cashew nut incident

98 As to the first, at some stage in 2006 an issue arose as to the responsibility within those working for the company for monetary losses arising from the discovery that a batch of cashew nuts imported by the company was defective. Objection was made by Mr Petersen to much of the affidavit evidence relating to this topic and I expressed the view that the responsibility (as between the various family members) for those losses was irrelevant to any issue in the proceedings. I remain of that view. The only peripheral relevance I can see, in what was clearly a rather vexed matter within the company, in relation to the defective cashew nut incident, arises in the following ways.

534 Where there is a sufficient relationship of dependence such as to give rise to the presumption of undue influence, as I think is the case here given Sid’s advanced age, his dementia and his physical dependence on and affection for his grandsons, the law requires that persons in the position of Gautam and Arjun positively justify the retention of the benefit conferred on them, namely to show that the gifts conferred on them were the independent and well understood acts of a man in a position to exercise a free judgment based on information as full as the donee. It is not necessary for there to have been an actual use of influence for the purpose of obtaining the benefit; ie that undue influence be proved as a fact. Rather, as Asprey JA in Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540, says (at 167):

… where the relations between the donor and the donee have at, or shortly before, the making of the gift been such as to raise a rebuttable presumption that the donee had an undue influence over the donor. … the court sets aside the gift unless the donee rebuts the presumption. The court does not act on the ground that any wrongful act has been committed by the donee, but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused: Allcard v. Skinner (1887) 36 Ch D 145 at 171 (my emphasis)

535 In Allcard v Skinner (1887) 36 Ch D 145; [1886-90] All ER Rep 90 it was said that once the facts are established (as it seems to me they are here) from which the court will infer that a situation exists where undue influence may have been exerted, then the presumption arises and the onus then falls upon the donee to rebut the presumption by proving that “in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the court in holding that the gift was the result of a free exercise of the donor's will”. As Deane J noted in Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 (at 423) when undue influence is raised, one looks to the quality of the consent or assent by the weaker party.

536 Relevantly, the fact that Sid may have expressed the intention (to Mr Castino or Mr Czinner or Mr Ciaglia) to make the share transfers or to change his will in the way he did is not sufficient. The question is how that intention was produced. It was said in Huguenin v Basely (1807) 14 Ves Jun Supp 273, at 299-300:

537 In Whereat, Asprey JA said (at 168-169):

The ability of the donor to understand and intend that he is making a gift will not by itself necessarily operate as a bar to equitable relief

538 (Therefore, to the extent that Gautam is said to have suggested to Carin that Sid’s dementia did not stop him making a gift, he was clearly wrong as a matter of law. If there was a position of presumed undue influence then such a gift might well be unable to be retained.) The evidence adduced for Gautam and Arjun to show that Sid understood and intended to do what he did is the evidence of the professional advisers with whom Sid consulted at the time. However, those consultations seem to have been ones in which Gautam and/or Arjun participated or facilitated. I am particularly concerned that the circumstances in which the March 2007 transfers were cancelled suggests a direct involvement of Arjun and a willingness on his part to manipulate his grandfather in order to make dispositions in his favour. In those circumstances, his involvement in the 2008 dispositions, even if peripheral as he seeks to suggest, would give rise to doubt as to the independence of Sid’s decision making. I would not have been satisfied on the evidence before me that the presumption of undue influence was rebutted.

539 As to capacity, that is a different issue. It is clear that the test is “issue specific” (Masterman-Lister v Brutton & Co [2003] 3 All ER 162 and see Dalle-Molle. Capacity is therefore to be tested by reference to the particular transaction or conduct in which the person proposes to engage. The capacity required for a testamentary disposition may be different from that required for a financial transaction.

540 In Gibbons v Wright, the principle was expressed as follows (at 437-438):

The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. … whether the person concerned is capable of understanding what he did by executing the deed when its general purport was explained to him.

the capacity to understand the nature of that transaction when it is explained

541 I am not convinced that the evidence would have enabled a final finding on that issue, nor it seems was one ultimately pressed, insofar as it was not clear to me precisely what had been explained to Sid as to the respective transactions (Mr Castino having given general evidence at best about a discussion as to various matters in relation to the transfers and then expressed the view that Sid appeared to understand it; Mr Czinner having based his conclusion on two particular matters in relation to the drafting of the will but without explaining how he had satisfied himself as to matters of general testamentary capacity; and Mr Ciaglia referring to more general matters). As noted by Mr Petersen, the medical reports by Drs Casey and Waite were prepared at a time well after the share transfers and April will were executed (and neither addressed the question of testamentary capacity in October 2008).

