Awad v Awad

Supreme Court of NSW|2020-01-30|Before: Walton J

Solicitors: Ivy Law Group (Cross-Claimant and Second Cross-Defendant) Prominent Lawyers (First Cross-Defendant) File Number(s): 2016/278389

Judgment

HIS HONOUR: By a cross-claim filed 24 May 2017 ("the cross-claim"), the cross-claimant Michael Awad ("Michael") sought, inter alia, a declaration that he had a beneficial one-half interest in the property at Bexley in the State of New South Wales ("the property") owned by his mother, the first cross-defendant, Nouhad Awad ("Nouhad").

THE ALTERNATIVE CLAIM

Claims for relief 3, 4 and 9 were advanced as alternative claims ("the alternative claims"). Michael made opening and closing submissions during the hearing, albeit briefly, in that respect.
In opening submissions made on 14 May 2018 ("the opening submissions"), counsel for Michael submitted: There are alternative claims but I won't take your Honour to those alternative claims, at this stage, in the confident hope and expectation if I can put it that high, that the primary claims for relief will succeed. However, if it becomes necessary, there are alternative claims for an inquiry into amounts paid and an alternative declaration as to constructive trust; or alternatively to that equitable damages. But we won't need to deal with those, I would think, until the end of the case. I would think that the matter should, in my submission, should proceed essentially as on the basis of the claims for principal relief.
As to closing submissions, the following exchange with counsel for Michael and Nouhad regarding the prayers for relief 3 and 4 ("the closing oral submissions") occurred: HIS HONOUR: Really the inquiry I am making at this stage is how it would be proposed that that would be done. Let us assume because it is the only circumstance in which this arises, so I will postulate it in this way. Let us assume you lose the parts of the claim you are presently pressing, because the other way, as you say, would probably make the alternative relief unnecessary if you win. GLISSAN: Yes, that's right. HIS HONOUR: Then how do you say the matter would go forward in those circumstances? GLISSAN: We would go forward on submissions. I don't think there would be need to be any further hearing. I think the evidence is complete as far as it can go. But there would have to be submissions directed to the question of payments. There would have to be some projections as to how much was paid for interest and that sort of thing. There would have to be some attention given to the question of the value of the property at the time, even though there is no valuation evidence. It is impossible really to obtain valuation evidence, in my submission, 20 years down the track. There would have to be some way of trying to assess what about by way of restitution, in effect, should be awarded to the cross claimant and how it should be secured, if at all, if secured at all, but how should it be secured. A usual way is equitable lien. HIS HONOUR: Yes, but I am not really probing so much the subject matter of the case as to whether it is viable, that is, whether the procedure that you have proposed is viable. It would be viable, I suppose, if there were no evidence required for the prosecution of those held over matters. GLISSAN: There is no further evidence that I can envisage. I can't envisage any further evidence because there is no bank records that can be produced. The subpoena to Arab Bank has been answered with no documents and that is an exhibit in the case. My client doesn't have any documents. Nobody else has produced any documents, and that is not surprising, given the passage of time. There is some evidence in the case about interest rate and term of loan HIS HONOUR: I'm sorry to interrupt you again. GLISSAN: That is all right. HIS HONOUR: But this is just a procedural issue and it seems to me that if you elect to call no further evidence in relation to those matters held over, then, subject to anything your opponent says, I can see that to be an approach that is viable. If you say, "Look, we keep in reserve the prospect of doing so", then there has to be a real question about the approach. GLISSAN: I will need to formally get instructions but - HIS HONOUR: Of course, the evidence is closed. GLISSAN: That's right. As counsel, my view is there can't be any more evidence. I can't think of any evidence that could be called. But I will formally get instructions. HIS HONOUR: We can come back to that. GLISSAN: We will come back to it but my view is there is no further evidence. … [WILLIAMS [1] ]: Yes, your Honour. There's no evidence as to the value of the property. In relation to the alternative relief sought by my friend, I dispute this matter going on any further. … GLISSAN: First of all, there will be no further evidence in answer to your Honour's question earlier. In reply - HIS HONOUR: Does it follow however, that it would be appropriate to enable the case to be split in the manner that you have proposed? GLISSAN: If it's just a matter of submissions, that shouldn't be a difficulty for the court or my learned friend, in my submission. You have as a document before you by way of submission HIS HONOUR: How do I resolve that if your opponent is saying that it's unclear at the moment whether evidence would or would not be required? GLISSAN: Because I'm saying we're not putting on any more evidence. That's why. HIS HONOUR: That doesn't stop them meeting the case on that basis, on the basis of evidence. GLISSAN: I don't know whether my friend is saying she wants to put on evidence or not. If she wanted to put on evidence, she should have put it on. We are not putting on any more evidence.
