Awad v Awad

Supreme Court of NSW|2018-05-16|Before: Walton J

Introduction

The following aspects of this part of the judgment represent a discussion of the factual circumstances which underpin the disposition of the central issues in the proceedings. As earlier mentioned, there was very little documentary record as to any contested factual area apart from the wills and limited evidence as to the mortgages. There was no documentary evidence in relation to important aspects of the matter including the promise itself, proceedings giving rise to the solicitor's bill, the solicitor's bill or the renovations.
What is set out below concerns the factual circumstances bearing upon the cross-claim broadly in chronological order, noting that the evidence leaves undefined, in some respects, the precise order of events. This discussion will broadly traverse three areas: 1. Uncontroversial background facts; 2. Controversial factual areas, which are available to be resolved in this portion of the judgment; and 3. Factual issues where the evidence on the particular topic is discussed without the final disposition of the factual issue because that final resolution depends upon the assessment of a sometimes interlocking set of considerations including credibility issues, which are necessary to consider in order to form an overall conclusion. The classic example is evidence consistent with or otherwise with a promise being made in or around 1994.

The Witnesses

The following witnesses were called to give evidence in the proceedings: 1. Michael, the cross-claimant, Michael swore five affidavits dated: 1. 28 December 2016 ("the December affidavit"); 2. 23 February 2016 ("the February affidavit"); 3. 28 March 2017 ("the March 2017 affidavit"); 4. 13 April 2017 ("the April 2017 affidavit"); 5. 8 May 2018 ("the May 2018 affidavit"). 1. Arze, Michael's wife, swore an affidavit dated 23 February 2017 ("Arze's affidavit"). 2. Jim, Michael's younger brother and Nouhad's youngest child, swore an affidavit dated 15 March 2018 ("Jim's affidavit"). 3. Paul, Michael's older brother and Nouhad's second eldest son, swore two affidavits dated: 1. 16 March 2018 ("Paul's March affidavit"); and 2. 11 April 2018 ("Paul's April affidavit"). 1. Joseph, Michael's eldest brother and Nouhad's eldest son, swore an affidavit dated 15 March 2018 ("Joseph's affidavit"). 2. Zouha, Michael's older sister, Nouhad's tutor and Nouhad's only daughter and eldest child, swore the following affidavits dated: 1. 16 March 2018; 2. 21 March 2018; and 3. 14 May 2018 (on day 1 of the hearing and filed in Court on day 2 of the hearing).
All of the witnesses were required for cross-examination.

An Overarching View of the Factual Background before and after the Alleged Promise

Tony and Nouhad migrated to Australia from Lebanon in 1963.
In September 1973, Tony and Nouhad purchased and became registered proprietors of the property as joint tenants. There was no evidence as to the value of the property.
In or around 1990, Nouhad had an accident at work, which resulted in a workers' compensation application that was unsuccessful ("the unsuccessful application").
By September 1994, as earlier set out, both Tony and Nouhad were aged pensioners. Tony was aged 67 years and retired. Nouhad was aged 58 years and had stopped work as a result of the work accident in 1990.
In 1994, Nouhad received the solicitor's bill for legal costs of $28,000 as a result of the unsuccessful application. There was no dispute that the $28,000 liability arose. Nonetheless, issues emerged around the solicitor's bill as follows: 1. Whether the bill contained a demand for payment within 28 days which, if not met, would result in legal action ("the first issue"). This issue seemed to include whether Michael was shown the bill or told by his parents of the amount of the bill; 2. Whether the legal costs (and accompanying demands) placed the property in jeopardy or Nouhad personally in financial jeopardy ("the second issue"); 3. Whether Michael promised to pay the bill ("the third issue"); and 4. Whether Michael did pay the solicitor's bill ("the fourth issue").
These issues will be discussed in detail below.
Sometime in 1994, Tony, Michael and Jim went to Lebanon. It should be noted that counsel for the cross-claimant stated that the purpose of the trip was "…to look for work, and in that context a plan to renovate the house so it's more attractive for women coming from Lebanon…".
The promise was said to have been made around September 1994.
In September 1994, Michael was in permanent employment with Amcor Paper Ltd as a Supervisor earning about $70,000 per annum.
At some stage, there was a mortgage on the property to Westpac Bank. The discharge of that mortgage was registered on the title on 27 September 1994. (During the course of viva voce evidence, reference was also made to the refinance, existence and/or knowledge of a previous loan described as "the Westpac loan". I will return to this at a later juncture in a discussion of the evidence as to "the loans").
On the same day, the issue of a mortgage was registered on the title. This mortgage was said to be the Arab Bank loan. The evidence as to the Arab Bank loan will be examined later in the judgment.
In 1995, Tony, Michael and Jim went to Lebanon again. Michael was married to Arze in Lebanon on 23 September 1995.
In about February 1996, the wives of Michael and Jim came to Australia. At that time, Tony, Nouhad, Michael, Arze, Jim and Jim's wife all lived at the property.
In May 1996, Michael had a serious accident involving him being electrocuted. The accident resulted in him losing some vision for a period of time. As a result of the accident, he could no longer work (in oral submissions counsel for the cross-claimant stated that the accident occurred in May 1995, but this was clearly a mistake). This accident gave rise to a "Total and Permanent Disability Payment" of $149,858.32, which was made to Michael's Bank Account from Colonial Life on 27 April 1998 ("the superannuation payment").
On 28 April 1998, $81,024 was withdrawn from Michael's bank account. Counsel for Michael submitted that on that day, the Arab Bank loan was discharged by Michael. This fact is contested and will be detailed further below.
In or around 1998, Michael and Arze moved to an apartment in Hurstville and lived there for about 12 months. This was an apartment that Michael got for Arze's family when they visited.
Between 2000 and 2012, Michael lived on and off overseas.
On about 19 July 2000, Michael stated he took Arze for an overseas holiday and as a thank you to her for standing by him through all his disabilities. On about 20 January 2001, Michael stated that they returned to Australia. In April 2001, they once again moved to Lebanon.
In 2003, both Tony and Nouhad had wills prepared by Theodore Solomon & Partners, made on 18 August 2003 and 8 October 2003, respectively ("the 2003 wills"). The contents and circumstances of the 2003 wills shall be discussed below.
In April 2004, Tony died of a heart attack, aged 77. Upon Tony's death, the property passed to Nouhad by survivorship.
Nouhad's health began to decline from 2004, resulting in a diagnosis of Alzheimer's type dementia in 2009.
On about 31 May 2007, Michael returned to Australia with Arze and they recommenced residing with Nouhad at the property. Paul and his children were living there too. At this time Michael was in receipt of a disability pension and Arze a carer's pension.
In November 2007, Michael and Arze went to Lebanon because Arze's father was dying. He died soon after. They remained in Lebanon until February 2012 when they returned to Australia and resided, once again, with Nouhad at the property, together with Paul and his family.
In mid-to-late 2012, Paul moved out of the property and Michael and Arze remained. The circumstances surrounding Paul's move were also contested in these proceedings. It was put on behalf of Nouhad that, due to disputes and disagreements between Paul and Michael (Paul stated that Michael, told him prior to him leaving, "get out of the house. You and your kids can move out."), there was an agreement for Paul and his family to move out of the property and for Michael and Arze to remain on the basis that Michael and Arze would act as Nouhad's carers and share all expenses associated with the property. Michael disagreed that the disputes occurred and, therefore, disagreed that the disputes were the reason for the above arrangement taking place.
On 23 February 2013, Nouhad appointed Zouha to be her attorney and her enduring guardian.
A will, prepared by H K Husseini & Co Solicitors, was made by Nouhad on 18 March 2013 ("the 2013 will"). The content and circumstances of that will be explored below.
In August 2015, Nouhad ceased living permanently in the property, and began living with Zouha at her home at Werrington. The circumstances surrounding Nouhad's move were contested. By Nouhad's statement of claim it was alleged that Michael advised Zouha that he and Arze were no longer able to care for Nouhad, ejected Nouhad from the property and continued to reside at that property (the latter two allegations were echoed in Nouhad's defence). In Michael's defence to the amended statement of claim, he denied that those were the circumstances surrounding Nouhad's move from the property.
Between August 2015 and early January 2016, Michael permitted Nouhad to attend the property for 3 days per week.
It was alleged on behalf of Nouhad, in the amended statement of claim, that around February 2016 Michael changed the locks at the property, informed Zouha that she and Nouhad were no longer permitted on the property (this was mirrored by the defence to the cross-claim) and acted in an abusive and threatening manner when Zouha attempted to access the property. In Michael's defence to the amended statement of claim, Michael denied those allegations.
A further will, prepared by Simon Diab & Associates, was made by Nouhad on 24 February 2016 ("the 2016 will"). The 2016 will, together with both 2003 wills and the 2013 will, will be discussed later in the judgment.
Michael and Arze's son Charlie was born in July 2016.
Possession was granted to Nouhad by M Adams J on 18 November 2018.

PARTICULAR EVIDENCE AS TO THE PROMISE AND SURROUNDING CIRCUMSTANCES

The first issue

The evidence of Michael was that around September 1994, there was the demand for the $28,000 costs liability to be paid within 28 days failing which there would be legal action. Michael stated in examination-in-chief: Q. What do you remember about the contents of that letter that you read? A. I remember reading my, [Nouhad] was up for legal costs, of 28,000, and she had 28 days to pay that bill. And if she didn't pay it, legal action would be taken.
Evidence supporting the fact that a letter from G H Healey & Co was received was supported by the evidence of Jim, Paul, Joseph and Zouha, yet Michael was challenged as to his memory in relation to the contents of the letter as follows: Q. You've given some evidence about the solicitor's letter that you saw with your mum's legal amount owing on it. Do you recall giving that evidence in chief, through your Counsel? A. Yeah, I did tell him. Q. So your mum showed you a copy of that letter? You read it? A. I read it, they can't read, both my parents. My mum can't read. Q. Did you keep a copy of that letter? A. No. Q. Would you agree that your memory of that letter is likely to be very poor? A. No. Q. How would you describe the quality of your memory of that letter? A. Pretty good. Q. But you don't accept that it's likely to be unreliable? A. No. Q. Do you accept that there's a possibility of it being unreliable? A. No. Q. Are you prepared to make to this Court any concessions about the reliability of your memory of that letter? A. That letter is 100% true, your Honour. I'm very sure, 100%. If I had any doubts, I would not bring it up.
Michael was initially challenged as to the amount of the solicitor's bill being $28,000 and as to his parents telling him the amount. Firstly, as to the solicitor's bill being $28,000, the following was put to Michael: Q. You say that's not correct? A. Yeah, they were, I was promised the 28,000 and the 50,000, was a promise I'd get half the house. Q. I'm putting to you that that evidence is not truthful? A. No.
Secondly, in relation to being told the amount by his parents, Michael was challenged as follows: Q. And it's not true that your parents told you the amount of any legal fees, in 1994? A. I definitely disagree.
However, it was later conceded by the first cross-defendant that a $28,000 bill arose.
As to the bill containing a demand, Michael was challenged in cross-examination as follows: Q. You have given evidence to this Court that you recall the payment terms in that letter, that's correct, isn't it? A. Yeah. Q. Do you recall whether or not there were any terms in the letter advising your mum of how she could have her legal costs assessed? A. All, I've what I read, Counsel, in the letter, you owe 28,000 in legal fees. And you have 28 days to pay it. And if you don't pay it in that time, we'll take legal action. I remember going up to Peter McBride, of G H Healey Q. Can I A. I'm answering the question, Counsel. If I'm saying something wrong, please tell me. I'm trying to answer what you asked me. Maybe my English terms is far apart from what you want me to say. Q. I'm not trying to confuse you, Mr Awad, I'm going to put my question again? A. Well, you asked me, what did you Q. I'm not asking about other memories. I'm asking you, do you have a memory of whether or not there was some sentences in that letter, which gave your mum advice on how she can have her legal billed assessed. Do you recall if that was in the letter, or not in the letter? A. All I can remember, Counsel, it had legal action will be taken if you don't pay this amount in 21 days. Q. Is your answer to this Court that you do not have a memory of seeing that? A. I do not have a memory of seeing that. Q. Do you have a memory of any advice in that letter about how she could challenge her legal fee? A. No.
Michael's siblings did not provide evidence-in-chief as to the evidence of the demand. They were not questioned about the issues in cross-examination.

The second issue

As mentioned above, it was Michael's submission that the solicitor's bill constituted a financial emergency for Tony and Nouhad, and Michael's evidence that Nouhad had stated "…my Solicitors could make me bankrupt, and then we'll lose the house".
Michael was not directly challenged as to this issue but was challenged as to the content of the promise itself (which will be examined below). Of Michael's siblings, Paul disputed that Tony and Nouhad would be at risk of losing the home in cross-examination: Q. Do you agree with that, and did they tell you, or did one of them tell you that there was a big bill to pay to the solicitors who acted in those proceedings for your mother? A. Yes. Q. And were those solicitors G H Healey and Co? A. Yes. Q. And was the amount of costs payable about $28,000? A. I'm not sure but I think it sounds right. Q. And that if they didn't get that help there could be a risk of losing the home? A. No. Q. You don't remember that? A. I don't think they were ‑ of losing their home. Q. You don't think it got to that stage? A. No.
It was not put to Paul that there was a demand contained within the solicitor's bill.
The limit of the evidence given by Jim and Zouha in cross-examination was that neither had heard Tony mention that Michael had stopped Nouhad from becoming bankrupt. It was not put to Jim or Zouha that there was a demand contained within the solicitor's bill.
Around the time of the alleged letter of demand, Joseph stated that he was asked for help in the matter of paying the $28,000 but could not because he had a mortgage of his own at the time.

The third issue

As discussed above, it was Michael's submission that his promise to pay the solicitor's bill formed part of the promise.
Michael was challenged in cross-examination as to this issue: Q. - out of fairness, for my client's case. Mr Awad, it's not true that you promised to pay your mum's legal fees? A. Okay, okay Q. I'm putting it, do you maintain on the record you disagree with that? A. I disagree definitely.
Michael's siblings were cross-examined as to whether Michael had taken out the Arab Bank loan in order to pay, inter alia, the solicitor's bill. The siblings, save for Joseph (who did not address the issue), did not dispute that the Arab Bank loan was taken out to pay the solicitor's bill (see [322]).

The fourth issue

As already mentioned, it was Michael's evidence that he utilised the Arab Bank loan to pay the solicitor's bill. Michael was challenged in relation to this evidence in cross-examination: Q. At no point did you actually pay your mum's legal fees for her? A. Definitely untrue.
Michael's siblings were all cross-examined as to whether they remembered a conversation in which Tony had told them that Michael had paid off the solicitor's bill, save for Jim. The evidence of Paul and Zouha supported that this conversation occurred whilst Joseph did not directly address the question (see [295] of this judgment). This is in contrast to the evidence of the siblings as to whether any mention was made by Tony as to the promise (see at [237]-[246] below).

The solicitor's bill - credibility submission

Counsel for Michael contended that it reflected adversely on the credibility of the "provider(s)" of instructions to put propositions to Michael relating to aspects of the solicitor's bill issues that were not contested on the first cross-defendant's submissions or on the evidence of Michael's siblings.
Counsel did not develop the basis upon which the Court may make a finding on that basis. In any event the analysis of that contention should be considered in two parts.
First, counsel seemed to suggest that this credit issue might extend to Michael's siblings, other than Zouha. However, he did not explain how instructions given to counsel, in this sense, might extend to the credibility of those witnesses given that only Zouha had authority to give instructions to act for Nouhad.
I will momentarily deal with Zouha's evidence. However, no proper basis has been established to attack the credit of the first cross-defendant's witnesses on this basis. It may also be mentioned that my observations of these witnesses generally was favourable: their answers were responsive and frank. They were, in my view, truthful and reliable witnesses.
I turn then to the credit of Zouha, in this respect. The starting point should be to consider the premise of the attack on Zouha's credit - instructions given which were contrary to the evidence given by the siblings in cross-examination. That requires assessment of each of the solicitor's bill issues.
As to the first and second issues, counsel for Michael contended that it had been put to Michael in cross-examination that he was not told by his parents the amount of the legal fees.
There is some substance to that contention in that questions were raised with Michael as to what he had incorporated in his affidavits in that respect.
However, counsel for the first cross-defendant was entitled to explore in cross-examination a variety of aspects of Michael's evidence, in this respect, with a view to, in substance, question whether a demand for $28,000 was made by G H Healey and Co. Thus, Michael was asked whether he was shown the letter by his mother, whether he kept a copy of the letter; whether his memory in relation to the letter was good whether he recalled the payment terms; whether there were any terms advising his mother how to have the legal costs assessed or the legal costs challenged; and whether the costs included the costs in relation to the 1995 appeal.
Neither Zouha nor the other witnesses for the first cross-defendant were cross-examined on the existence of a demand in the solicitor's bill (that is, the threat of legal action in default of payment within 28 days).
However, the premise of challenge to Zouha's credibility is more tenable in relation to the third and fourth issues. It was put to Michael that he did not promise to and, in fact, did not pay the solicitor's bill. The evidence of Michael's siblings was that they had learnt that Michael did, in fact, offer to pay. The proposition put to Michael that he did not promise to pay, and did not pay, his mother's legal fees is inconsistent with the balance of the evidence given by Michael's siblings. Zouha stated that she "might have heard" that Michael had taken out a loan to pay Nouhad's legal fees.
It may be presumed that instructions were given by Zouha to counsel. It is another matter to conclude that such a fact should result in credit findings against Zouha as a witness by going behind instructions given to counsel. It may be that the cross-examination reflected an uncertainty or doubt held by Zouha. However that does not mean that credit issues do not otherwise arise in relation to Zouha's evidence. There were unconvincing passages of Zouha's evidence in which she claimed lost or inadequate memory that reflected on her credit. The passage from her evidence set out at [286] is an example. In contrast, the frank acceptance by the remaining siblings as to the third and fourth issues is to their credit.
It should also be noted that counsel for Michael cited the proposition put to Michael that he did not make any repayments on the Arab Bank loan as evidencing the lack of credibility of the instructor of the first cross-defendant. Again, in my view, this can only properly, if at all, be connected to Zouha. This will be dealt with below in my discussion of evidence pertaining to the Arab Bank loan.