542 There was some evidence that Sid considered it necessary in order for his grandsons to have a role in the management of the company (as he wished them to do) that he needed to issue shares to them. If that was the basis of his understanding when the April and June 2008 transfers were made then it might perhaps be said that he did not have a proper understanding of the nature and effect of the financial transaction he was undertaking. However, I think there is insufficient evidence as to this (and Sid’s evidence in court, after a period of hospitalisation and when he was in the last month of his life, does not assist in knowing what his understanding was earlier that year.) Therefore, I do not consider that I could make any finding as to Sid’s capacity to make the share transfers at the relevant times.

(vii) Discretionary and other defences

543 Gautam and Arjun rely upon a raft of discretionary defences – laches, acquiescence, unclean hands, and the assertion that these proceedings are an abuse of process. They also assert that Parveen by her conduct abandoned and is estopped from pressing her claim. As I have found that Parveen has not established her claim, I do not propose to deal with these matters in detail.

Laches/Acquiescence

544 In Orr v Ford (1988) 167 CLR 316, at 340, Deane J noted that the availability of a defence of laches and what will suffice to make it good depends on the nature of the claim, citing Hanbury, Modern Equity 6^th ed, Stevens & sons, 1952, at p349 for the proposition that even in the case of equitable claims “laches finds a Bluebeard’s Chamber … in a claim against an express trustee for recovery of trust property”, noting however the qualification that where there has been “gross laches” this may be raised as a bar to an express trust. Here, Parveen’s claim (even where based on contract) is one is one in which an equitable remedy is sought.

545 By way of relief, Parveen has claimed a declaration that Sid was constructive trustee ‘for himself for life and thereafter for her’ of all of the shares held in his lifetime in the company and that she is, and upon the death of Sid became entitled to the whole of the legal and equitable estate and interest in the whole of the share capital of the company held by Sid in his lifetime; and orders that the estate transfer to her the shares retained by it and that each of Gautam and Arjun cause to be transferred to her all of the shares registered in their names in the company. (An alternative form of relief seeking the transfer by Gautam and Arjun of the said shares to the legal personal representative of the estate and for the transfer by the legal personal representative to Parveen seems unnecessary in light of the appointment of Gautam and Arjun as executors.)

546 Mr Petersen submitted that, here, Parveen had been guilty of laches or acquiescence and that her delay in commencing the proceedings had prejudiced the defendants throught the loss of evidence of Sid.

547 The delay in question is said to be the fact that Parveen, though she knew by 28 June 2008 at the latest that Sid had breached or committed an anticipatory breach of the alleged agreement did nothing to assert her contractual rights until September 2008 (when she deposed in her affidavit to the existence of the alleged agreement), did not commence proceedings on this claim until after Sid died; and pressed on with the tutor proceedings after Sid died.

548 Deane J in Orr v Ford (at 339) described the field of operation of the doctrine of laches as defined by “the circumstances in which equity will, without need to resort to the rules governing other more particular defences and in the absence of applicable statutory provisions, refuse relied by reason or standing by or lapse of time before action”. His Honour (at 337) had noted that the term acquiescence, strictly used, indicated the contemporaneous and informed acceptance or standing by which is treated as assent to what would otherwise be an infringement of rights but that in common parlance it was also used to refer to a representation by silence of a type which may found an estoppel by conduct; acceptance of a past wrongful act in circumstances which give rise to an active waiver of rights or release of liability or an election to abandon or not to enforce rights.

549 In this regard, Mr Petersen in his submissions seems to rely upon laches largely as a defence to the claim against the estate (though asserting that the loss of prospective evidence also prejudices Gautam and Arjun). He asserts that Parveen denied Sid the opportunity to defend himself and submitted that during his life Sid had an entitlement to natural justice and procedural fairness to which he had been denied by reason of laches. Leaving aside for the moment the submission that there was any obligation owed of natural justice owed to Sid (which submission I treat as being emotive rather than a strict legal submission), what was the delay?

