Awad v Awad

Introduction

1. 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.
2. 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

1. 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).
2. All of the witnesses were required for cross-examination.

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

1. Tony and Nouhad migrated to Australia from Lebanon in 1963.
2. 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.
3. In or around 1990, Nouhad had an accident at work, which resulted in a workers' compensation application that was unsuccessful ("the unsuccessful application").
4. 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.
5. 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").
6. These issues will be discussed in detail below.
7. 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…".
8. The promise was said to have been made around September 1994.
9. In September 1994, Michael was in permanent employment with Amcor Paper Ltd as a Supervisor earning about $70,000 per annum.
10. 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").

PARTICULAR EVIDENCE AS TO THE PROMISE AND SURROUNDING CIRCUMSTANCES

The first issue

1. 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.
2. 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.
3. 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.
4. 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.
5. However, it was later conceded by the first cross-defendant that a $28,000 bill arose.
6. 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.

The second issue

1. 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".
2. 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.
3. It was not put to Paul that there was a demand contained within the solicitor's bill.
4. 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.
5. 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

1. As discussed above, it was Michael's submission that his promise to pay the solicitor's bill formed part of the promise.
2. 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.
3. 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

1. 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.
2. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Evidence as to the Promise

1. 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

1. 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"
2. As previously mentioned, the second paragraph of that extract of his affidavit was relied upon by counsel as constituting the promise, together, by succession.
3. 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).
4. 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.
5. 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.

Jim's Evidence

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

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

1. 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

1. 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."
2. 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

1. 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."
2. 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.
3. 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.
4. 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.
5. 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.

The Evidence of Jim

1. 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.
2. 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

1. 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.
2. 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

1. 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.
2. 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

1. 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.
2. 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.
3. 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.
4. 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

1. 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").
2. 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.
3. 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").
4. 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.
5. 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.
6. 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

1. 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

1. 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.
2. 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?"
3. 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".
4. 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.
5. 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.

The Evidence of Arze

1. 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."
2. Arze did not provide evidence in relation to the mortgage in examination-in-chief.
3. 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

1. 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".
2. However, Jim provided no further detail as to this borrowing, nor did he clarify what "Michael's debt" was.
3. Jim did not provide evidence in relation to the mortgage in examination-in-chief.
4. 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.
5. 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.
6. Jim provided no further details in this respect.

The Evidence of Joseph

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The Evidence of Paul

1. 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.
2. 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.
3. That was the extent of Paul's evidence in that regard.

The Evidence of Zouha

1. Zouha did not refer to the 1994 mortgage in her affidavit evidence, nor did she give evidence in examination-in-chief.
2. 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.
3. 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.
4. 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.

Michael's Case

1. 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".
2. 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".
3. 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.
4. 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

1. 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

1. 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.
2. 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".
3. 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.
4. 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.
5. The specific evidence of the siblings in relation to the renovations will now be set out.
6. 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.

The Evidence of Michael

1. 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.
2. 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].
3. 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".
4. 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].
5. 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…".
6. 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).
7. 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.

The Evidence of Arze

1. 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.
2. 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

1. Jim did not provide evidence in relation to the discharge in his affidavit.
2. 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.
3. 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

1. Joseph did not provide evidence in relation to the discharge in his affidavit.
2. 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

1. Paul did not provide evidence in relation to the discharge in his March affidavit.
2. 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.
3. Yet the amount that was allegedly repaid is unable to be firmly determined.

The Evidence of Zouha

1. Zouha did not provide evidence in relation to the discharge in either of her March 2018 affidavits.
2. 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

1. 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

1. 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.
2. 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.
3. 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.
4. 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;
5. 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.
6. 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.

The 2013 will

1. 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.
2. 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."
3. 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.

The 2016 will

1. 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

1. 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.
2. 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.
3. 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.

Credit of Arze

1. 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.
2. 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

1. 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

1. 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

1. 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.
2. In my view, Michael has not discharged that onus.
3. 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.
4. 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.
5. 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.
6. 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".
7. 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.

Reliance

1. 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.
2. 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.
3. 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.
4. 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.

Conclusion: Primary Relief Refused

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

Alternative Relief

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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

1. 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

1. 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

1. 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