Evidence as to the Promise

After requesting assistance from Joseph, it was submitted on behalf of Michael, Tony and Nouhad requested assistance from Michael. Under this heading I will discuss Michael's direct evidence as to the content and circumstances of the promise. I will also discuss Jim's evidence, as Michael placed Jim as being present on an occasion when the promise was made, as will be detailed below. I will return to Michael's evidence of a later conveying by Tony of the promise to other members of the family and the evidence of other family members (excluding Arze) as to the promise under a separate heading, noting that none of them (other than Jim, on Michael's evidence) were present during the actual making of the promise.

Evidence of Michael

In the December affidavit, Michael stated: 29. I specifically recall a conversation around this time in the kitchen of the Bexley property and where my mother, father and my brother Jim were all present. The conversation was in Arabic and at one stage I recall: My father said: "If you can help us by paying this debt and renovate the home we will give you half of the home and you can stay here until we die." My mother said: "Please help us Michael". I excepted [sic] my parents['] offer, and by saying inter alia at the time: "Okay, we will obtain a loan and I will pay it off"
As previously mentioned, the second paragraph of that extract of his affidavit was relied upon by counsel as constituting the promise, together, by succession.
I have earlier set out the relevant aspect of the March 2017 affidavit at [29] above (which, as mentioned, is relevantly in identical terms to the April 2017 affidavit).
The accounts given in the December affidavit and April 2017 affidavit were consistent in the following ways: 1. First, the substance of the promise, namely, that Michael would be given half of the property by his parents if he paid a debt and renovated the home, remained the same. 2. Secondly, both accounts make reference to Michael being allowed to live in the home until his parents die. 3. Thirdly, the accounts both placed the conversation as occurring at a property. 4. Finally, the structure of the conversation, where Tony makes the initial promise, followed by a supporting comment by Nouhad, is consistent.
However, there are several inconsistencies present: 1. First, the December affidavit merely references the paying of "this debt", whereas the March affidavit specifies "Mum's legal costs to G H Healey". 2. Secondly, the December affidavit specifies that Tony, Nouhad, Michael and Jim were present, whereas the March affidavit only mentions that Tony, Nouhad and Michael were present. 3. Thirdly, the December affidavit specifies that the conversation took place in the kitchen of the property, whereas the March 2017 affidavit merely states that the conversation took place "at the property". 4. Fourthly, the December affidavit includes a statement that Michael accepted the offer and stated "we will obtain a loan and I will pay it off", which is not present in the March 2017 affidavit. 5. Fifthly, the December affidavit made no reference to Nouhad saying that the solicitors could make her bankrupt and that as a result they would lose the house; words which were contained in the March 2017 affidavit. 6. Sixthly, the December affidavit noted that the conversation in which the promise was made was in Arabic, a fact which was omitted in the March 2017 affidavit. 7. Seventhly, the December affidavit contained a conversation which Michael "specifically recalled", whereas the March 2017 affidavit presented "words to the effect of" the promise. 8. Finally, there were some wording differences between the two affidavits such as Tony's use of Michael's first name in the promise.
However, in the May 2018 affidavit, Michael puts the promise in a different light. He puts the promise as follows: 2. Dad said to me words to the effect, "Pay the fees of the lawyer and renovate the home, it needs a lot of work, and your mother and I promise you half the house is yours, and get married and live with us till we both die, then it's yours."
The statement of the promise in the May 2018 affidavit conformed to previous affidavits in the following ways: 1. First, all affidavit evidence placed Tony as the person making the promise. 2. Secondly, paying a fee and renovating the house formed part of the Michael's requirement under the promise in all affidavits. 3. Thirdly, in all cases Tony and Nouhad were the persons stated to be giving Michael the house. 4. Finally, in all cases there was reference to Michael living with Tony and Nouhad until they died, albeit to a different effect in this affidavit.
However, a large number of inconsistencies arise when comparing the formulation of the promise in the May 2018 affidavit to previous affidavits: 1. First, in this formulation, no details were provided as to the context in which the promise was given, such as the year, the location and the people present. 2. Secondly, it was specified that "the fees of the lawyer" must be paid as opposed to "this debt" in the December affidavit and "the legal costs to G H Healey and Co" in the March and April 2017 affidavits. 3. ]Thirdly, the statement that the home "needs a lot of work" was not stated in any form in previous affidavits. 4. Fourthly, in previous affidavits, it was put by Michael that his parents would "give" him half of the house, whereas in this affidavit, it was stated that his parents would "promise" that half the house was his after they die. In the May 2018 affidavit, half of the house would become his once Tony and Nouhad died, whereas in previous affidavits, it was stated that Tony and Nouhad would "give" Michael half the home after he paid the fees and renovated the home. In previous iterations, living at the property until Tony and Nouhad died was a benefit provided to Michael upon fulfilling his side of the promise. Yet, in the May 2018 affidavit, living with Tony and Nouhad appeared to be a requirement and precondition to fulfilling the promise: "…get married and live with us till we both die, then it's yours".
Michael stated that in April 2017 affidavit Nouhad said "words to the effect": "I want Michael to have most of the home…he has done all the renovations…paid my legal bills to stop my bankruptcy…my other children never came…we said he should have half of the house…Michael stays with me and cares for me and is the only one who has helped…".
The circumstances surrounding that purported statement were not specified, for example to whom the statement was made, where the statement was made or who was present when the statement was made.
That formulation of the promise is slightly different from those already mentioned. Importantly, in that statement Nouhad stated: "we said he [Michael] should have half the house". This is slightly different in structure to the previous iterations where Tony makes the initial promise and Nouhad subsequently agrees. The use of the words "want" and "should" in this formulation also suggest that the gifting of the house has not yet occurred. It is not clear from Michael's accounts in his affidavits whether the house was to be given to Michael upon his parents' death or upon his payment of the legal fees and completion of the renovations.
Michael also stated in his February affidavit that in a conversation between Tony, "Arze's father", "Arze's brother Saad", Arze and Michael in Lebanon in 1995, Tony stated: "the house is half Michael's".
That statement is consistent with the evidence that Michael provided in his December affidavit and the March and April 2017 affidavits, but not his May 2018 affidavit.
Finally, Michael recounted in his February 2017 affidavit, a conversation in relation to the Arab Bank loan as follows: Arze: "What are we going to do with the money?" Me: "We need to give the money back to the Arab bank for a loan of $90,000." Arze: "Why are you paying this $90,000, can I please ask what the loan was for?" Dad: "Well we had a court case that your mother in law lost that's why we asked you to live with us because we were going to go bankrupt and Michael paid the fees ... we would have lost the home and he also renovated the house with the loan … that's why we promised that you could stay here and the he get half the house."
Once again, this conversation is consistent with the evidence that Michael relied upon, save for the reference to bankruptcy which did not appear in his December affidavit.
Michael did not give evidence about the promise in examination-in-chief.
In cross-examination, Michael first gave evidence that the entirety of the promise was contained in para 10 of his April 2017 affidavit: Q. Are these the words [at para 10 of the April 2017 affidavit] that you say you relied on, as a promise to formally give you half the interest in the family home? A. That's correct, that's correct, your Honour. And for money to pass to help them out. Q. So that's the entirety of the information that you're saying to the Court that you relied on as a promise from your parents? A. Well, my mother and father were crying and they told me, "Can you help me son?" they told me, "If you pay mum's legal costs and you pay for the renovations of the house, we will promise you and give you half the house." Q. So you're agreeing with my question? A. Yes I did. Q. That's the entirety of the conversation? A. Yes.
He stated that the conversation containing the promise went for "At least a couple of hours, because we had a coffee, I had to seriously think."
When questioned as to whether the two sentences contained in the March 2017 affidavit was actually a conversation which took a couple of hours, Michael responded: Well, we said a little word here or there, and I had to think. I really had to think because I was signing my… life off here. I was 34 years old and I was committing myself to 20 years of payment, for something that my father promised me, and it's just I can't say like just, okay dad I'll give you 90 grand, no worries mate. It doesn't work that way. I was really had to think, Michael you have to give that money or he's going to lose the house and if you give that money, you're committing yourself for 20 years. So that's the decision, I took time, counsel, and I needed to think about it, your Honour, properly before I said yes and dad and mum said yes and we both agreed on it, and we took the loan. That's all counsel.
As an aside, it should be noted that this statement described that both Michael and his parents agreed to the promise. Yet, only in the December 2016 affidavit does Michael mention that he agreed to the promise. In no other affidavit is there mention of agreement.
When it was put to Michael that he did not include in his April 2017 affidavit (it was not mentioned in any of Michael's affidavits) the fact that the conversation took a number of hours, he stated: Well counsel, if I was to put every word that happened there would be a thousand or two thousand page affidavit which will bore your Honour, I'm just trying to ‑ we're trying to get the specifics, the facts, and you can ask me the questions that need that we don't need to put down on paper. Like I'm talking to you now.
When it was pointed out that this statement was inconsistent with his previous statement that the entirety of the promise was contained in the April 2017 affidavit, Michael stated: No, I didn't mislead the Court. That was the specific thing that happened [at para 10 of the March 2017 affidavit], that we can talk about, I didn't think to go into little petty things like, I sat down had a coffee, I had a nap, and I was deciding. This is not relevant for the case, they just want to know, your Honour wants to know did this man pay this money for this 94 agreement. That's all I was looking at, and to tell the truth, and give an honest opinion.
When further pressed as to whether the entirety of the conversation was not put in his affidavit, he said: The important and the truth were put down on the affidavit, but things like I sat down, coffee, I had a cigarette, there was no need to put it down, counsel. It did happen, I did have a coffee, I did have a cigarette, but there's no point in putting it on my affidavit.
Michael also stated that his parents were crying when they made the promise, which was not mentioned in any of his affidavits.
Michael gave evidence that the conversation took "a long while because [he] had to consider 90,000 then, [he] was going to be in debt and committed to the bank for 20 years". He later included: You're not going to change, Counsel, what I said, the truth, and what actually happened. This thing actually happened, Counsel. My father and mother did promise me half the house, for the 90,000. I kept, we cannot deny that. It happened.
When it was pointed out to Michael that the $90,000 was not mentioned in the April 2017 affidavit (it was not mentioned in any of Michael's affidavits), Michael conceded that at that stage the $90,000 had not been discussed: All right. I didn't put that figure down, because what happened, we needed to pay the $28,000 for the legal fees ASAP. And dad said, and mum said, "Pay the legal fees, renovate the home," which the home was run down. So I paid all that money to renovate, new kitchen, new bathroom, new carpet, new tiles, new gutters, new fence. I'm sure they don't cost 50 cents, Counsel. I paid them, and that's how the figure came up to 90,000. I didn't say it in that paragraph, because we hadn't decided the final figure…
In relation to the omission of the $90,000 figure, he continued: It didn't come up to that yet. Just pay me my legal fees, and renovate the house. So Counsel, I obviously didn't know how much it was going to cost.
Later in cross-examination, Michael submitted that his memory of the promise was very good: Q. Is this conversation with your parents in 1994, is that one that you can remember clearly now? A. Pretty clearly, Counsel. Q. But you can't remember, you did say that 90,000 was raised before. So do you accept that there's some problems with your memory, about this conversation? A. No, Counsel. Q. So your memory is crystal clear of this conversation? A. It's pretty good. You know we're talking, Counsel, 24 years ago.
He continued: Q. So is your evidence to this Court that you remember it pretty good? A. Yeah. Q. Is that you saying that your memory's excellent? A. For that, yes. Q. But you accept that this conversation took place about 24 years ago? A. Yes. Q. You accept, you must accept, that your memory of an event 24 years ago may not be reliable? A. No. Q. You don't accept that? A. No. Q. Do you accept there's a possibility it may not be reliable? A. No.
Michael also dismissed the possibility that he had reconstructed the memory of the promise: Q. Do you accept that there's a risk that you've reconstructed your memory of your conversation with your parents from 1994? A. Yeah, there's zero percent.
Later in cross-examination Michael resiled from the position that his memory was excellent: Q. Mr Awad, you gave some evidence before court about your memory being excellent in relation to this conversation in 1994, do you recall giving that evidence? A. I think I said it's pretty good. Q. You deny saying it was excellent? A. I thought I said pretty good. Q. Do you deny saying excellent? A. I wouldn't use the word "excellent," my memory's excellent, but it's pretty good. Q. I take it that you've forgotten that you said the word "excellent" in the course of the few hours since then? A. Unintentionally, I didn't mean it. Q. What's your memory like in relation to the conversation that we've been talking about in 1998? A. It's pretty good. Q. Is that excellent? A. No. No, no one can, or excellent, that far back; it's pretty good.
In cross-examination it was also pointed out to Michael that he did not include the month that the promise occurred. It was then put to Michael that he did not remember the month in which the promise occurred, as Michael initially stated that the promise was "Probably around May". However, after additional questioning, Michael resiled from that position as well: Q. I'm going to repeat my question. Do you accept that it's the case that you do not remember what month this conversation took place? A. I can't be exact, so if I told you around May, June, I'd be lying. Q. So you take back your estimate that it was May? A. Yeah, I take back my estimate. That's why I didn't put a firm month, because I'm not sure, cause May, June, and to put something I'm guessing, would be wrong. So that's why I didn't include it in the affidavit.
Michael also conceded that he did not remember the day or time that the promise took place: Q. Do you remember what day of the week it was? A. No, that's part of reaching, Counsel, isn't it? Q. So you don't remember the day? A. No. Q. Do you remember the time of the day? A. No, I don't, Counsel.
In relation to where the conversation containing the promise took place, Michael initially stated "On the veranda". Immediately afterwards he stated "The veranda and kitchen it should be." Then when it was put to Michael that he did not remember where the conversation took place he stated, "It was on the veranda. I should have put that down".
In relation to who was present when the conversation took place, during cross-examination, Michael initially stated "There was me, my mother and father".
Contrary to the evidence that the entirety of the conversation was contained in his April 2017 affidavit (and a contention by his counsel to that effect), and contrary to the evidence he had given in relation to the location of the promise and the people present, Michael then stated: There was one time we had a talk with Jimmy in the kitchen. And one time I had me and my father and mother on the veranda. I'm sorry if I didn't clarify it, put that in, your Honour. But the main highlight one stands, is the one in the kitchen. Where dad had a fight with Jimmy. (It should be noted that, in the December affidavit Michael refers to a conversation including Jim in the kitchen).
Michael then confirmed that the promise stated in the December affidavit was a different conversation to that contained in the April 2017 affidavit: Q. Is that a different conversation [referring to para 29 of the December affidavit] from the conversation you've just been talking to the Court about? A. I had another conversation with. Q. So this is a separate conversation? A. This was the main one. Q. So the other one you've just talked about is a different conversation? A. It was a similar one to that, but without Jimmy involved. Q. You haven't made that clear in your evidence at all, have you, Mr Awad? A. Well, I didn't know I had to clarify that much. To the Court, I just told the Court the truth of what happened. No, I told you, counsel, I had a small meeting with my parents, and I had another meeting with my mother, father and Jimmy. Because dad asked Jimmy, "Will you help out too?", and Jimmy told him, "No, eff off. I'm not going to live with you."
When it was put to Michael that this was inconsistent with the entirety of the promise being contained in the April 2017 affidavit, Michael returned to the position that there was only one promise: …there was one promise and one loan made that dad told me, "If you pay the renovations and your mother's legal fees, we will promise you half the house," and it was said to all the siblings and to everyone and the promise was told to everyone, and everyone knew and no one said a word about it.
The evidence that "it was said to all the siblings and to everyone and the representation was told to everyone" was consistent with the May 2018 affidavit, by which Michael set out Tony's disclosure of the promise to Michael's siblings. However, it was inconsistent with Michael's later evidence in cross-examination, namely, that "the siblings knew dad done a will but no-one knew about the 1994 agreement, counsel. No-one knew when dad and mum were crying."
Michael then agreed that the conversation outlined in the December affidavit occurred first, before the conversation in the April 2017 affidavit.
Michael then gave evidence confirming that there was more than one conversation: There was more than one conversation, counsel. That's what I'm trying to say, there was more than one. It wasn't an easy decision to make. I had I talked to mum and dad, and I talked to mum and dad and Jimmy. So I don't know where I'm supposed to have gone wrong, discussing this huge financial undertaking, I'm supposed to take off the burden of my father and mother's back. I don't understand, counsel. How it could be a one off thing, one day let's see it happen there, it's all over, no he talked to me, my mother and I, then when Jimmy was present, and he asked the whole family, that's another conversation, do you want to put that in too, counsel. He called the whole family, Joseph, Zouha, Paul, "Can you help me legally, we're broke," so do we did I need to put that in the affidavit?
Of those conversations, Michael stated that the conversation in the kitchen was the main one: Q. In your evidence, you have consistently represented to the Court, that there was one conversation in 1994 with your parents, upon which you relied? A. The kitchen one, yes, counsel. The one in the kitchen. Q. So I put it to you that the conversation you said which occurred on the veranda did not happen? A. It did happen, but this was more relevant and more important, counsel. This was the main one.
When it was put to Michael that he was fabricating the evidence in relation to the kitchen conversation being the more important conversation, Michael then stated that the conversation in the kitchen was the conversation outlined in both the December affidavit and the April 2017 affidavit: Q. So that's the same conversation as the paragraph at 29? A. In the kitchen, it should have been, yes.
Then, when it was put to Michael that instead of talking about two conversations he was in fact talking about one conversation, he stated that there were, in fact, two conversations: I did have another small conversation with my mother and father outside, but this is the main conversation in the kitchen.
Michael then conceded that his previous evidence that the conversation outlined in the April 2017 affidavit occurred on the veranda was incorrect and that this conversation occurred in the kitchen: Q. Okay, so the evidence you've just given to the Court about this conversation at paragraph 216 being on the veranda, is not correct? … Page 216? You've actually meant the kitchen all along? A. Yeah, it should've and I'm sorry, if I misled the Court.
Michael was then questioned as to why he did not include Jim as being present in the April 2017 affidavit. He had initially agreed that Jim was not present: Q. Then I'm going to put my question again, do you accept that when you prepared this affidavit at page 216, that you did not include Jimmy as being present in that conversation, because in truth he was not present in that conversation? A. On the veranda, totally correct, I did.
In relation to the omission of Jim being present in the April 2017 affidavit, Michael said: "I didn't think it was relevant".
It was then put to Michael that he had provided inconsistent accounts as to why the presence of Jim was omitted, to which he stated: "it was an honest mistake".
Following this, Michael once again agreed that apart from the date and time of the promise and the presence of Jim, the April 2017 affidavit contained everything important in relation to the promise: Q. You still agree that other than not referring to Jim being present, this conversation is your memory reflects your memory to the best that you can tell the Court, of this important conversation? A. In the kitchen. Q. In the kitchen, but it's missing details such as the month, the location and Jim being present, you accept that? A. Yes
The cross-examination continued: Q. I'm going to repeat my question, is everything that's important as to what you said and your parents said, in that paragraph 10? A. Yes.
It was then pointed out to Michael that he did not include his agreement to the promise in the April 2017 affidavit: Q. You would agree wouldn't you not, that you agreeing to help your parents out is important? A. That's correct. Q. Do you accept that is not in that paragraph? A. I do accept it's not in that paragraph. But one would like to know, counsel, when my mother and father were going to get that money from?
It was also pointed out to Michael that "there's no reference in that paragraph to 28,000" or "reference to any detail about the amount of the renovation costs". Michael responded to those statements in the following manner: A. No there isn't. But I do say along the lines that it was 28, and I've always said this, 28,000. And that was what was in the demand letter from the solicitors. Q. But I'm wanting you to focus on my question, which is there's nothing in there which refers to 28,000, you agree with that? A. There's nothing there, but there is further references down the line. Q. I just want you to answer my question? A. In there no, Counsel, no. Q. In that conversation A. No, Counsel, there isn't.
It was further pointed out that Michael did not reference any conversation between just himself and his wife in relation to the promise. Michael provided inconsistent evidence as to whether he considered it important to tell his wife about the promise. First, he answered as follows: Q. Do you agree that if you had been promised to inherit half the house, that this is a matter you might have been expected to tell your wife? A. Yes, Counsel.
However, immediately afterwards, he gave the opposite answer: Q. You agree that that's an important matter, to have told your wife? A. Not really.
He stated in relation to discussing financial matters with his wife: Well, it's, in our culture, the man makes the financial decisions, and he's the one, and if he wants to tell his wife, he can.
Further it was stated: Q. So she wouldn't ask you why you've got a mortgage, she wouldn't ask you how you're paying things off, she wouldn't ask you those types of questions? A. No.
Immediately afterwards, Michael stated the opposite: Q. So she's not going to ask you what a loan's for? A. If something big, she will. Q. So she does ask you financial questions? A. I just answered it, Counsel, for wages or paying bills. I never said loans. A loan is something very important, which affects me and her. Q. So she would ask you about important financial matters? A. If a loan, yes.
It was then stated in relation to the promise: Q. I'm asking about, do you agree that's an important thing to have told her? A. Yeah, it is an important thing to tell her.
This was contrary to his prior evidence that telling his wife about the promise was "not really" an important matter.
Michael then conceded that no conversation occurring between just himself and his wife appeared in his affidavits, despite the fact that Michael stated that he and his wife spoke about the promise "in [19]95, and in [19]98": Q. But do you accept that a conversation between you and your wife, not involving other people, is not in your evidence? A. There was no need to. She was not educated. She only went to school till she was eight years old, and she came from a village.
Michael did not provide further evidence relating to the promise in re-examination.
I will return to my overall observations of Michael as a very unimpressive witness. However, it is appropriate to pause at this juncture to make some observations as to unsatisfactory features of his evidence bearing directly upon the promise.
Generally speaking, inconsistencies between Michael's affidavits may be explicable on a number of bases but there exists significant inconsistencies both between the affidavits and his evidence in cross-examination and internally in his viva voce evidence. Some significant examples may be provided out of those illustrated above: 1. Michael's evidence was inconsistent as to whether there was a single promise, whether the promise was contained entirely in the April 2017 affidavit, where the conversation containing the promise occurred or who was present. In cross-examination, Michael gave evidence for the first time about there being two conversations where the promise was made: one on the veranda, without Jim being present, and another in the kitchen, where Jim was present. Michael gave evidence that the veranda conversation was "small" and came after the "main" conversation in the kitchen, which was inconsistent with his earlier evidence in cross-examination that the conversation outlined in his April 2017 affidavit was the entirety of what he relied on as the promise. Michael's initial position was that the April 2017 affidavit referred to the conversation on the veranda without Jim present but his later position was that the April 2017 affidavit was referring to kitchen conversation. When cross-examined about why he did not refer to Jim as being present at this conversation, Michael referred to the fact that Jim was not present at the conversation on the veranda after he had just stated to the Court that the conversation referred to in the April 2017 affidavit was referring to the kitchen conversation. Then, when questioned on this inconsistency, Michael said that he had not referred to Jim being present in the April 2017 affidavit because he did not think it was relevant, then, when questioned on that, he said he made a mistake. It may also be noted, in this respect, that despite statements that his memory of the promise was excellent, Michael was unable to recount details as to the circumstances of the promise such as month, day or time of day. I accept the submission of counsel for the first cross-defendant that deviations from Michael's account are not consistent with a genuine memory of the promise deposed to in the April 2017 affidavit 2. Michael's evidence in cross-examination that the conversation containing the promise took a couple of hours and would have been 2000 pages long is inconsistent with prior evidence that the entirety of the promise was contained in the April 2017 affidavit (at para 10); the conversation as to "the 1994 agreement", therein, is only two paragraphs long. 3. Michael's statement in cross-examination that he had to think about the $90,000 involved to be paid in the promise was inconsistent with evidence that the alleged $90,000 amount had not yet been determined at the time of the promise (and no renovation was being undertaken). 4. Michael provided inconsistent evidence as to whether he considered it important to tell his wife about the promise and whether he would discuss financial matters with his wife. His initial evidence in cross-examination was that in his and his wife's culture, the man makes financial decisions and the wife would not ask financial questions such as questions relating to a mortgage. This was inconsistent with his later evidence in cross-examination that his wife would ask about "something big". Michael also concluded in cross-examination that the Arab Bank loan was an important matter to tell his wife about which was inconsistent with his earlier statement in cross examination that it was "not really" an important matter, which was inconsistent again with his initial statement that the Arab Bank loan was an important matter to tell his wife about.
The final disposition of questions concerning his evidence and further issues of credibility will be held over until the balance of this section of the judgment is completed, although it will be immediately evident that there is substance in the first cross-defendant's submission that his evidence vacillated in order to accommodate or adjust for apparent difficulties with his account in evidence.