550 Parveen became aware that Sid was proposing to transfer or had transferred shares to Gautam and Arjun by the end of June. She sought advice as to the position and she spent some time searching for documents or evidence in support of her assertion that the share transfers should be set aside. She commenced the proceedings in September. In the meantime, Sid, through the various proposals put in relation to the shareholding was on notice that Parveen and her family were unhappy with the events which had occurred and were at least complaining that this was not a fair distribution of the shares as between the respective parties. By October at the latest, Sid appears to have been aware of the potential for a challenge to the will and/or the share transfers (at least insofar as the October will expressly contemplated that as a possibility in clause 4). Mr Castino and Mr Czinner were clearly on notice of that possibility in March (and one might think that, consistent with their professional obligations, they would have alerted Sid to this). Insofar as Sid, through his solicitor, was asserting a capacity to understand and give instructions in relation to the tutor proceedings in which the alleged agreement had been asserted, Mr Czinner might perhaps have been expected to have sought at least initial instructions as to the claimed agreement for the purpose of advising Sid as to his position. Mr Petersen says that it may be inferred that Sid would have fought against Parveen’s claim for all the shares. Presumably he would not have done so without obtaining legal advice from his representatives. That advice (if properly considered and based on all the evidence) may not have been available before Sid’s death in any event.

551 Mr Petersen submitted that had the matters been raised by 21 October 2008 when Sid was in the witness box then “all the accusations of puppet-mastery and of blind signatures upon documents could have been thoroughly ventilated” while Sid was alive. (In passing I note that that assumes, rather optimistically perhaps, that had the present proceedings been instituted in September in place of the tutor proceedings matters would have reached the point where the issues could have been “thoroughly ventilated” by then. Given the course which the present litigation has taken I rather doubt that.)

552 Mr Petersen’s complaint, in part, seems to be that on 21 October 2008 Parveen’s Counsel did not look Sid in the eye and ask whether he had promised his shares to Parveen and that in those circumstances Parveen had somehow concealed what was already stated in her affidavit (namely that there had been such a promise).

553 In my view, there has not been sufficient delay to amount to laches. There is no reason to think that the benefit of Sid’s evidence would not have been lost in any event, given that (with hindsight) we know that he had little time left to live. Further, where there is a real question as to Sid’s ability to recall events accurately, any prejudice by reason of the delay in asking him about the events in question may be more apparent than real.

554 As to acquiescence, I do not think it can be said that Parveen stood by and allowed the share transfers to take place without asserting her rights in an real sense. Rather, there seem to have been concerted steps taken to conceal the fact of the share transfers until they had taken place. Parveen’s signature to the board minutes seems to have been after the event. It was not in my view inappropriate for Parveen to obtain legal advice as to her rights before asserting them to all and sundry.

555 That said, where is seems to me that there may be said to have been some scope for a defence based on acquiescence (whether that be in the sense of an abandonment rights seems to me somewhat less likely) would be in the context of Parveen’s inaction after the July 2007 announcement by Sid that he proposed to give or leave shares to Arjun. However, Parveen did make complaint about that (albeit not in the terms now made) and Sid assured her that there was no intention to give Arjun a controlling interest. Even allowing for the distinction between participation and controlling, it seems that Parveen’s opposition to the situation was known. I cannot see that there has been any reliance by Sid on a lack of opposition by Parveen that would make it inequitable for Parveen now to have asserted her rights, nor do I see any detrimental reliance by Gautam and Arjun on the receipt by them of the shares so as to make it inequitable for relief now to be granted, and I do not consider that the defence based on acquiescence is made out. (Insofar as the estoppel defence based on an alleged representation arising out of Parveen’s failure to lodge a claim at the time of the initial transfers – which was said to be an abandonment of her claim – differs from the defence based on acquiescence, I would find that it similarly fails.)

556 As to unclean hands, this turns on the certification to this Court by Parveen (and/or her solicitor) that as tutor Parveen had no claim adverse to that of Sid. Insofar as the certification is concerned, the evidence before me was that Parveen had been advised by her then Senior Counsel that she was required to provide the certification and had been advised that it was appropriate to do so. Whether or not it was appropriate (and I think it was not) for Parveen to put herself forward as tutor in circumstances where there was clearly scope for a conflict of interest to arise, I cannot see a lack of good faith or unclean hands in her having acted on the advice of her Senior Counsel in that respect.

557 Further, the claim that there was an alleged agreement was not one which was concealed, in the sense that Parveen’s initial affidavit deposed to it. What was not communicated was an intention on the part of Parveen to sue on that alleged agreement. It is not apparent to me that at that stage Parveen was intending to do so – rather, her evidence was that she was seeking to have the shares returned to Sid. That is consistent with her seeking to preserve the status quo.