Jim's Evidence

As mentioned above, Michael referred to Jim being present at a conversation in which the promise was purported to have been made both in his December affidavit and in cross-examination.
The extent of Jim's affidavit evidence is contained in the following statement in his affidavit: 5. I recall having a conversation with my father, I believe sometime in the early to mid-1990's, in which he stated to me words to the effect of "We need to borrow money against the house to pay off Michael's debt, as well as pay legal fees and for your weddings and a kitchen renovation".
It is not clear whether this conversation is one of the conversations that was referred to by Michael as containing the promise. This conversation is not said to have occurred in Michael or Nouhad's presence, nor does it specify an exact year or any other circumstances surrounding the conversation. It is plainly inconsistent with the promise but does seem to suggest the existence of a solicitor's bill and the existence of some renovation.
Jim was not asked to give evidence in examination-in-chief as to whether a conversation occurred in his presence of the kind described by Michael.
Notwithstanding the fact that, on Michael's case, Jim was present at some point during the making of the promise, much of Jim's cross-examination, with respect to the promise, related to Tony's later purported disclosure of the promise, which will be discussed below. In relation to direct evidence of the promise, it was not put to Jim in cross-examination that he was present in a conversation in which the promise was made to Michael. Nor was any version of Michael's accounts put to him including the one in which Jim was said to be present. His evidence at [215] in which he gave evidence of Tony's statement in the mid-1990's regarding the need to borrow money to pay off Michael's debts was not challenged in cross-examination.
The extent of evidence in cross-examination was as follows: Q. Do you remember hearing any conversation about them asking Michael to help pay the costs? A. He offered to help.
It should be noted that Jim expressed difficulty in providing evidence due to what counsel for the first cross-defendant described as extreme anxiety about the process, evidenced through medical reports. Counsel for the first cross-defendant stated: I'm concerned about his mental health in going through the process of cross examination, in circumstances where he's brought to me this morning, a letter from a medical practitioner, which I haven't handed up. Dr Grace, who was asked the question, "Do you believe that Jim Awad can endure the giving of oral evidence, both telling his story and then being cross examined; and if not, why not?" And this doctor says: "Mr Awad has always been an unassertive, socially shy man, who has sought to avoid conflict. As such, he would always have had difficulty in the giving of oral evidence, both telling his story and being cross examined on it. This will particularly be a case in a cut and thrust atmosphere, dominated by highly enthusiastic legal adversaries." I only flag this matter. This has only been brought to my attention this morning. As an advocate, I am limited in the nature of the objections I can make, but if I'm seeing that this deponent is struggling in the witness box, I've flagged to my friend, and I've been requested by Jim to bring it to your attention.
Jim was cross-examined and was required, on one occasion, to leave the witness box to re-gather his composure during cross-examination. It was not submitted that this course was taken to be evasive of questioning put to him. My observation of Jim was that he did suffer anxiety in the witness box but I do not consider that it reflected adversely upon his reliability. His answers were responsive and he appeared to give his evidence frankly.

Evidence of Any Recounting of the Promise by Tony after the Purported Promise

This evidence principally concerns statements attributed to Tony which Michael and Arze said were made some time after the promise was made. As there is no particular time dimension as to when it was that the statements were said to be made other than that they post-dated the making of the alleged promise itself ("the announcement"). It is convenient to deal with the evidence at this juncture provided that the same caveat is applied, namely, that it is appropriate to consider all the evidence before finally passing upon this evidence.

The Evidence of Michael

In the May 2018 affidavit, Michael stated that Tony subsequently disclosed the promise to Michael's siblings. The relevant passages of that affidavit are extracted below: 3. Dad said to all my siblings in front of me words to the effect, "Michael has taken out a loan to pay Mum's legal fees and to renovate the house. He has stopped her from becoming bankrupt" 4. Subsequently, Dad said to all my siblings in front of me words to the effect, "Your brother has paid off the loan, and I've given him half the house, and he stays with Mum and me until we pass, and we might give him the whole house." 5. Subsequently, Dad said to me in front of all my siblings words to the effect, "I've given him (referring to me) half of the house for renovating the house and for paying your mum's legal fees... Michael is living with us until he dies."
The main inconsistency between those statements and the other affidavit evidence of Michael is that, in those statements, Tony was attributed as having gifted the house to Michael without any mention of Nouhad being present or assenting to the promise, save for a reference at para 4 of the May 2018 affidavit, which stated Nouhad said: "we might give him the whole house".

The Evidence of Arze

Arze first gave evidence as to the promise in her affidavit. This evidence constituted a conversation that had occurred "in about 1998". In a conversation between Tony, Nouhad, Michael and Arze, Arze stated that Tony said: "That's why we asked you to live with us because Michael paid the court fees for us years ago, because we were going to go bankrupt and we would have lost our home and he also renovated the house with the loan also. That's why we promised him you could all stay with us and promised him half the house."
That statement is consistent with Michael's February affidavit in relation to the same conversation, in that it uses almost identical words. Secondly, this statement is consistent with other evidence in that the payment of fees and the renovation of the house was said to form the basis of the promise. Yet, several inconsistencies between the statement and Michael's evidence are present. First, a small difference was that the fees to be paid are labelled in this evidence as "court fees", distinct from lawyer fees or fees owed to a legal practice. Secondly, the statement outlines that Tony and Nouhad promised Michael "you could all stay with us", which conflicted with Michael's April 2018 affidavit which, as earlier mentioned, stated that Michael's living with Tony and Nouhad was a requirement under the promise.
In cross-examination, Arze stated that the 1998 conversation outlined in her affidavit was not the first time that she had heard about the promise: Q. Was this the first time you had been told or became aware of your parents in law having promised to Michael, your husband, that he would receive a half interest in the home? A. No, it wasn't the first time. Q. When did you first become aware of that promise? A. The first time was being told when we got married in Lebanon, between my father and my father in law.
When it was pointed out to her that she had not included any prior conversations in her affidavit regarding the promise, she disagreed, stating "Yes. I've been told from my parents-in-law." This conversation did not appear in the affidavit.
Arze also initially stated that there was a two year gap between the meeting with the solicitor and the conversation containing the promise: Q. How long was it between when you met with that solicitor and this conversation taking place? A. Nearly two years because his case was in '96. That conversation about his super was in '98.
Yet, in her affidavit she stated that the solicitor's meeting and the conversation occurred, not two years apart, but both in about 1998: 34. In about 1998, however, after Michael and I consulted his workplace injury solicitor and I became aware that Michael was going to receive an amount of about $130,000 a conversation took place on the verandah outside my home between Michael and me and his parents…
When that inconsistency was raised with Arze she agreed that there was a meeting with solicitor in 1998.
There is a particularly unsatisfactory part to Arze's evidence as to whether she was likely to be engaged in a discussion about financial matters with her husband.
In cross-examination, Arze stated that she was not involved in financial matters: Q. So you accept that you've given evidence there that you were not involved in financial discussions? A. Yes. Q. That included financial discussions with your husband? A. Yes. Q. And with your parents-in-law? A. Yes. Q. You have given evidence that it was not acceptable for women to be involved in such matters? A. Yeah, because I'm not from here. I'm from overseas. Q. You are from Lebanon? A. Lebanon. Q. When you say, "such matters" do you mean to tell the Court financial matters? A. What do you mean? Q. So, in your paragraph 33 - A. Yes. Q. "I was not involved in financial discussions. It was not acceptable for a woman to be involved in such" - A. Yes, that's right. Q. When you say, "such matters," you mean financial matters? A. Okay. Q. Question: do you mean financial matters when you refer to "such matters"? A. Yeah. Q. When you say, "financial matters" is that any matter concerning finance? A. All to do with, yes, say, financial. Everything about financial I didn't know about.
This aligned with the evidence given in her affidavit: 33. … I was not involved in financial discussions because in my family life and [in] my culture it is not acceptable for a woman to be involved in such matters.
As will be discussed below, this evidence was inconsistent with conversations that she was said to have had with both Michael and Tony, regarding the financial matter of the mortgage.
She was challenged in cross-examination as to her knowledge of the financial affairs of her husband or family and gave the following unsatisfactory explanation: Q. Then do you see that you've asked what - "Can I ask what the loan is for?"? A. Yes. Q. Do you see that? A. Yeah. Q. Do you agree that this is you asking your husband about a financial matter? A. Yes. Q. Do you agree that that is inconsistent with your evidence at paragraph 33 that you did not A. What's inconsistent? Q. Do you agree that inconsistent means the opposite excuse me. HIS HONOUR: Different to. WILLIAMS Q. Different, not the same, different? A. Different to what? Q. Paragraph 33 where you said that you were not involved in financial discussions or that you were not it was not acceptable for you to be involved in such matters? A. No, it's not I didn't - no, not - not acceptable. It's just I knew - I would know him about the money. We'd come back again, the same question. I'm asking what we want to do with the money, not that he'd let me get involved with it. Q. So, is your evidence to the Court that asking what is going to happen to money A. Yeah. Q. - is not getting involved in financial matters? A. No, I was just, I'm asking where the money come.