558 For a defence based on unclean hands to be made out the conduct must go to the unconscionability of pursuing the claim for relief which is pursued. This will be made out where there is an “immediate and necessary connection” between the conduct said to make the plaintiff’s hands unclean and the equity claimed (Dering v Earl if Winchelsea (1787) 1 Cox 318, at 319-320, see also On Equity, at [3.330]). In On Equity, (at [3.330]) it is explained that this “immediate and necessary connection” will be made out where the equity the court is being asked to assist was brought into existence by the wrongful conduct of the claimants “unclean hands” (Meyers v Casey (1913) 17 CLR 90, at 124) so that it could be said that the claimant is attempting to take advantage of his or her own wrong (FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552, at 561). The plaintiff’s conduct must be “wanting in good faith” (Sang Lee Investment Co Ltd v Wing Kwai Investment Co Ltd (183) 127 Sol Jo 410; [1983] HKLR 197, at 208.

559 Having said this, and as noted by the learned authors in On Equity “equity does not demand that its suitors shall have led blamless lives” (there citing the decision of Brandeis J in Loughran v Loughran (1934) 292 US 216, where it was stated, at 229). The inappropriate commencement of tutor proceedings does not to my mind suggest that it is unconscionable for Parveen later to have pursued her claim under the agreement – at a time when it was clear that there had been a breach of its terms.

(vii) Relief

560 In light of the findings Parveen has not established her claim for relief. Had I found that the promise in question had indeed been made and that the promissory estoppel claim was made out, then I would have ordered that Gautam and Arjun transfer their shares, and the shares held by them as executors to Parveen. As it is, I am compelled to dismiss Parveen’s claim.

Conclusion

561 For the reasons set out above, I am not satisfied that a close scrutiny of the evidence permits me to find that Sid made the promises alleged to have been made to Parveen and hence her claims fail at the first hurdle. I must say that I have not reached that decision without considerable discomfort. I am troubled by the circumstances in which Gautam and Arjun took their interests in the shares.

562 On the evidence before me there would seem to have been a strong claim that the inter vivos shares were acquired in circumstances where there was a presumption of undue influence arising from the age and mental condition of Sid, and his dependence on and high regard for his grandsons Gautam and Arjun. I am by no means convinced that the involvement of Messrs Castino and Czinner was sufficient to rebut the presumption of undue influence.

563 However, that claim was not ultimately pressed by the administrator ad litem, nor was it pursued by Parveen in her capacity as beneficiary of the estate (assuming standing would have been available to do so under Ramage v Waclaw).

564 In Taylor v Dickens (criticised on other aspects in Gillett v Holt), Weeks J said:

565 Much as I might wish for the metaphorical portable palm tree in order to permit the grant of relief to Parveen on the basis of presumed undue influence in relation to the inter vivos share transfers, I do not consider it is open to me on the matter as pleaded or the case as conducted to do so.

566 Accordingly, I dismiss the proceedings.

**********

28/07/2010 - In para 11, second sentence, the words "Relevantly Mr Rayment confirmed that" at the beginning of the sentence have been deleted, and the words at the conclusion of the sentence commencing "or as the beneficiary of a constructive trust" through to the end of that sentence, have been deleted. - Paragraph(s) 11

30/07/2010 - In paragraph 11, first sentence, the word "However," has been removed from the beginning of the sentence; the word "also" has been inserted before the word "pressed" and the word "only" has been deleted after the word "pressed". - Paragraph(s) 11

Citations

Varma v Varma [2010] NSWSC 786

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77

Turner v Richards [2025] NSWCA 83

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Varma v Varma [2010] NSWCA 358

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83

Statutory Material Cited

3

Scallan v Scallan [2001] NSWSC 1129

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Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) (No 2) [2014] NSWSC 1640

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CITATION:	Varma v Varma [2010] NSWSC 786 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15-19, 22-26, 29-31 March, 1, 6, 9, 12-14 April 2010
JUDGMENT DATE :	16 July 2010
JURISDICTION:	Equity
JUDGMENT OF:	Ward J
DECISION:	Plaintiff's claim dismissed
CATCHWORDS:	EQUITY - CONTRACT - PROMISSORY ESTOPPEL - alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff - before death of father-in-law two-thirds of shares were transferred to defendants - plaintiff claims that defendants held shares on constructive trust for plaintiff - principles requiring caution when relying on uncorroborated representations made by deceased person - HELD - plaintiff has failed to establish that a promise or representation was made that whole of company would be hers - no enforceable contract between father-in-law and plaintiff - defendants did not induce breach of contract - no express trust created in plaintiff’s favour - no promissory estoppel - CONSTRUCTIVE TRUSTS - consideration of nature of constructive trust and when it can be said to arise - UNDUE INFLUENCE - circumstances of relationship between father-in-law and defendants would have raised presumption of undue influence which was not rebutted on facts of case - relief not granted on basis of undue influence as no claim based on this ground was relied upon by plaintiff - undue influence was only relied upon to resist defence to claim for specific performance
LEGISLATION CITED:	Evidence Act 1995 (NSW) Limitations Act NSW 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CASES CITED:	Adamson v Ede [2009] NSWCA 379 Allcard v Skinner (1887) 36 Ch D 145; [1886-90] All ER Rep 90 AN v Barclays Private Bank & Trust (Cayman) Ltd [2007] WTLR 565 Angaston & District Hospital v Thamm (1987) 47 SASR 177 Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114 Austin v Keele (1987) 72 ALR 579 Australian Crime Commission v Gray [2003] NSWCA 318 Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81-655; (2002) 114 IR 165; [2002] FCA 528 Australian Building & Technical Solutions Pty Limited v Boumelhem; Boral Australia Limited v Boumelhem; Boumelhem v Jones & Ors [2009] NSWSC 460 Baden Delvaux & Lecuit v Societe Generale pour Favoriser le Development du Commerce [1992] 4 All ER 161; [1993] 1 WLR 509 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23 Barnes v Addy (1874) LR 9 Ch App 244 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 Birmingham v Renfrew (1937) 57 CLR 666; [1937] ALR 520; (1937) 11 ALJR 188 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Chalmers v Pardoe [1963] 1 WLR 677 PC Ciavarella v Polimeni [2008] NSWSC 234 Clune v Collins Angus & Robertson Publishers Pty Limited (1992) 25 IPR 246 Comet Products (UK) Ltd v Hawkes Plastics Ltd [1971] 2 QB 67 Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Consul Development Pty Ltd v DPC Estates Pty Lt [1975] HCA 8; (1975) 132 CLR 373 Cooke v Turner (1846) 15 M & W 727; (1846) 153 ER 1044 Crabb v Arun DC [1975] 3 All ER 865, [1976] Ch 179, [1975] 3 WLR 847 Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; (2004) 233 LSJS 276; [2004] SASC 102 Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545 Dering v Earl if Winchelsea (1787) 1 Cox 318 Disctronics Ltd v Edmonds [2002] VSC 454 Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Evanturel v Evanturel (1874) LR 6 PC 1 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fightvision Pty Ltd v Onisforou & Ors; Tszyu v Fightvision Pty Ltd & Ors [1999] NSWCA 323; (1999) 47 NSWLR 473 Flinn v Flinn [1999] 3 VR 712 Galaxidis v Galaxidis [2004] NSWCA 111 Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383 Gibson Chemicals Ltd v SA Sopura NV [1999] VSC 203 Gillett v Holt [2000] EWCA 45; [2001] Ch 210; [2000] 2 All ER 289; [2000] 3 WLR 815 Gillett v Holt [2001] 1 Ch 210 Gissing v Gissing [1971] AC 886 Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 Grant v Edwards [1986] Ch 638 Greig v Insole [1978] 1 WLR 302 Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641 Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298 Henderson v Miles (No 2) [2005] NSWSC 867 Hewitt v Gardner [2009] NSWSC 705 Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Holdings Pty Ltd & Anor v Leroy & Anor [2004] NSWCA 72 Holt v Protective Commissioner (1993) 31 NSWLR 227 