The Evidence of Jim

Jim gave the following evidence, with respect to the announcement, in his affidavit: 8. I recall in approximately 2004 having a conversation with my father, Tony Awad, before he passed away, in which he stated words to the effect of "I want the house to go to your mother after I am gone, then to pass on to you and your sister and brothers equally after that". 9. At no time did my parents say anything to me about promising to give Michael an interest in the property which was more than one fifth.
This was consistent to his evidence in cross-examination: Q. I'm not putting to you that he said I'm going to leave half the house to Michael in my will, I'm putting to you that your father said, "I've given him half the house"? A. No. Q. The gift has already happened, before death. That's what I'm putting to you? A. It didn't. Q. Are you sure about that? A. 100%. Q. Your father said, "He stays with mum and me, until we pass"? A. He can, he can live with me. He told me as well. He can live with me, as I mean in "me," as me and wife would have had the opportunity to live with him. My parents. Q. Just so we can be quite clear about this. I put it to you that on another occasion, your father said, "I've given him half of the house," we're talking about Michael now, "for renovating the house and for paying your mum's legal fees"? A. Definitely not. Q. You're quite sure? A. 100%.

The Evidence of Joseph

Joseph gave the following evidence, with respect to the announcement, in his affidavit: 10. At no time did my parents say anything to me about promising to give Michael an interest in the property which was more than one fifth … I do not recall my parents saying anything to me about Michael paying for the renovations, and that in return for that, they would give him a one half interest in the property.
This was consistent with his evidence in cross-examination: Q. Did your father tell you that Michael had paid the costs owing to Healey and Co and had paid to renovate the house? A. He didn't renovate, just the kitchen, it was just the kitchen. Q. Your father told you that? A. That's all, yep. Q. And did he tell you that in return for that he'd given Michael a half interest in the house? A. No. He never did.

The Evidence of Paul

Paul gave the following evidence, with respect to the announcement, in his March affidavit: 10. At no time did my parents say anything to me about promising to give Michael an interest in the property which was more than one fifth. At no time did my parents say anything to me about Michael paying for any legal fees for them and for the renovations, and that in return for that, they would give him a one half interest in the property.
This was consistent with his evidence in cross-examination: Q. Were there occasions, before your father died, where he said that Michael had paid off your mother's legal costs to G H Healey, and had helped pay for the renovations to the house? A. Yes. Q. Did he say to you that for doing that he had given Michael half the house? A. No. Q. I'll put something quite specific to you? A. Okay. Q. Did he say, "I've given him half the house for renovating the house and for paying your mum's legal fees"? A. Did my father say that? Q. Yes? A. No.

The Evidence of Zouha

Zouha gave the following evidence with respect to the announcement in her 16 March 2018 affidavit: 7. In around 2002 I recall having a conversation with my father when he said to me words to the following effect. "I have provided for all of you, the will is in the bank I want you and your brothers to have the family home. I want all of you to have an equal share." 8. At no time did my parents say anything to me about promising to give Michael an interest in the property which was more than one fifth.
This was consistent with her evidence in cross-examination: Q. So he never said anything about giving Michael half the house for renovating the house and paying the legal fees? A. No. No, he never said that.
And later: Q. I know you've said that in your affidavit and I'm not going to challenge that. But I am going to put to you though that your father said that he'd given Michael a half interest in the house A. No. Never did.
Thus the evidence of Michael's siblings is consistent under cross-examination in denying that the announcement occurred. However, other issues were raised as to their credibility and, hence, the final assessment of this issue can await the consideration of those issues.

Documentary Evidence

As earlier mentioned, a historical search of the property's title occurred on 23 December 2016. The property title search showed, inter alia, the following: 1. a discharge of a mortgage recorded on 27 September 1994 ("the 1994 discharge"); 2. the issue of a mortgage recorded on 27 September 1994 ("the 1994 mortgage"); and 3. another discharge of a mortgage recorded on 13 May 1998 ("the 1998 discharge").
The 1994 discharge was said to be evidenced by the document relating to the discharge of a mortgage lodged by Sattout and Associates and executed on 12 September 1994. The mortgagee of that mortgage was Westpac Banking Corporation and the mortgagors were Tony and Nouhad.
The 1994 mortgage was said to be the Arab Bank loan. The 1994 mortgage was evidenced by a mortgage document that was lodged by Sattout and Associates on 22 September 1994 ("the mortgage document"). The mortgagee of the 1994 mortgage was Arab Bank and the mortgagors were Tony and Nouhad. The mortgage document showed that stamp duty was paid on an amount of $50,000. The mortgage document stated the provisions of Annexure A and Memorandum number E125742 filed in the Land Titles Office were incorporated in the mortgage. Annexure A stated, inter alia: This page and the following pages comprises the Annexure "A" referred to in Memorandum of Mortgage dated 22/09/94 between Michael Awad and Tony Norma [sic] Awad Awad [sic] as ("the Mortgagor") and ARAB BANK AUSTRALIA LIMITED (A.C.N. 002 950 745) as (the "Mortgagee").
Paragraph 3 of the Schedule to Annexure A of the mortgage document stated: 3. [T]hat for the purposes of this mortgage: A. The Customer is: Michael Awad, Tony Awad and Nouhad Awad B. The Mortgagor is: Tony Awad and Nouhad Awad.
The 1998 discharge was said to be the discharge of the Arab Bank loan. There was no primary documentary evidence relating to this discharge, save for the property title search. The cross-claimant also relied upon page 2 of statement number 152 of a "Classic Account Statement" ("the bank statement") for the period 19 March to 19 June 1998 for a bank account that belonged to Michael, which showed a withdrawal of $81,024 on 28 April 1998. It was submitted by the cross-claimant that this amount was used in its entirety to discharge the Arab Bank loan.
The evidence provided by Michael and his siblings in relation to the 1994 discharge and the 1994 mortgage will now be discussed. Evidence in relation to the 1998 discharge will be set out under a separate heading below.

Nature and Amount of Arab Bank loan and the 1994 and 1998 Discharges

This section of the judgment will fix upon whether a loan was, in fact, taken out with Arab Bank, the amount of that loan and discharge of the same, as well as the discharge of the previous mortgage. Some of the evidence will traverse the question of what the alleged loan money was spent on but that question will be fully considered under the next heading.

The Evidence of Michael

Michael gave the following evidence in the December affidavit: 32. My father and I eventually organised a loan through the Arab Bank in Campsie in the sum of about $90,000 dollars ("the loan"). … 35. The mortgage evidences stamp duty was paid on a sum of $50,000. My disability/s often heavily curtail my memory, but I am certain we borrowed $90,000. 36. Annexed hereto and marked "MA6" is a copy of a Historical Title Extract and a Discharge of Mortgage No U655947, all of which evidence a subsequent mortgage was discharged on the same day as the mortgage. I am not sure at this stage but we/I possibly borrowed moneys in addition to the $50,000 to pay down this mortgage.
In the February affidavit, Michael swore that in 1998 a conversation took place between himself, Arze, Nouhad and Tony in relation to the payout from Colonial Life that Michael was to receive. That conversation referenced the Arab Bank loan as follows: Arze: "What are we going to do with the money?" [Michael]: "We need to give the money back to the Arab Bank for a loan of $90,000." Arze: "Why are you paying this $90,000, can I please ask what the loan was for?"
The evidence given in relation to the Arab Bank loan in both the March and April 2017 affidavits were in identical terms. Michael stated, "I paid Mum's legal costs of $28,000.00, borrowed (with Mum and Dad) $90,000 from Arab Bank under a mortgage ("the Mortgage") secured on the property to refinance the existing mortgage debt…and over time continued to repay the loan of $90,000 and in full, with interest".
Finally, in his May 2018 affidavit, Michael gave evidence that Tony stated in the presence of Michael and his siblings, "Michael has taken out a loan to pay Mum's legal fees and to renovate the house" (see [223] of this judgment, although the evidence generally concerned Tony providing information to Michael's siblings as to the promise: evidence I will later reject). No further detail in relation to the Arab Bank loan was provided in this affidavit.
Michael's affidavit evidence, set out above, is consistent in maintaining that a loan was taken out, but some inconsistencies are apparent in the details of the Arab Bank loan between affidavits. Firstly, Michael seems to display a degree of uncertainty as to the exact amount of the Arab Bank loan, specifically, whether $50,000 or $90,000 was borrowed. In the December, February, March 2017 and April 2017 affidavits, Michael stated that $90,000 was borrowed, however, in the December affidavit, Michael also references that stamp duty was only paid on $50,000 and that extra borrowings possibly occurred on top of the $50,000 borrowing. This statement also raises an inconsistency of whether there was one single borrowing of $90,000, one single borrowing of $50,000, or multiple borrowings. Michael's affidavit evidence does not clarify that point. Finally, there appears to be an inconsistency as to who precisely took out the Arab Bank loan. Michael's evidence in the December affidavit is that that he and his father organised the Arab Bank loan, which is inconsistent with evidence provided in the March and April 2017 affidavits that the borrowing was undertaken by Michael, Tony and Nouhad.
Michael did not give evidence about the mortgage in examination-in-chief.
In cross-examination, Michael firstly stated that the loaned amount from the Arab Bank was $90,000: Q. Sometime around May potentially, in 1994, and then some time after that you and your father organised a loan through the Arab Bank, that's your evidence? A. That's correct. Q. Your evidence is that was the sum of 90,000? A. Correct.
Immediately afterwards, Michael seems to resile from this position, stating that $50,000 was borrowed from the Arab Bank, but that $90,000 was borrowed in total: Q. That's not correct is it, you didn't obtain a loan for 90,000 did you? A. Yes there was, counsel. There was, if I can just find that evidence, because there was a part of that loan. Because if you have a look counsel, it's got the loans to 50,000 why in the hell would I have been paying it out for three years, at $300 a week, have a figure left over of 81,000. That 40,000 must've come from somewhere. Q. Mr Awad, I haven't taken you to any evidence, what are you talking about when you talk about 50,000? A. Well the 50,000 of the Arab Bank loan. The one that we brought proof of. There's a part of it which was paid out of a total of 90,000. 81,000 in a cheque and 9,000 in payments, over the two years.
However, Michael also maintained that there was only one loan: "there was one promise and one loan made".
When it was pointed out to Michael that there was no reference to a $90,000 loan in the documentary evidence, Michael agreed, but maintained that $90,000 was borrowed: Q. Do you agree that nowhere in this document is a reference to 90,000? A. No, there isn't Q. That's what yes or no? A. No. Q. No, you agree that there's no reference to the 90,000? A. No. But that's what I understand, counsel. I'm not a lawyer to understand to read these papers, one hundred per cent. Q. Out of fairness Mr Awad, I need to put it to you that it's not truthful when you say that there was a mortgage that you entered into with your parents, where their loan amount was 90,000, that's not truthful is it? A. It's very truthful, counsel.
The deficiencies of Michael's evidence as to the $90,000 loan can be summarised as follows: 1. Michael gave inconsistent evidence as to whether $50,000 was borrowed from Arab Bank or whether $90,000 was borrowed and as to whether the Arab Bank loan was a single borrowing or multiple borrowings. In cross-examination, Michael's initial confirmation that the borrowed amount from Arab bank was $90,000 conflicted with his statement that he "brought proof" of a $50,000 Arab Bank loan. 2. Michael's evidence that he knew that the figure borrowed was $90,000 because he knew that Arze had been paying it off for two and a half years was firstly inconsistent with all other evidence he provided that he paid back the Arab Bank loan (for example in cross-examination he stated "why in the hell would I have been paying it out for three years"; see also below at [323] where Michael states that he was paying off the Arab Bank loan until the superannuation payment). That evidence also needs to be seen in the light of Arze's evidence. In her affidavit she does not depose to having any knowledge of the Arab Bank loan until 1998 (years after the repayments were said to have been made by her or by Michael). When challenged as to whether that was the first time she discussed the Arab Bank loan she stated that she did have knowledge prior to that time (see example at [227] of this judgment). That prior knowledge, however, needs to be seen in the context of her evidence that she did not contribute to discussions of financial matters with Michael which itself was inconsistent with her having discussed and made repayments on the Arab Bank loan in accordance with Michael's evidence (even though that evidence too was the subject of prevarication).

The Evidence of Arze

Arze gave evidence in her February 2017 affidavit that in a 1998 conversation between herself, Michael, Tony and Nouhad, in relation to Michael receiving around $130,000, the following was stated in relation to the Arab Bank loan, among other things: [Arze]: "What are we going to do with the money?" Michael: "We need to pay off the Arab bank loan of $90,000."
Arze did not provide evidence in relation to the mortgage in examination-in-chief.
In cross-examination, Arze stated: Q. I put it to you that that is not truthful evidence to this Court? A. No, honest to God I'm saying the truth. That's exactly what happened. I ask them where the money going to go. Then my father in law said my husband said there is a loan 90 grand to the Arab bank. I ask what that 90 grand for and he sitting on the table. They said they got loan because the house my mother in law had a court and she lost and she had to pay and they lost the house and no one helping them to pay the loan. That's why my husband got the loan and paid them and saved the house to be sold. That's why.

The Evidence of Jim

As already mentioned, Jim, in his affidavit, stated: 5. I recall having a conversation with my father, I believe sometime in the early to mid-1990's, in which he stated to me words to the effect of "We need to borrow money against the house to pay off Michael's debt, as well as pay legal fees and for your weddings and a kitchen renovation".
However, Jim provided no further detail as to this borrowing, nor did he clarify what "Michael's debt" was.
Jim did not provide evidence in relation to the mortgage in examination-in-chief.
The evidence of Jim in cross-examination was that money was borrowed from the Arab Bank. He stated: Q. And did you learn, by conversation in the home, that he and your parents borrowed money from a bank for that purpose, amongst others, did you learn that? A. They did borrow. Q. And was that bank Arab Bank? A. Yes.
Jim stated that he was unaware of details relating to the discharge of a previous loan: Q. Did you hear that the Arab Bank loan, did you hear anything about the Arab Bank loan refinancing a previous loan from a bank? A. No. Q. Did you hear anything about whether there was a previous loan from Westpac? A. No.
Jim provided no further details in this respect.

The Evidence of Joseph

Joseph did not refer to the 1994 discharge, the 1994 mortgage or the 1998 discharge in his affidavit evidence, nor did he give evidence in examination-in-chief.
In cross-examination, Joseph stated that a loan was taken out with the Arab Bank: Q. In the year that you went was there some discussion about refinancing the home at Bexley with Arab Bank? A. Yeah, there was a loan taken out specially to help Michael get married and come back to Australia because - help him to stabilise him financially.
His evidence was that the Arab Bank loan was taken out to assist Michael and for Michael to assist his parents: Q. You agree, don't you, that Michael helped your parents by paying the legal costs owing to Healey, and taking on the payments of the Arab Bank loan? A. Well, it was taken for him. It was taken for him. It wasn't from my parents. They did it for him, and even myself, I never ceased to help him with the, with his tragic. I financed later on, after 20, I spent another 20,000 over there. That's 40,000, just to let you know. We had expenses also going towards him. We all help each other, in the family.
He then added further detail as to the Arab Bank loan: Q. Was there some mention of the amount that was borrowed from the Arab Bank? A. Yes. Q. Was it $90,000? A. No. I know, it got up to 50. It was going to be less but because the kitchen was got to be included, it went up to 50. It was on the condition that Michael goes overseas, and gets married, and, yeah. Q. Did you learn that Michael was one of the borrowers of this money? A. Yes. Q. From Arab Bank? A. Yeah, my parents wanted to flick him, you know. Q. He was a borrower, with him, to your knowledge? A. Yeah.
He later gave evidence confirming his recollection as to the value of the Arab Bank loan and the existence of a previous loan: Q. You're quite definite, are you, that the loan was only for $50,000? A. From my recollection. Q. But there was a previous mortgage to Westpac, wasn't there, that you were told about? A. What was that? Q. Before Arab Bank - A. Yes. Q. - came into the picture, there was a mortgage to Westpac, wasn't there, that you heard about, you were told about? A. There was a, the house, a long time ago. For the house, they were paying off the house. She mentioned, is that what you're referring to? Q. I'm referring to that, yes? A. Yes.
He later also denied having heard that the figure was $90,000: Q. I want to press the suggestion to you that the amount of money that was being borrowed from Arab Bank, that was discussed with you, was $90,000? A. I don't know about that. I don't, I don't Q. You don't deny that? A. I wasn't informed that, I wasn't informed that. Q. You don't deny that though? A. No, I don't, I don't even suggest that he was. I just know that it was not a huge amount. Not the 90. Q. That's the first time you've heard 90, is it? A. That's right. Yep.

The Evidence of Paul

Paul did not refer to the 1994 discharge, the 1994 mortgage or the 1998 discharge in his affidavit evidence, nor did he give evidence in examination-in-chief.
In cross-examination, Paul stated that he remembered discussion occurring in relation to the Arab Bank loan: Q. And was there some discussion that you heard about refinancing with Arab Bank? A. Yes. Q. And was there some discussion that you heard about paying out the previous mortgage to Westpac? A. No. Q. No, you don't remember that? A. No. Q. But was there some discussion about borrowing from Arab Bank enough to pay the legal costs and also to do some renovations on the house? A. Yes.
That was the extent of Paul's evidence in that regard.

The Evidence of Zouha

Zouha did not refer to the 1994 mortgage in her affidavit evidence, nor did she give evidence in examination-in-chief.
In cross-examination, her evidence was that she recalled hearing about the borrowing from Arab Bank but not any further details about it. She stated: Q. Was there conversation at that time, this is before your father and your brothers went to Lebanon to look for wives for your brothers, was there conversation about refinancing an existing loan from Westpac? A. I really didn't hear about that, sorry. Q. You didn't hear about that? A. No. Q. Did you hear anything about borrowing from Arab Bank? A. Yes, I heard about Arab Bank. They mentioned it. Q. Did your parents tell you that they had to borrow from Arab Bank in order to pay the costs that were owing to Healey and the cost of the renovating of the house? A. I didn't hear that one. Q. What did you hear about the A. I heard that they were going to Lebanon, him and my brothers, to get married, that's all I heard. Q. What did you hear about the loan from Arab Bank? A. I didn't hear about the Arab Bank, because I didn't get involved a lot with something like that. Just dad said, "I'm going with your brothers to Lebanon," and that was all, to get so they can get married, your brother Jimmy and your brother Michael, and that was it. I don't ask too many questions unless they tell me. Q. Was there any discussion about Michael borrowing from Arab Bank as well? A. I don't know.
She later stated that she might have heard a conversation in relation to Michael having taken out the Arab Bank loan: Q. I suggest to you that it came up in conversations with your parents, or with your father, that something along these lines was said. "Michael has taken out a loan to pay mum's legal fees and to renovate the house. He stopped her from becoming bankrupt"? A. No, dad never said that. And they wouldn't get bankrupt either, they had money. Q. You don't remember hearing the word "bankrupt"? A. No, never. Q. What about the words, "Michael's taken out a loan to pay mum's legal fees and to renovate the house"? A. I might have heard that. But that's all. Q. You might have heard that? A. Yeah, but that's all. Not bankrupt.
Zouha also stated that she might have heard something about Michael paying back the Arab Bank loan using his superannuation payment: Q. And did you hear anything about what he did with that superannuation? A. No. Q. Did you hear for example anything about him repaying the Arab Bank loan from the superannuation? A. I don't recall. Q. You don't recall? A. I don't recall. I don't want to say anything Q. You haven't said you didn't hear about it, you've just said you don't recall? A. Sorry. Q. Do you want to think about it a bit harder? A. Yes. Maybe. Q. You maybe heard something about that? A. Yes. Not a lot, but I may.
Zouha could not recall but could not deny that Tony had made a statement to the effect that Michael had paid off the Arab Bank loan: Q. Then later on, I suggest to you your father said, when you were present? A. Yes. Q. Words to the effect "Your brother's paid off the loan"? A. I'm not sure about that part, brother paid off the loan. What loan? You mean Q. This is the Arab Bank loan. Your father said that Michael had paid off the Arab Bank loan? A. I can't recall it, sorry. Q. You can't deny that though, can you? A. No, but I can't recall.
In summary, the evidence of Michael's siblings confirms that a loan was taken out with the Arab Bank. Jim and Joseph expressly confirmed this fact in cross-examination, whilst Paul and Zouha confirmed that there was discussion about the Arab Bank loan.
The siblings' evidence was not consistent with $90,000 having been borrowed from the Arab Bank. Jim was not questioned as to the amount of the Arab Bank loan. Joseph stated that the amount was not $90,000 but rather up to $50,000. Neither Paul nor Zouha were questioned as to the amount of the Arab Bank loan.
The siblings' evidence cast no light as to whether the Arab Bank loan refinanced a previous loan to Westpac bank, or whether there was a previous bank loan. Jim denied hearing anything in respect of either issue. Joseph only recalled a previous loan and was not questioned as to whether a refinancing occurred. Neither Paul nor Zouha recalled discussion in relation to paying out or refinancing of the Westpac loan.

Michael's Case

As mentioned above counsel for Michael stated in the cross-claimant's written "brief outline of [opening] submissions" that Michael's evidence was that "in 1994 he paid Nouhad's legal costs of $28,000 to G H Healey & Co and then borrowed $90,000 from Arab Bank (["]Arab Bank's loan"), secured by its Mortgage on the property, $40,000 of which was applied to discharge an existing mortgage to Westpac Bank, and the balance of $50,000 to renovate the property".
However, in closing oral submissions he stated "$90,000 was used to pay $28,000 for the legal costs, [$]50,000 approximately for the renovations, so those two figures total [$]78,000, and another [$]12,000, it seems, went on paying for two weddings and some jewellery for the mother".
Michael's evidence was not consistent with either of those statements advanced by counsel. Michael stated in his December affidavit that "once the loaned moneys were drawn down", $28,000 went towards meeting the payment of Nouhad's legal fees, $40,000 to $50,000 went towards renovations of the property, the purchase of two new bedroom suites, a fridge and other electrical appliances, $8,000 went towards Nouhad purchasing jewellery and the remaining $12,000 on a trip to Lebanon.
The central inconsistencies between those accounts are threefold: 1. First, inconsistency exists as to whether the solicitor's bill was paid prior to the Arab Bank loan being taken out, or subsequently using the money from the Arab Bank loan. 2. Secondly, there is an inconsistency as to whether the Arab Bank loan was used to discharge a previous loan to Westpac Bank. 3. Finally, there is an inconsistency as to whether the Arab Bank loan money was expended on the weddings, Nouhad's jewellery and the trip to Lebanon and, if so, the relevant amount expended.

The Solicitor's Bill

The preponderance of the evidence was that Michael paid the solicitor's bill. Firstly, Paul's evidence supported Michael's payment of the $28,000 in legal costs. Paul agreed in cross-examination that Michael "came to the rescue" in respect of the legal costs. Paul also agreed in cross-examination that there were occasions where Tony had said that Michael had paid off Nouhad's legal bill. Further, Zouha said that she "might have heard" Tony say, "Michael's taken out a loan to pay Mum's legal fees and to renovate the house".

The Renovations

The evidence supported the conclusion that Michael did expend on renovations to the Bexley home. However, the evidence is inconclusive as to how much was spent on the renovations.
The evidence given by Michael in his December affidavit as to these questions has been set out above (see [293]). The evidence provided in that affidavit that around $40,000 to $50,000 was spent on renovations is the only evidence relating to the amount of the expenditure. No evidence was given by Michael in his evidence-in-chief. In cross-examination, the extent of Michael's evidence was as follows: "So I paid all that money to renovate, new kitchen, new bathroom, new carpet, new tiles, new gutters, new fence".
Michael was not cross-examined as to whether any of the renovations were performed under insurance, although some of his siblings gave evidence about that matter.
Prior to turning to the individual evidence of Michael's siblings, in relation to the renovations, it is useful to briefly summarise the relevant evidence of the siblings in that respect: 1. Michael's siblings provided consensus that the kitchen of the property was either renovated (Joseph and Zouha) or that a new kitchen was put in (Jim and Paul). 2. As to the bathroom, the siblings were to a large extent consistent in stating that renovations occurred under an insurance claim. Jim noted, in that respect, that a leak was fixed under insurance and, similarly, Paul and Joseph both stated that re-tiling occurred under insurance due to leaking. Zouha, in relation to the same, was unable to recall. 3. The evidence of Michael's siblings was also mostly consistently in contending that a carpet was installed prior to the Arab Bank loan. The only contrary evidence was that of Zouha; who stated that the carpet was put in the year before the 1995 trip to Lebanon. 4. The sibling's evidence was not uniform as to painting of the property occurring. Paul and Joseph agreed that painting occurred but did not attribute the painting to Michael. Jim denied that the painting occurred and Zouha could not recall. 5. None of the siblings agreed that fencing was put in. Of Michael's siblings, only Paul agreed that new lights were installed.
The specific evidence of the siblings in relation to the renovations will now be set out.
In cross-examination, Jim gave evidence that between the time that the Arab Bank loan was taken out (in 1994) and early 2016, a number of renovations to the property were undertaken.
First, Jim stated that there was a new kitchen: Q. Before you left, to live elsewhere, was the kitchen at Bexley renovated? A. Yes. Q. And with a new kitchen? A. Because he wanted a new kitchen, my brother, and he said, "We want to get married and bring my wife to a new kitchen."
Secondly, in relation to the bathroom being renovated, Jim's evidence was that a leak of water was fixed by insurance, but nothing further was undertaken: Q. And was there a new bathroom? A. I'm thinking about the bathroom, I don't think, I don't know about the bathroom. Q. I suggest to you that the bathroom was re tiled, do you have any memory about that? A. There was a leakage of water the insurance fixed. Q. And there was some new guttering and roof repairs carried out? A. No. Q. No? A. No.
Thirdly, Jim stated that a new carpet was put in but that it was put in by his parents. His evidence was that he thought the carpet was put in before the Arab bank loan: Q. Was there, before you moved out, a new carpet put into the lounge room? A. That was we moved into the house it was a wooden floor, so they put a new carpet in. Q. Was the new carpet put in - A. By my parents. Q. Yes, and was that new carpet put in before you moved out? A. Yes. Q. And was it put in after you heard about the Arab Bank loan? A. Yeah, it was put in, in the house. Q. And was it put in after you heard about the Arab Bank loan? A. I think they put it in before the loan.
Jim stated that painting did not occur: Q. Was there some new painting going on? A. No.
Jim did not respond as to whether new fencing was installed: Q. New fencing? A. I don't know where you're going with these questions, they're just normal maintenance on a house that ages like everything else. So obviously as they wear and tear you repair.
Paul also gave evidence in respect of the renovations. In cross-examination, in relation to renovations performed on the kitchen, he stated: Q. And at about that time, we're talking about 1994 now, you remember there being a new kitchen put into the Bexley home? A. That new kitchen was put into the home because my brother Michael he wanted to live there and he said, "If I have to bring my wife into this house the kitchen doesn't look nice, so I'd rather renovate the kitchen." Q. But it was your parents' home? A. Of course it was. Q. And I'm suggesting to you that a new kitchen was put in at about that time? A. Yes.
In relation to the bathroom, Paul stated: Q. And also, the bathroom was re tiled? A. Yeah, not - no, he didn't tile it, it was redone through the insurance. Q. There was an insurance claim, was there? A. Yes. Q. Is that because of some water leaking through - A. Yes, because there was water leaking, we had to call the insurance, the insurance came and cut a hole through the backwall and the floor to identify the water leak through the pipes. And they acknowledged that leak and they replaced the hallway and the bathroom and tiled the walls. Q. And tiled the roof? A. Not the roof. Q. No? A. Where the water leak? Q. Didn't the water come through - A. Alongside the through the shower, through the back of the wall because they couldn't demolish - also there was a little cupboard so the man decided to cut a hole through the floor and look through the - under the floor to see where the water, if he saw the water was coming through the between the wall. Q. And was the water coming in because of some problem with guttering on the roof? A. No, because of the cracked - or the shower.
He also accepted the following: 1. that a new carpet was put in, but stated that it was his father that put it in; 2. that some repainting of the house occurred; and 3. that a chandelier was installed.
He did not accept, however, that fencing was installed or renovated.
Turning to the evidence of Zouha. She agreed that in 1994 there was a different coloured kitchen: Q. And just before they went there, in the year before they went there, did you know that there were some renovations done at the home at Bexley? A. I think I heard about the kitchen. Q. Did you see the kitchen, did you see any renovations to the kitchen? A. I might have seen the kitchen, yes, because it was a different colour, yes.
She could not say whether renovations to the bathroom took place, despite having visited the house at the relevant times: Q. And was there a new bathroom? A. Not as Q. Or new tiles in the bathroom? A. I didn't I don't I'm not a person that go around looking when I go to somebody's house, sorry. Q. But this was your parents' home? A. Yes, it was my parents' home. Q. And you were visiting that home from time to time? A. Yeah, time to time at those time.
She stated that she remembered a new carpet having been put down: Q. And I suggest to you that the year before your father and your brothers went to Lebanon to look for wives there was some new carpet put into the home at Bexley, in the lounge room? A. I think so, I heard about that, yeah, it looked new. Q. Did you see it? A. Yes, because I walk in through that door, it's a front door so I can't miss that one.
However, she could not recall whether painting, fencing or lighting was put in.
Finally, Joseph gave evidence in relation to the renovations in cross-examination. First, he agreed that the kitchen was renovated.
Nextly, Joseph stated that the bathroom was retiled but indicated that Michael was not responsible: Q. And the bathroom was retiled, wasn't it? A. Not under Michael's. Q. There was a problem with leaking water in the bathroom, wasn't there? A. That's right, there was. Q. And it had to be repaired, didn't it? A. That's true. Q. And it involved retiling it as well, didn't it? A. That's right, the walls and the floors.
In terms of the repainting and the instalment of the carpet, Joseph stated that repainting occurred but that the installation of the carpet was well before the relevant time: Q. And there was re‑painting done of the house at about the same time, repainting? A. There was repainting but I don't think it was ‑ because it was Michael's intervention there. Q. For whatever reason? A. Yeah. Q. I'm not suggesting that Michael was involved in repainting? A. Yeah. Q. But there was repainting, and there was a new carpet laid in the lounge room? A. Not that I recall on that date? Q. You don't recall that? A. Not then, not then. It was way before, the carpet was done way before.
Joseph could not recall if fencing was put in.
In his affidavit, Joseph also gave evidence that later renovations were performed on the property. He stated: 12. In approximately January 2013, I noticed that Michael had started to perform work on the house such as painting, changing light fittings and fixing the front fence. I recall having a conversation with Michael in approximately February 2013, where he said to me words to the effect of: I'm working on the house, it needs a lot of fixing". I then said in reply words to the effect of: It's liveable as it is, it doesn't need any fixing". Michael then said to me words to the effect of: "It's not up to my standard of living".
Joseph was not cross-examined as to those later renovations to the property. However, he did mention that Michael furnished the unit that he was renting: Q. Did he tell you that he used some of that money to repay the Arab Bank loan? A. Yes. Well, I heard that he did that. And also he sort of moved out, rent a property and furnished it, all that type thing, yes. Q. He used some of that money to improve the furniture at the property, he bought a couple of bedroom suites? A. For his unit, you mean? The one he rented. Yeah. He rented.
Michael's siblings also gave evidence in cross-examination as to whether a neighbour of the property was involved in the renovations. The highest that this evidence went was that the neighbour was involved in providing a quote. There was no suggestion that the builder performed any of the renovations. There were no receipts as to the renovation.
In relation to what the Arab Bank loan money was expended on, the evidence of Michael's siblings in cross-examination was as follows. Jim mentioned that he learnt that the Arab Bank loan was to pay Michael's debt, the solicitor's bill, the weddings of Jim and Michael and the kitchen renovations. This was mostly consistent with Joseph's evidence that the Arab Bank loan was to help Michael get married, to stabilise Michael financially and to renovate the kitchen (Joseph did not mention the solicitor's bill, as Jim did). Paul and Zouha's evidence differed. Paul agreed that the borrowing was to pay the legal costs and to renovate the house. Zouha stated that she might have heard that the Arab Bank loan was to pay the legal costs and to renovate the house.