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157; (2001) ATPR 41-831; (2001) Aust Contract R 90-133; [2001] FCA 1040 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-240 Huguenin v Basely (1807) 14 Ves Jun Supp 273 J T Stratford & Son Ltd v Lindley [1965] AC 269 Jennings v Rice [2003] 1 P & CR 100 Johnson v Buttress (1936) 56 CLR 113 Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581 Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276 Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 166 Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082 Leiberman v Morris (1944) 69 CLR 69 Legione v Hately (1983) 152 CLR 406 Lewis v Lewis & Anor [2001] NSWSC 321 Loughran v Loughran (1934) 292 US 216 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Meyers v Casey (1913) 17 CLR 90 Morris v Burroughs (1737) 1 Atk 399 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Muschinski v Dodds [1985] HCA 78; (1984) 160 CLR 583 Napier v Hunter [1993] AC 713 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Orr v Ford (1988) 167 CLR 316 Parianos v Melluish (1999) 93 FCR 191; (1999) 164 ALR 229; [1999] FCA 684 Parsons v McBain (2001) 109 FCR 120; (2001) 192 ALR 772; [2001] FCA 376 Pilcher v Rawlins (1872) 7 Ch App 259 Piras v Egan [2008] NSWCA 59 Plimmer v Mayor, &c, of Wellington (1884) 9 App Cas 699 Plunkett v Bull (1915) 19 CLR 544 Ramage v Waclaw (1988) 12 NSWLR 84 Ramsden v Dyson (1866) LR 1 HL 129 Reeves v Pope [1914] 2 KB 284 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Re Diplock [1947] Ch 716 Re Diplock; Diplock v Wintle [1948] Ch 465 Re Hodgson (1886) 31 Ch D 177 Re Jonton Pty Limited [1992] 2 Qd R 105 Re Quartz Hill; Ex parte Young (1882) 21 Ch 642 Re Sabri; Ex parte Brien v Sabri (1996) 137 FLR 165 Re Sharpe (a Bankrupt); Ex parte Trustee of Bankrupt’s Property v Bankrupt [1980] 1 WLR 219; [1980] 1 All ER 190 Risk v Northern Territory [2006] FCA 404 Sang Lee Investment Co Ltd v Wing Kwai Investment Co Ltd (183) 127 Sol Jo 410; [1983] HKLR 197 Scallan v Scallan [2001] NSWSC 1129 Secretary, Department of Social Security v Agnew (2000) 96 FCR 357 Shah v Perpetual Trustee Company (1981) 7 FLR 97 Simpson-Cook v Delaforce [2009] NSWSC 357 Smith v Smith (1986) 161 CLR 217 Soulos v Korkontzilas [1997] 2 SCR 217 Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 54 ATR 241; [2003] FCA 1025 Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536 Sullivan v Sullivan [2006] NSWCA 312 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Taylor v Dickens [1998] 3 FCR(UK) 445; [1998] 1 Fam Law R 806 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 The Will of Gaynor [1960] VR 640 Thorner v Major [2009] UKHL 18; [2009] 3 All ER 945; [2009] 1 WLR 776 Victoria University of Technology v Wilson [2004] VSC 33 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Walton v Walton (1994, Cout of Appeal, Civ Div, unreported) Watson v Foxman (1995) NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540 White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379 Wood v Mackinson (1840) 2 Moody & Robinson 273; 174 ER 286 Woolworths Limited v Kelly (1991) 22 NSWLR 189
TEXTS CITED:	A J Oakley Constructive Trusts 3rd ed, Sweet & Maxwell, 1997 Halsbury’s Laws of Australia, online edition, Butterworths Hanbury, Modern Equity 6th ed, Stevens & sons, 1952 Heydon & Leeming, Jacob’s Law of Trusts in Australia, Butterworths, 2006, Ch 5 Heydon D., Cross on Evidence, 7th Australian ed, Butterworths, 2004 Mason A, 'The Impact of Equitable Doctrine on the Law of Contract' (1998) 27 Anglo-American Law Review 1, Meagher Gummow & Lehane, Equity Doctrine and Remedies, 4th ed, Butterworths, 2002 Oakley, "The Precise Effect of the Imposition of a Constructive Trust", in Goldstein (ed), Equity and Contemporary Legal Developments, (1992) Wigmore on Evidence, J H Chadbourn (ed) Little, Brown & Co, 1978, Vol VII Young, Croft and Smith, On Equity, Lawbook Co, 2009
PARTIES:	Parveen Varma (Plaintiff) Gautam Varma (First Defendant) Arjun Varma (Second Defendant) Taj Food Sales Pty Ltd (Third Defendant) The Estate of the Late Sah Dev Varma (Fourth Defendant)
FILE NUMBER(S):	SC 2009/289939
COUNSEL:	B W Rayment QC with W Washington (Plaintiff) E Peterson with J Baxter (First, Second & Fourth Defendants)
SOLICITORS:	Hall Partners (Plaintiff) Hunt & Hunt (First, Second & Fourth Defendants)