The Evidence of Michael

The relevant evidence of Michael in the December affidavit, in this respect, was as follows: 44. I nonetheless kept paying off the loan the $90,000 from the Arab Bank until about May 1998 and when I received my Total Permanent Disability payout of $130,000 from Colonial Life under policy no 10053808 and I paid out the loan in full plus interest and discharged the mortgage over the Bexley property.
In the February affidavit, he did not refer to the repayment and discharge of the Arab Bank loan save for referring to the conversation which has been outlined above at [163].
In the March 2017 affidavit, Michael gave the following evidence: "over time [I] continued to repay the loan of $90,000 and in full, with interest".
In the April 2017 affidavit, Michael added: 12. On 27 April 1998 Colonial Life made a Total and permanent Disability payment to me of $149,858.32, into my Westpac Banking Corporation Classic Account [number omitted].
In the May 2018 affidavit, Michael gave evidence of a later statement that Tony made to all of Michael's siblings in Michael's presence. This statement by Tony was: "Your brother has paid off the loan…".
The affidavit evidence of Michael, in this respect, also contain some small inconsistencies, set out below: 1. Firstly, the amount of the payment from Colonial life was stated to be $130,000 in the December and February affidavits, respectively, but $149,858.32 in the April 2017 affidavit. 2. Secondly, the superannuation payment was said to be received "about May 1998" in the December affidavit, yet in the April 2017 affidavit, Michael stated that the date was 27 April 1998 (27 April 1998 is consistent with the bank statement described at [251] of this judgment).
In cross-examination, Michael was firstly challenged as to the inconsistency of the superannuation payment amount. He conceded that the amount was not $130,000: Q. You've given evidence at various points in your affidavit that you received a total permanent disability payout of 130,000 that's correct isn't it? A. Yes, counsel. Q. But that amount is incorrect? That's not truthful was it? A. It's not, because my solicitor at the time told me the figure is around 130,000 and I was legally blind. When that official amount came, my solicitor gave me the cheque and it was for 149,000.
In cross-examination, Michael was also challenged as to whether he did in fact transfer the $81,024 to the Arab Bank to discharge the Arab Bank loan: Q. Now it's not correct that you transferred 81,024 to the Arab Bank, is it? A. Yes, it is. Q. Can I take you to look at the bottom line of that bank statement where it says 28 April 81,024? A. That's correct. Q. Do you see that? A. Yeah, it's 81,023 - and 24. Q. I put it to you that this does not identify a payment to the Arab Bank, do you agree with me? A. No. Q. Do you say to the Court that that identifies - A. I definitely don't agree, it's 100% your Honour it went to the Arab Bank, 100% counsel. Q. I'm just going to finish my question for the record - A. Well you asked me counsel if it's - Q. - it's a very important part of the evidence - A. - you're sure. Q. I put it to you that this does not identify any payment to the Arab Bank, do you agree with me? A. By looking at it there counsel, yeah, it is, you can't tell.
Michael also gave evidence in cross-examination that Arze was paying back the Arab Bank loan, which was inconsistent with his prior evidence that he was paying back the Arab Bank loan. He stated: Q. It's incorrect that you have any memory of the amount in truth, to this Court, you have no good memory of the amount of the mortgage in 1994, that's correct isn't it? A. I do, your Honour. I know a hundred per cent it was for 90,000. Because I know my wife was paying off her two and a half years, that's what reduced it to 81. And I had the final cheque to the close that account was 81,000, your Honour.
This evidence supports the conclusion that the proposition put to Michael in relation to repayment of the Arab bank loan, as set out at [148] of this judgment, was, in fact, properly put and did not reflect poorly on the credibility of the first cross-defendant; as Michael had given inconsistent evidence in relation to whether he or Arze made repayments on the Arab Bank loan.

The Evidence of Arze

The extent of Arze's affidavit evidence was that she "became aware that Michael was going to receive an amount of about $130,000". This is in addition to the statement said to have been made by Tony around 1998 which has been set out at [265] of this judgment.
In cross-examination, Arze's evidence in relation to the discharge of the Arab Bank loan was brief. The limit of her evidence was as follows: "That's why my husband got the loan and paid them and saved the house to be sold. That's why".

The Evidence of Jim

Jim did not provide evidence in relation to the discharge in his affidavit.
In cross-examination, Jim agreed that Michael had told him that he was paying off the Arab Bank loan: Q. And Michael told you, didn't he, that he was paying off this money that was borrowed against the house? A. Yes. He was more or less helping his parents, it wasn't a loan to actually pay off the house, it was just a help. Q. But he told you he was paying off the debt on the house so that the debt could be cleared, is that right? A. He was helping out.
However, Jim disagreed that Tony had made a statement to the effect that Michael had paid off the Arab Bank loan: Q. I put to you that during your contact with your parents, after you left, and before your father died, your father said on a couple of occasions at least that Michael had paid off the loan from Arab Bank? A. Not to my knowledge. He helped pay but he didn't tell me that.

The Evidence of Joseph

Joseph did not provide evidence in relation to the discharge in his affidavit.
In support of Michael having discharged that Arab Bank loan, Joseph gave evidence that he heard that Michael used some of a superannuation payment of about $150,000 that Michael received in 1998 to repay the Arab Bank loan: Q. Did you hear some conversation from Michael about receiving a superannuation payment after he had that bad accident? A. That's right. Q. Was that in about 1998? A. [19]98, yes. Q. Did he tell you the amount was about $150,000? A. I thought it was a big amount, but, yeah. Q. Something like $150,000? A. Yep. Q. Did he tell you that he used some of that money to repay the Arab Bank loan? A. Yes. Well, I heard that he did that. And also he sort of moved out, rent a property and furnished it, all that type thing, yes.

The Evidence of Paul

Paul did not provide evidence in relation to the discharge in his March affidavit.
In cross-examination, Paul agreed that he had been told that Michael was paying off the Arab Bank loan and that he repaid the loan in full: Q. And coming back to the Arab Bank loan, did someone tell you, either your parents or Michael, tell you that Michael was paying off that loan? A. Yes. Q. And did anyone tell you, either your parents or Michael, that he repaid that loan in full from his superannuation? A. Yes.
Yet the amount that was allegedly repaid is unable to be firmly determined.

The Evidence of Zouha

Zouha did not provide evidence in relation to the discharge in either of her March 2018 affidavits.
In cross-examination (see the evidence set out above at [286]), she could not recall the exact details of the superannuation payment. Nor could she recall what Michael did with the money from that payment.

The Wills

This section of the judgment concerns the evidence in relation to the wills. As previously mentioned, there are four wills relevant to the factual background and disposition of this matter. By way of summary, and with necessary repetition, they are as follows: 1. The 2003 wills - two individual wills made by Tony and Nouhad, respectively, in 2003 (both prepared by Theodore Solomon & Partners); 2. The 2013 will - the second will made by Nouhad on 18 March 2013 (prepared by H K Husseini & Co Solicitors); and 3. The 2016 will - the third will made by Nouhad on 24 February 2016 (prepared by Simon Diab & Associates).

The 2003 wills

The 2003 wills were structured similarly. Each will had the effect of leaving the entire estate to the other spouse or, in the case that the other spouse predeceased the testator/testatrix, splitting the estate equally between Joseph, Paul, Zouha, Michael and Jim.
Zouha stated that Tony's will was held at the Rockdale branch of Westpac Bank and that she had requested to see it in mid-2016.
Joseph, in his affidavit, stated: 8. I recall having a conversation with my father in approximately 2003, where he said words to the effect of: "I have been to see my solicitor and have made a will. When I pass away everything will go to your mother, and will then be split equally among you and your siblings." I did not see a copy of my father's will at this stage.
Joseph was crossed-examined in relation to that conversation deposed in his affidavit, in particular, with respect to the following: 1. the precise time at which the conversation took place; 2. the contents of the conversation; 3. whether he saw a copy of the will at that time; 4. whether the will was the only will made by Tony; 5. whether he was told that his parents were joint tenants of the property; 6. whether he knew that survivorship occurs in the absence of a will; and 7. whether he still maintained that the conversation took place;
As to (1), Joseph initially he stated that the conversation occurred in May or June 2003: Q. Can you remember when that was in 2003, what month? A. It's been many years. I don't know, I assume somewhere in the middle, middle of the year, May, June, May, I can't remember. Q. It wasn't late in that year? A. No, I think more like the beginning.
When it was pointed out to him that the will was dated 18 August 2003, he gave the following evidence: Q. Do you still say that he had this conversation about having made his will in May or mid‑2003? A. Well, I said I assume, I wasn't accurate, I wasn't - Q. You'd have to revise that evidence, wouldn't you? A. It's been a while. Q. I know but you'd have to revise it to after the - A. Yeah, and it was cool, May, I assume, you know, it was cool in the head. But to give you that date I just threw it off the air like that. Q. But it has to be after the date on the will, doesn't it? A. Well this is the will, which is great, you know. Q. And this will is dated 18 August 2003? A. That's great, it's fine. Q. The conversation about having made a will has to be after that, doesn't it? A. Well according to the will. Q. You don't doubt the date on the will, do you? A. Sorry? Q. You don't question the date on the will, do you? A. No, I don't at all. Q. What I'm putting to you, and there's nothing really tricky about what I'm putting to you‑ A. Because dad said, "I just signed a will and I left equal shares." Q. So that conversation had to be after 18 August‑‑ A. Yes. Q. - 2003, didn't it? A. Yeah, exactly, absolutely.
As to (2), he confirmed that his account in the affidavit was correct: Q. Just a moment. We're not looking at the will at the moment, we're looking at your affidavit about what he said to you about the will? A. Yep. Q. So according to you he said, "When I pass away everything will go to your mother and will then be split equally among you and your siblings"? A. Yep. Q. Are you sure about those words? A. Yeah, because as you said, we all know that nothing happens with the house until mum passes away, and that's what he's trying to state, and that's what I'm trying to say here, yep.
As to (3), (4) and (5), Joseph simply agreed.
As to (6), he did not know that survivorship occurred in the absence of a will.
As to (7), he responded "I believe so".

The 2013 will

The 2013 will was introduced late in proceedings and was contained in the affidavit of the first cross-defendant's solicitor Michael Patrick Rumore sworn 30 December 2016. The 2013 will, in effect, left half of Nouhad's estate to Michael, with the other half to be split equally between the remainder of Nouhad's children.
Zouha raised concerns over the circumstances in which the 2013 will was made in re-examination. She gave evidence that she, as Nouhad's power of attorney, was not contacted or notified about the making of the 2013 will and that Nouhad did not understand the 2013 will that she made. Zouha gave evidence that this was due to the fact that Nouhad was illiterate, but the evidence is also unsurprising in light of the aforementioned fact that Nouhad had been suffering from dementia from 2009 at the latest. Zouha's evidence, in respect of the 2013, will was as follows: So I took her [Nouhad] there to find out, and I went and got the will, and then I took her [Nouhad] upstairs, I wanted to face Mr Husseini, to see if mum was there with him. And as I walked in, Mr Husseini, she said, he said to her, "Sorry. Oh, good afternoon Nouhad, remember you come, you and Michael had done the will here?" So I walked in and I said to him, "Oh, hi, Mr Husseini," Hashim Husseini. I said, "Hi," I said, "You know I'm the power of attorney, and there's my card, I'm already registered." And just looked at me, and I said, "Why wasn't I consulted about mum's will? No‑one told me, like that she came, her and Michael." He said, "She came, her and Michael, and done the will." So I said, "Why wasn't I consulted? Why was I got a phone call, or something to, of that effect."
Zouha continued: Q. You mentioned something about reading the will to your mum? A. Yes, I did read the will to my mum, when we went downstairs, and my uncle, I read it, I said, "Mum. You done the will, you done the will, and you've got there, you've left everything to Michael. Is that all right? Are you happy with that?" That's all, I didn't say nothing, she goes, "No, it's to all my children." I said, "Mum, the will said it's to Michael only. Are you sure mum, you know, if that's what you want, it's fine." I said, "I'll be happy with that." She said, "No, no, for all of my children. It's for Paul and Jimmy and Joe and you. It's for all of my children. I told you that. I tell you, you and me and dad, that it's for all of my kids." But I said, "Mum, this is what's gone in there," she said, "I can't read and write, I don't understand," she said. Because my mum is illiterate, she can't read and write English or Lebanese. And she can't, she never went to school.
Zouha was cross-examined as to why she did not annex the 2013 will to her 14 May 2018 affidavit, in circumstances where she did annex the 2003 and 2016 wills. Zouha admitted in cross-examination that she first saw a copy of the 2013 will in early 2016. She then obtained a copy of that will and provided it to her mother's previous solicitor, Mr Rumore, who annexed a copy to his affidavit of 30 December 2016, which was read by Garling J on an urgent hearing the day of an application by Michael and Arze to stay a Writ of Possession of the property, which Zouha attended. Finally, Zouha twice conceded that she could not explain why she didn't annexe a copy of that will to her affidavit of 14 May 2018.
The cross-claimant submitted that Zouha's failure to do so was selective and not bona fide, and adversely affected her credibility and reliability as a provider of instructions. She was cross-examined as follows: Q. Is there any reason why you didn't annex the 2013 will? A. Because I wasn't there. Q. No, but you had a copy of it in the affidavit of Mr Rumore who appeared when you were present before Mr Justice Garling on 30 December 2016, I think you said you saw that affidavit? A. Yes, I saw it at the Court, yes. Q. So, did you not have a copy of that affidavit? A. Yes, I did. Q. Why didn't you take out from that affidavit a copy of the will of 2013 and include that as well as the other two wills? A. Because there was a lot of mistakes in that one. Q. You weren't trying to be selective, were you? A. No, not being selective, it's my name was wrong. Q. You weren't trying to bolster your denial of your brother's claim by selectively annexing copies of wills that A. No, I wasn't selecting copies, I was not there when he that was done in 2014.

The 2016 will

The effect of the 2016 will was that Nouhad's estate would be divided equally between Michael, Joseph, Paul, Jimmy and Zouha, with Zouha being the sole executrix and trustee. The circumstances of the making of the 2016 will, as outlined by the solicitor, were that Zouha and Joseph accompanied Nouhad to the solicitor's office, the solicitors then took Nouhad's instructions, while Jimmy and Zouha waited outside. The solicitor was concerned that Nouhad had a medical condition and strongly advised her to seek medical advice and a report as to whether she had capacity to execute a will.

Credit of Michael

I closely observed Michael giving his evidence and have also considered the various components of his evidence from the record of the proceedings reflected, in part, by the summary of evidence provided earlier in this judgment.
Michael performed very poorly in cross-examination. In my view, he was a wholly unreliable historian whose evidence was on most, if not all, occasions entirely directed to his self-interest. The evidence he gave shifted during cross-examination in order to accommodate deficiencies in his evidence. When confronted with inconsistencies, he consistently resiled from his stated position. His evidence was, as submitted by counsel for the first cross-defendant, defensive, obstructive and not evidence consistent with a genuine memory of the conversations constituting the alleged promise. His evidence was unconvincing and implausible on many levels.
Supplementary to those observations, reference may be made with respect to particular features of the cross-claimant's evidence adversely reflecting on his credit as a witness. Those features are referred to below (without elaboration where the subject matter has been the subject of consideration earlier in the judgment): 1. There are substantial inconsistencies in the evidence of Michael as to the promise by its content and surrounding circumstances. His evidence as to the loans is inconsistent and contradictory. 2. Michael consistently resiled, when tested, from his stated positions, particularly in relation to core features of the circumstances under which the promise was given and the contents of the promise. 3. Michael's account of the giving of the promise was implausible in a number of respects. 1. First, on Michael's account, little meaningful detail accompanied the promise as to the nature, extent and cost of the renovations and, in an overall sense, the amount of any loan that may have been expected to be taken out. It is instructive that, when pressed along these lines, Michael gave evidence that he had in contemplation, after an opportunity to reflect upon his parent's proposal, a sum of $90,000 to fulfil the promise, which amount could not have been known at the time of the conversations in which the promise was given (from which it was contended Michael formed an expectation). 2. Secondly, Michael's evidence that the solicitor's bill contained a demand, to the effect that failure to pay within 28 days would be productive of legal action, when there was no evidence of any communication from the solicitor prior to the receipt of the solicitor's bill as to the amount of the bill or a request for its payment. Nor was there any advice in the solicitor's bill as to what steps Nouhad may take if she had queries regarding the bill. 3. Thirdly, it was implausible that the receipt of the solicitor's bill created an emergency such that Nouhad faced bankruptcy given that there was equity held in the property owned by Tony and Nouhad. This difficulty is compounded by two further considerations. First, the Arab Bank loan was not taken in Michael's name alone but secured against the property in a mortgage taken by Tony and Nouhad. Secondly, whilst a component of the alleged promise was renovations, the fact of the Arab Bank loan being taken out for that purpose as well as meeting the solicitor's bill sits ill with the notion of the Arab Bank loan being required to meet a debt which created an emergency. A more plausible explanation is that the renovations were sought by Michael in order to improve the accommodation in which he resided and in which he anticipated bringing a wife. On Michael's account, the Arab Bank loan also included a component for travel to Lebanon and his counsel contended the Arab Bank loan was for a wedding. 1. The first cross-defendant correctly contended that Michael's evidence as to his memory reflected poorly on his credit. 1. First, he emphatically maintained a high level of memory of events over 20 years ago. 2. Secondly, his evidence as to memory was inconsistent as he ultimately conceded in evidence that his accident in 1996 had adversely affected his memory. 3. Thirdly, as mentioned before, his claim to a clear memory of the promise was not matched by a clear recollection of the collateral details of the circumstances in which the promise was given. 1. Having regard to his affidavit evidence, Michael's statement that he took a number of hours to contemplate his parents offer and that the conversation containing the purported promise went for a number of hours strains credulity.
Whereas Michael's evidence as to the legal bill is supported by other evidence, his evidence as to the demand within that bill is not supported by other evidence and is implausible.
I have given consideration as to whether a finding should be made, as sought by counsel for the first cross-defendant, that Michael's evidence as to the promise and his reliance upon it was a fabrication. Such a finding is potentially available in the light of the above considerations and the fact that, in the possession proceedings, the cross-claimant was asked by M Adams J, "Why should you stay in the property? It's not yours, is it?". Allowing for the cross-claimant being self-represented (in those proceedings), it strains credulity that his response contained no reference to the promise. That was the clearest of circumstances inviting reference to that position. Rather, six months later, the cross-claimant filed the cross-claim.
However, it is sufficient to determine this matter to conclude that the applicant's account is a significant reconstruction and that his credibility as a witness was so undermined by cross-examination that a conclusion must be made that he is a wholly unreliable witness and that no reliance may be placed upon his evidence unless corroborated by other evidence.

Credit of Arze

Arze's evidence does not corroborate Michael's evidence. She too performed poorly in cross-examination and little weight should be attached to her evidence. My observation of Arze was that she was inclined in her evidence to provide every assistance to her husband's case as she was able to do and was often evasive.
Some particular features of Arze's evidence, in this respect, may be referred to: 1. She deposed to only one conversation involving the promise in her affidavit. That conversation was said to have occurred with Michael, Tony and Nouhad in 1998. This was notwithstanding that on other occasions in her cross-examination she gave evidence of conversations with Michael regarding the promise, which were not referred to in her affidavit. 2. When pressed in cross-examination about the details of her conversations with Michael regarding the promise, she displayed a poor recollection of the circumstances in which the conversations occurred notwithstanding her assertion that she had a good memory of the promise as conveyed by Michael. 3. As discussed earlier, the evidence Arze gave that she was unlikely to be engaged in a discussion about financial matters with Michael as a matter of custom was contradictory to her evidence of discussions regarding the promise.

Credit of Michael's Brothers

There was no challenge in substance to their credit and, as I have stated, my observation was that they were truthful and reliable witnesses who gave their evidence in a generally forthright and candid manner.

Credit of Zouha

Zouha was, for the most part, responsive and believable, but the weight of her evidence was diminished to some extent by passages of her evidence in which she claimed inadequate memory, which was inconsistent with her other memories of events more favourable to her case and unlikely given the subject matter about which she was questioned. Those passages of her evidence reflected an apparent reluctance to admit knowing facts about which she could be expected to know. For example, Zouha admitted visiting her parents on a regular basis, yet could not recall how old her father was when he retired, nor whether a new bathroom was installed at the property. Further, as mentioned, Zouha did not recall any discussion about Nouhad having to pay the solicitor's bill of $28,000, notwithstanding the state of the knowledge of her fellow siblings. Finally, as set out above, Zouha initially resisted providing an answer as to whether she recalled anything in relation to Michael using his superannuation payment to repay the Arab Bank loan but eventually conceded that she may have heard about it.

The Promise

Whilst the authorities make clear that it is not the existence of an unperformed promise that invites the intervention of equity, but the conduct of the plaintiff in acting upon the expectation to which it gives rise, it is foundational to establishing equitable relief that Michael prove that, on the balance of probabilities, Tony and Nouhad induced Michael to adopt that expectation by the making the promise.
In my view, Michael has not discharged that onus.
Michael's assertion was that the promise occurred over 20 years ago. His father is now deceased and his mother incapacitated. On Michael's evidence the only persons alive or able to give evidence of the promise are himself and Jim. His evidence required close scrutiny. For the reasons earlier given I do not consider Michael to be a reliable witness. Jim, who I have found to be a witness of credit, does not corroborate Michael's account. He gave no evidence confirming the existence of the promise but rather gave evidence that a loan needed to be taken out in order to pay Michael's debt, the solicitor's bill, some renovations and weddings and not by reason of the promise. It may be noted, in that respect, that both he and Michael were searching for wives in Lebanon at or about that time. Arze was not present at any relevant time concerning the promise and her evidence otherwise does not, in my view, corroborate Michael's account because little weight should be attached to it.
Michael seeks to sustain the existence of the promise by referring to a later statement by Tony made to his family conveying the effect of the promise. That account was denied by each of the other siblings. I accept their evidence in this respect.
The cross-claimant contented that the absence of provision for the promise in the 2003 wills (and the 2016 will) was not "relevant" as the promise was distinct from and did not depend for its operation upon any testamentary disposition.
It is true that one of Michael's assertions as to the terms of the promise did not require testamentary disposition. However, in the May 2018 affidavit, Michael stated that the promise incorporated, inter alia, the following: "get married and live with us till we both die, then it's yours".
In any event, in circumstances where Tony has died and Nouhad is incapable of giving evidence of their intentions, the 2003 will is relevant to show the intentions of Nouhad as at 2003 when not under or showing the effects of Alzheimer's-type dementia. Upon the succession of the property after 2004, Nouhad's intention as expressed in her will was inconsistent to the promise, even though the weight that may be attached to that consideration is reduced because it is directed at testamentary disposition. No weight can be placed on the 2013 will, to the extent it points against inferences that may be drawn from the 2003 will, given the insufficiency of any evidence led by the cross-claimant as to his mother's capacity when she made that will or whether appropriate steps were taken to make sure that the mother understood what was in the will she signed.
Thus, the cross-claimant's primary claim must fail. I note in that respect that counsel for the cross-claimant accepted that, if Michael's evidence was found unreliable, that the primary claim must fail.
There is a further consideration bearing upon the primary claim. I accept the submission by the first cross-defendant that in order for Nouhad to be legally obliged by the promise given by Tony in 1994, the cross-claimant must establish a personal equity enforceable against Nouhad. Further, I accept that no personal equity was enforceable against Nouhad for two reasons. First, as I have found, the promise did not take place. Secondly, the evidence does not suggest a conclusion that Nouhad expressly affirmed and agreed with any purported promise. On one version of the promise, Nouhad merely stated: "Please help us Michael". On another version, Nouhad is not recorded as making any observation - it is said Tony expressed the promise on behalf of Nouhad. The only other evidence was of a statement purportedly made by Nouhad in 2013, when she was afflicted with Alzheimer's-type dementia and, in the particular circumstances, where Michael took her to a solicitor to revise her will at the time Zouha had enduring power of attorney.

Reliance

In the light of the above finding, it is unnecessary to resolve the question of reliance, because there was no unperformed promise that invited the intervention of equity. There can be no expectation in the absence of a promise giving rise to an expectation.
However, some brief observations may be made as to the failure of the cross-claimant's reliance case. In order to do so, attention should first be given to the issues associated with the solicitor's bill and the loans or mortgages.
It is true, as I have found, that Michael paid the solicitor's bill. The preponderance of the evidence earlier set out in this judgment is that there was a renovation of the kitchen and that a new carpet and lighting were installed.
As to the financial arrangements that were entered into from 1994, the evidence discloses, having regard to the findings made as to Michael's credibility, the following: 1. A prior mortgage over the property to Westpac Bank was discharged, as proved by the documentary evidence. 2. There was no evidence as to the amount owing on the Westpac Bank loan upon its discharge. There was neither documentary evidence which detailed the amount owing, nor was the amount able to be inferred from the witness evidence which did not address this point. Michael did not provide that detail. His evidence was that an amount owing was $81,024 from the Arab Bank loan. Counsel for the cross-claimant asserted that the Westpac loan in 1994 had an amount owing of $40,000 but there is no evidence to support that submission. 3. A loan was taken out with the Arab Bank. Tony and Nouhad were listed as the mortgagors and Michael (together with Tony and Nouhad) was listed as the customer. This conclusion is supported by documentary evidence and the evidence that Michael's siblings learnt of that fact. 4. It was contended by the cross-claimant that the Arab Bank loan was for $90,000. However, he did not establish that fact as the evidence is consistent with a $50,000 loan for the following reasons: 1. The only evidence which supports the amount of $90,000 is that which comes from Michael. His evidence regarding the amount of the mortgage is entirely inconsistent. As I have found, he is not a witness of credit. 2. Further, Joseph, who I did consider to be a truthful and reliable witness and the only sibling of Michael to provide evidence on the amount of the Arab Bank loan, stated that the amount was not $90,000 but rather no more than $50,000. 3. The documentary evidence also fails to substantiate that the amount of money borrowed under the Arab Bank loan was $90,000. At its highest, the documentary evidence supports that $50,000 was borrowed. No part of the evidence leads to the inference that the $50,000 referred to in the mortgage document represents the up-stamping of prior loan to Westpac such that the total amount borrowed from Arab Bank was $90,000. 4. The figure of $90,000 is a construct by Michael deriving from the use to which the money was to be put. For reasons discussed below that evidence cannot be accepted. 1. Both Arze and Michael made repayments on the Arab Bank loan, but that the amount of these repayments is unable to be determined due to the lack of evidence. 2. Michael discharged the Arab Bank loan using some of the proceeds from his superannuation payment. The witness evidence is largely consistent in this respect. Furthermore, Michael withdrew the sum of $81,024 from his bank account at or about the time of the discharge of the mortgage. Counsel for the cross-claimant contended that the Court should draw an inference based on the proximity of the withdrawal and the discharge of the mortgage. However, I do not find that the entire sum of $81,024 was used to discharge the Arab Bank loan. Save for Michael's evidence, there was no direct evidence that the whole sum was paid. I have found above that the amount of the Arab Bank loan was not $90,000. It follows that the sum paid in discharge of the Arab Bank loan was not that amount. Further, there was no adequate explanation for the absence of evidence relating to the Arab Bank loan including evidence of repayments made between 1994 and 1998.
This brings forth consideration of the particular factors which would contribute to a rejection of Michael's case on reliance. Those factors are as follows: 1. Michael's evidence as to the use of the Arab Bank loan was inconsistent and predicated upon the existence of a $90,000 amount, which I have found was not available on the evidence. 2. It seems entirely unlikely that Tony and Nouhad would incorporate the obligation to renovate the property into a purported promise to Michael. Firstly, as mentioned previously, that proposition sits uncomfortably with the circumstances said to surround the making of the promise, namely, an emergency for Tony and Nouhad. Secondly, no evidence was proffered as to why Tony and Nouhad would be minded to undertake renovations in those circumstances. In fact, it is apparent on the evidence discussed earlier that, if anyone, Michael was the driver behind the renovations and a key beneficiary of them. 3. Similarly, the dominant purpose of the travel to Lebanon was, on the preponderance of the evidence, to provide a benefit to Michael (and Jim); that is, for them both to find wives and bring them to Australia in suitable accommodation. A direct correlative of this analysis is that a portion of the expenditure said to have been incurred by Michael was in relation to the weddings of himself and Jim. 4. Furthermore, on Michael's evidence, as summarised by the first cross-defendant at [72], Michael was very generous in using his money to assist his family. The first cross-defendant accepted that Michael had paid all recurring household bills in addition to being very generous with his money towards his parents. No plausible explanation is proffered as to why the payment of the solicitor's bill should represent a change in that practice. The existence of a purported emergency is just as likely to compel further generosity than an exchange resulting in a benefit. 5. Michael gave no evidence in his affidavits as to the acceptance of the promise, save for an unbelievable passage in his December affidavit in which he said: I excepted [sic] my parents['] offer, and by saying inter alia at the time: "Okay, we will obtain a loan and I will pay it off" 1. Michael's conduct after the alleged promise was inconsistent with a genuine belief in the promise. He made no note of the terms of the promise and he did not seek a copy of the 2003 wills to ensure they reflected the promise. 2. Notwithstanding the fact that there is evidence of Michael being financially generous to his parents, the evidence does not support dependence by the parents on Michael. Nor was there any reasonable basis for Michael having that belief. As mentioned, the assistance Michael gave with the solicitor's bill is not inconsistent with those prior acts of generosity and, in any event, the Arab Bank loan that he stated was taken to pay the solicitor's bill was ultimately obtained in the context of a mortgage taken by the parents when there was plainly equity in the property. Further, as I will discuss later, it is clear that the steps taken by Michael in late 1994 were designed to, on his own case, meet his own needs such as the renovations, weddings and trips to Lebanon.
For completeness I note the cross-claimant contended that his contributions made under the purported promise were akin to the primary relief sought and that departure from the promise would therefore be unconscionable. There are two difficulties with this submission. The first is the difficulties associated with his reliance case. The second is that the cross-claimant brought no evidence as to the value of the property as at 1994 or at any later time.

Conclusion: Primary Relief Refused

The primary relief sought is refused. The prayers for relief 1, 2 and 5 should be rejected.

Alternative Relief

As mentioned at the outset of this judgment the cross-claimant sought to defer the hearing of the claims appearing in prayers 3 and 4 of the cross-claim, which are described as alternative claims for relief.
That application occurred at the final day for the hearing of the matter. The issue had not been raised previously in the hearing of the matter. No application was made at the outset of the hearing for the disposition of the cross-claim to be in two parts. That course was opposed by the first cross-defendant.
The Court permitted the parties to make supplementary submissions in writing as to any legal authority bearing upon whether the cross-claimant may be permitted to pursue the alternative relief at "this stage" of the proceedings. In the result, the Court received written submissions from the cross-claimant and the first cross-defendant which are summarised at [59]-[62] and [81]-[83] respectively, above.
It would appear that, having regard to the authorities relied upon by the cross-claimant, the Court has power to grant the alternative prayers for relief. The merits of such claims is another matter and will no doubt be impacted by the findings made in this judgment.
There is a further question, whether the cross-claimant should be permitted to prosecute the alternative claims in the circumstances in which the alternative claims were pursued. The first cross-defendant amply described the issue by submitting that the Court should consider why, in the circumstances, the cross-claimant should be given an indulgence to advance supplementary submissions as to the alternative relief sought when he had not raised the prospect of that approach until the close of the proceedings. It was also submitted that the cross-claimant had failed to explain why he had chosen not to deal with the alternative relief until that stage of the proceedings.
Clearly, the application made by the cross-claimant needs to be viewed through the prism of ss 56 and 57 of the Civil Procedure Act. The first cross-defendant was entitled to rely in that respect on upon wastage of time and costs associated with the conduct of the proceedings by the first cross-defendant in this respect. Reference was made to the first cross-defendant's case being legal aid funded.
Those contentions by the first cross-defendant have some force. However, they need to be considered in the light of two additional factors. The first is that the cross-claimant has indicated that he did not envisage any further evidence being called in support of the alternative relief. Nor did the first cross-defendant envisage any further oral hearing. Further, the alternative claims will require consideration in the light of this judgment.

Conclusion: Alternative Relief

In my view, the balance of these issues in the interests of justice should be that the cross-claimant be permitted to prosecute the alternate forms of relief in prayers 3 and 4 provided that the following conditions apply to any further proceeding in that respect: 1. There should be no further evidence save by leave of the Court. The determination of the question of leave will be predicated on the concessions made by counsel for the cross-claimant on the final day of hearing of the matter. It may be noted that the first cross-defendant has not been heard as to any further evidence at this stage. 2. Submissions as to the alternative relief shall be in writing, save for leave of the Court to make oral submissions. Parties are at liberty to refer to further relevant authority bearing upon the alternative claims. 3. The prejudice to the first cross-defendant shall be met by orders for costs in relation to the alternative relief.

Costs

The costs of the hearing of the primary relief should be made in favour of the first cross-defendant. The costs of the alternative relief will ultimately be dealt with in the manner described above but for present purposes may be reserved, until the course of any further proceedings are finally known.

ORDERS

The Court makes the following orders: 1. The first cross-defendant shall bring in short minutes of order reflecting this judgment within seven days of the publication of this judgment. 2. The cross-claimant shall file and serve any written submissions in relation to the alternative relief in prayers 3 and 4 within 14 days of the publication of this judgment. Any application to adduce evidence or for an oral hearing should be made in those written submissions. If such an application is made it should be accompanied by submissions in support of the application together with, in the case of further evidence, the actual form of the evidence proposed to be led by the cross-claimant. 3. The first cross-defendant shall file and serve any submissions in reply on or before 14 days after the receipt of submissions pursuant to order (2) above. 4. In the event that any application for leave to lead further evidence, the Court will determine that question together with any application for a further oral hearing on the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2019

Trade Practices Act 1974(Cth)

THE PROMISE AS STIPULATED IN MICHAEL'S CASE

Counsel for Michael, Mr P R Glissan, stated that the relief sought by Michael was based on equitable estoppel and, in that respect, he relied upon a "representation as to [a] future matter, but… in the nature of a promise".
Notwithstanding that characterisation, counsel for the cross-claimant tended to employ the word "representation" to describe that which created the expectation relied upon by him which was said to be to his detriment (an approach mirrored by counsel for the first cross-defendant). The better approach, and one more consistent with an action predicated upon equitable estoppel is to refer to a "promise", being a voluntary promise about a speaker's future conduct: Equititrust Ltd v Franks (2009) 258 ALR 388; [2009] NSWCA 128 at [73] per Handley AJA. Michael's case was that there was an unperformed promise which was stipulated by his counsel as, based on his evidence, consisting of the components set out below. I shall hereinafter refer to that promise, so described and stipulated by counsel below, as "the promise".
Michael relied upon two formulations of the promise as expressed in Michael's evidence as discussed below both constituting one promise. The first formulation of the promise is to be found in his affidavit filed 28 December 2016 ("the December affidavit") (at [29]) and was in the following terms: My father said: "If you can help us by paying this debt and renovate the home we will give you half of the home and you can stay here until we die." (It may be noted that immediately following the passage Michael stated Nouhad said, "Please help us Michael").
Counsel for the cross-claimant also relied upon Michael's evidence of, as he put it, a "slightly more detailed formulation" of the promise which Michael included in his affidavit sworn 28 March 2017 ("the March 2017 affidavit") (at para 8). It should be noted that Michael also swore an affidavit on 13 April 2017 ("the April 2017 affidavit") in which the promise was expressed in identical terms (at para 10) to the March affidavit. Paragraph 8 of the March affidavit was as follows: 8. Shortly afterwards Mum and Dad had a conversation with me at the property in words to the effect: [Tony]: "Michael, if you pay Mum's legal costs to G. H. Healey & Co and pay the costs of renovating the house ("the renovation costs"), Mum and I will give you half the house, and you can live here with us until we both die." [Nouhad]: "Yes, Michael, can you please help us, otherwise my Solicitors could make me bankrupt, and then we'll lose the house."
The promise was said by counsel for the cross-claimant to be constituted by the statement made by Michael's father. In written submissions, counsel referred to the statement of "the same clear and unequivocal promise or assurance."
As mentioned, despite the differences as to the terms of the promise as expressed in the December affidavit and the March 2017 affidavit (or the April 2017 affidavit) above, Michael's counsel contended that his case was there was only one representation made on a single occurrence. Counsel for Michael also contended that the promise was made by Tony around September 1994 in the presence of Nouhad and with her express approval. Thus, the promise was, it was submitted, as much Nouhad's as it was Tony's, and Nouhad was personally - not vicariously - liable. The claim against her is not a derivative from Tony.
Michael's case was that there was created an "expectation" by the promise with no precise indication as to when the expectation would be fulfilled. The representation did not depend upon the operation of a will.
It may be observed, at this juncture, that Michael gave evidence-in-chief and under cross-examination as to the promise that was inconsistent; both as to the circumstances in which the representation was given and as to the contents of the promise. The inconsistencies were also both internal in the sense of the viva voce evidence before this Court being inconsistent, and inconsistent with the stated form of the promise as conveyed by his counsel by reference to his affidavit evidence.
Further, Michael gave evidence that at a time later to the giving of the promise, Tony indicated that he had given Michael half of the house in the presence of Michael and all of his siblings. This was disputed by Michael's siblings. I will return to these issues in more detail below.
Counsel for Michael also contended that Tony and Nouhad were registered proprietors of the family home as joint tenants and that, on Tony's death, the ownership of the home passed by survivorship to Nouhad. It was contended that Michael's "legal half-share of the home passed by survivorship to Nouhad but that Nouhad denied the beneficial half-share of the home". Justice required, it was submitted, that Nouhad be estopped from denying the correctness of the expectations created by the promise in order to prevent Michael from suffering detriment as a result of him having relied upon the promise by paying the legal costs and repaying the Arab Bank loan he had taken out.
It was further contended by counsel for Michael that the significance of Nouhad's successorship to Tony's legal half-share of the home was that his half-share can be traced into Nouhad's present legal ownership, resulting in there being no impediment to the Court granting relief to Michael by way of proprietary constructive trust, contrary to the position that would have arisen if the home had been sold to a third party purchaser for value without notice of Michael's estoppel-based claim to equitable relief. This issue of successorship will be addressed further below, however, for present purposes, the cross-claimant's case was that the right under the promise materialised where there was a departure from the promise. The lapsing notice represented such a departure, that is, an action to lapse the caveat in circumstances where there was no present intention to sell the property, but merely a claimed caveatable interest.
On the other hand, the first cross-defendant contended that, even if Tony made the promise, no personal equity attached to Nouhad as there was no evidence of express approval and agreement as to the promise by her.

LEGAL PRINCIPLES

The relevant legal principles in relation to equitable estoppel and constructive trusts was recently discussed by Sackar J in Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 ("Zupicic") at [67]-[75] as follows: [67] The general nature of constructive trusts and equitable estoppel was set out by Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101 at 111-2; [1999] HCA 10 as follows (citations omitted): In submissions to this Court, the term "constructive trust" was used to identify the nature of the equitable remedy granted by the Full Court. Care is required in the use of the term "constructive" in this context. Professor Scott has pointed out: "It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court 'constructs a trust'. The expression is, of course, absurd. The word 'constructive' is derived from the verb 'construe', not from the verb 'construct' ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them." The relief granted by the Full Court involved a trust that was "constructive" in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent's equity by bringing about a subdivision of the promised lot and conveying the title to it. The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the promised lot, to convey it to the respondent. A constructive trust of this nature is a remedial response to the claim to equitable intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the property in question, thereby bringing about a determination of the rights and titles of the parties. [68] Importantly for the purposes of this case, their Honours noted (at 113-4) (citations omitted): The present case fell within the category identified by the Privy Council in Plimmer v Mayor, &c, of Wellington where "the Court must look at the circumstances in each case to decide in what way the equity can be satisfied". Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust. At the heart of this appeal is the question whether the relief granted by the Full Court was appropriate and whether sufficient weight was given by the Full Court to the various factors to be taken into account, including the impact upon relevant third parties, in determining the nature and quantum of the equitable relief to be granted. [69] In Giumelli v Giumelli (1999) 196 CLR 101 at 121; [1999] HCA 10, their Honours also observed with approval McPherson J's analysis in Riches v Hogben [1985] 2 Qd R 292 at 301 of the distinction between equitable principles and the enforcement of contractual obligations: What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise. If there is such a promise, then the plaintiff must resort to the law of contract in order to enforce it, it being the function of equity to supplement the law not to replace it. The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates … Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff's part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise. [70] See also generally Muschinski v Dodds (1985) 160 CLR 583 at 614-20; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137 at 146-8; [1987] HCA 59. [71] In Sidhu v Van Dyke (2014) 251 CLR 505 at 511; [2014] HCA 19, French CJ, Kiefel, Bell and Keane JJ observed (citations omitted): In The Commonwealth v Verwayen, Mason CJ described estoppel as "a label which covers a complex array of rules spanning various categories". His Honour went on to say of "titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence" that they are all "intended to serve the same fundamental purpose, namely 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted'". In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn and Ramsden v Dyson is now a "well recognised variety of estoppel as understood in equity", which affords relief "found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff". The questions which arise in this appeal concern the sufficiency of proof of detrimental reliance required to give rise to a sound claim for relief based on that category of estoppel; and the appropriate measure of equitable compensation where an order for the transfer of the property in question to the plaintiff is not made for reasons of hardship to a third party. [72] Further in Sidhu v Van Dyke (2014) 251 CLR 505 at 521-4; [2014] HCA 19 their Honours also made it clear that there is no relationship that establishes a presumption of reliance (citations omitted): The respondent sought to neutralise the appellant's first submission by arguing that, in this case, the Court of Appeal did no more than apply what Brooking JA described in Flinn v Flinn as a "commonsense and rebuttable presumption of fact that may arise from the natural tendency of a promise". This argument must be rejected. The observations by Brooking JA in Flinn v Flinn do not support the proposition accepted by Barrett JA that "[w]here inducement by the promise may be inferred from the claimant's conduct … the onus or burden of proof shifts to the defendant to establish that the claimant did not rely on the promise". In Newbon v City Mutual Life Assurance Society Ltd, Rich, Dixon and Evatt JJ, speaking of a case where the party setting up the estoppel asserted a failure to take action in reliance upon an assumption allegedly induced by the conduct of the defendant, said: "Where inaction is the natural consequence of the assumption, the prima facie inference may be drawn in favour of the causal connection … Any general presumptive connection between inaction and a belief in a state of facts must depend upon probabilities which arise from the common course of affairs, and accordingly must be governed by circumstances." In Gould v Vaggelas, Wilson J, with whom Gibbs and Dawson JJ agreed, speaking of an action in deceit, said: "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation." It is apparent that in the passage cited from the plurality judgment in Newbon v City Mutual Life Assurance Society Ltd, their Honours were speaking of a "presumptive connection" as the equivalent of the "fair inference" of which Wilson J spoke. In Gould v Vaggelas, Brennan J said: "An inference of inducement may be drawn when a party enters into a contract after a material representation has been made to him, but it is no more than an inference of fact and it is settled law that such an inference may be rebutted by the facts of the case." Nothing in the judgments in Gould v Vaggelas suggests that the onus of proof in relation to detrimental reliance shifts to the defendant in any circumstances. … In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that: "It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise." … Be that as it may, this aspect of the appellant's submission must be accepted. The approach suggested by Lord Denning should not be applied in Australia. The legal burden of proof borne by a plaintiff did not shift. To speak of a shifting onus of proof is both wrong in principle and contrary to authority. The respondent at all times bore the legal burden of proving that she had been induced to rely upon the appellant's promises. … The real question was as to the appropriate inference to be drawn from the whole of the evidence, including the answers elicited from the respondent in the course of cross-examination. In that regard, as was said by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Ltd, consideration of the application of the process of reasoning adumbrated by Wilson J in Gould v Vaggelas "must always attend closely to all of the evidence that is adduced that bears upon the question being examined". [73] Their Honours also noted (at 526-8): Her Honour's finding that the appellant's promises "played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property" warranted the conclusion that the respondent had discharged the onus she bore on the basis that to establish estoppel by encouragement it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. Counsel for the appellant disputed this proposition but did not cite any authority in support of their position. The respondent's position is amply supported by authority. … This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created. The extent to which it is unconscionable of the appellant to seek to resile from the position expressed in his assurances to the respondent may be gauged by reflecting on the likely response of the respondent if the appellant had told her in January 1998: "I am happy for you to remain at Oaks Cottage, but only for so long as it suits me and my wife to have you here; and, while you remain on the property, you must care for it as if you were the owner of the property and do unpaid work on parts of Burra Station other than the property. Until I make the property over to you, you must pay rent sufficient to content my wife. Should you choose to leave, you will leave with nothing in return for the value of your work here." [74] With respect to the nature of relief granted by equitable estoppel, in Sidhu v Van Dyke 251 CLR 505 at 529; [2014] HCA 19, their Honours said (citations omitted): In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced. The requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief. In The Commonwealth v Verwayen, Deane J noted that: "There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party." [75] In the same case Gageler J observed (at 531) (citations omitted): Paraphrasing Dixon J in Thompson v Palmer, the respondent bore the onus of establishing that she believed the appellant's representations and that, on the faith of that belief, she took a course of action or inaction which would turn out to be to her detriment were the appellant to be permitted to depart from those representations. The respondent did not need to establish that the belief to which she was induced by the appellant's representations was the sole or predominant cause of the course of action or inaction she took but, in the language of Rich, Dixon and Evatt JJ in Newbon v City Mutual Life Assurance Society Ltd, she did need to establish that the belief was a "contributing cause". To establish that the belief to which she was induced by the appellant's representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief. The need for the respondent to establish such a difference stems from what Dixon J described in Grundt v Great Boulder Pty Gold Mines Ltd as the "indispensable" condition that a party asserting an estoppel "must have so acted or abstained from acting upon the footing of the state of affairs assumed" that the party asserting the estoppel "would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption". That is to say, "the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted". There can be no real detriment if the party asserting the estoppel would have been in the same position in any event. The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: "Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?"

Alternative Relief

The principal issue, with respect to alternative relief, is whether Michael should be permitted to prosecute his alternative claims after the determination of the primary claim.
It was submitted that the alternative claim of beneficial co-ownership of the property in such proportions as may be found by the Court, could be made on the basis of a tenancy in common. It was submitted that claims for alternative relief to a constructive trust could be made in these proceedings in light of the following authorities: 1. In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 ("Giumelli"), the High Court unanimously decided that relief by way of proprietary constructive trust granted by the Full Court of the Supreme Court of Western Australia, on the facts of that case, exceeded what justice required. Thus, the High Court found relief by way of payment of a money sum should be granted. Accordingly, the High Court set aside the orders of the Full Court below and remitted the matter to a Judge of the Supreme Court to determine a sum to be payable by the appellants to the respondent representing the present value of the unsubdivided lot of land on the appellants' rural property which they had promised to the respondent, "upon such further evidence as that Court may allow", such sum to be then charged upon the whole of the rural property, with interest to be fixed by the Court. 2. In Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ made the following observations and findings: 1. Their Honour's described the constructive trust granted by the Full Court below as "a remedial response to the claim to equitable intervention made out by the plaintiff" (at [3]). 2. Their Honours continued, "...the equity which founded the relief obtained was found in an assumption as to future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well-recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant" (at [6]). 3. Their Honours also said, however, "Before a constructive trust is imposed, the court should first decide whether having regard to the issues in the litigation there is an appropriate equitable remedy which falls short of the imposition of a trust" (at [10]). 4. In the result, their Honours decided that payment of a money sum representing the value of the promised lot, to be charged upon the whole of the rural properly, with interest to be fixed by the Court, was the appropriate remedy. 1. In Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (at [200]), Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said: [200] Ordinarily relief by way of constructive trust is imposed only if some other remedy is not suitable. In the present circumstances, what other remedy applied would depend on an election by Say-Dee between equitable compensation (which Say-Dee requested in the amended cross-claim) or an account of profits (which it did not). 1. In Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44 (at [1]), Gummow, Hayne, Heydon, Kiefel and Bell JJ drew attention to "the cardinal principle of equity that the remedy must he fashioned to fit the nature of the case and the particular facts". 2. In Sidhu v Van Dyke, a proprietary estoppel case, the High Court dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales that the appellant pay the respondent equitable compensation, the quantum of which was to be determined by a judge at first instance after remittal to the Equity Division.

Succession

The first cross-defendant submitted that in order for Nouhad to be affected by the promise given by Tony in 1994, the cross-claimant must establish a personal equity enforceable against Nouhad. With respect to this, the first cross-defendant referred to Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 at [13]-[14], which is now extracted: [13] The judge's consideration of the proprietary estoppel claim started by recognising that the Testatrix was a registered proprietor of Real Property Act land, against whom no allegation of fraud was made, and concerning whom none of the exceptions to indefeasibility set out in section 42(1) Real Property Act applied. Thus, it was only by establishing that the Testatrix was subject to a personal equity that the proprietary estoppel claim could succeed. The judge said, at [15]: "It is not enough that a party claiming, as Glen does, an equitable interest or an equity in Lot 12 should establish some entitlement against Geoffrey and his estate; it is necessary to establish a personal equity enforceable in her lifetime against the testatrix as registered proprietor." The correctness of that legal analysis is not in dispute in this appeal. [14] The judge accepted at [34] that if Glen's evidence about what Geoffrey said to him at its most favourable passages, were accepted in full, that would provide an arguable case of proprietary estoppel against Geoffrey. However, as the judge observed at [35]: "…there is no corresponding case against the testatrix and her estate. There is no claim that she ever gave Glen any promise or assurance that he would be treated as or would become the owner of Lot 12, the only relevant things that she ever did were to transmit title to her own name, make a will which did not give Glen Lot 12, and let him stay on Lot 12 and do what he liked without intervention by her, while she paid the rates and did not ask for rent or any other contribution from him. This is an unremarkable indulgence by an elderly mother towards her youngest son who was not doing much to make his way in the world, had no trade, had no significant property and liked to occupy himself, over many years, with work on the cottage on Lot 12 which never seemed to come to an end."
The first cross-defendant submitted that no personal equity was enforceable against Nouhad for the reason that the Court could not be satisfied that the promise took place at all or in the terms alleged, as previously discussed. The first cross-defendant further submitted that, even if Tony made the promise, the Court could not be satisfied that Nouhad expressly approved and agreed with the promise, thereby resulting in a personal equity attaching to Nouhad.

At a glance

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Judgment (51 paragraphs)

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