Following the closing oral submissions, the parties filed, by leave of the Court, supplementary written submissions: Michael filed supplementary written submissions dated 21 June 2018 ("the supplementary written submissions"). The submissions of Michael, in that respect, were summarised in Awad No 1 and extracted at [24(1)] below in the extract of relevant elements of Awad No 1 in the next heading of this judgment.
In accordance with the directions of the Court in Awad No 1 (as later amended by the Court), Michael filed further written submissions dated 6 May 2019 ("the further supplementary submissions for Michael"). Counsel for Nouhad filed submissions pursuant to those directions on 3 June 2019 ("the further supplementary submissions for Nouhad").
In the further supplementary submissions for Michael, leave was sought to adduce expert evidence, inconsistently with the contention by counsel for Michael in the closing oral submissions.
In the result, the Court listed the matter for directions on 30 July 2019 during which submissions were made by the parties as to the further programing of the matter (see the heading "The Directions Hearing" below). As will be discussed below, the parties agreed that the Court should, without further oral hearing, determine certain preliminary questions raised by counsel for Nouhad (which were described as threshold issues at the directions hearing), provided counsel for Michael could file submissions in reply. That leave was given to Michael and the submissions in reply were filed on 8 August 2019 ("the reply submissions for Michael").
The preliminary issues were described as "threshold issues" because they concerned issues ventilated by counsel for Nouhad, which were broadly of that nature, namely, whether the alternative claims based upon a common intention constructive trust or joint endeavour constructive trust fell outside the pleadings, the nature of the alternative claim for relief, whether there was an absence of evidence to support the basis for the alternative claim (and whether the bases relied upon to establish the trusts were contrary to findings made by the Court in Awad No 1) and whether the Court should refuse leave for Michael to adduce the expert evidence said to bear upon the alternative claim (they shall hereinafter be referred to as the "threshold issues"). Broadly speaking, those contentions advanced by Nouhad with respect to the threshold issues were threefold, were as follows: 1. The claim by Michael upon the basis of a common intention constructive trust or alternatively a joint endeavour between Michael, his father and Nouhad fell outside Michael's pleaded case. Nouhad had not been put on notice as to the nature of the case which it had to defend. 2. There was no evidence before the Court that would sustain a finding of a common intention constructive trust. Further, the findings of the Court in Awad No 1 were inconsistent with any such finding. Similarly, the joint endeavour constructive trust, as framed, must fail because it cannot be established by Michael due to deficiencies in the evidence supporting such a claim and contrary findings, as to relevant elements, made by the Court in Awad No 1. 3. As the claim for relief based on a constructive trust is "hopeless", there can be no proper basis to present evidence to be adduced in support of the claim plus there are further reasons bearing upon the Court's discretion to refuse such a course (later discussed in this judgment).
This judgment concerns those threshold issues.

The Primary Relief

The findings of the Court in Awad No 1 as to the primary claim for relief, which are presently relevant, were as follows: 1. As to the nature of the primary claim for relief the Court found at [26] and [27]: [26] 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". [27] 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". 1. As to the applicable legal principles with respect to the basis for the primary claim, the Court observed at [38] and [39] as follows: [38] 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?" [39] Counsel for Michael also relied upon Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 ("Waltons Stores") at 428-429 as follows: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiffs action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiffs reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. 1. Michael made six contentions in support of the primary claim set out at [44]: (1) In 1994, Michael expected that Tony and Nouhad would give to him a beneficial one-half interest in the property if he paid legal costs of $28,000, which G H Healey & Co were then demanding Nouhad pay within 28 days, and the costs of renovations to the property (including the installation of a new kitchen and other renovations). Tony and Nouhad were not free to withdraw from that expected relationship (of co-ownership) ("the first contention"). (2) Tony and Nouhad induced Michael to adopt that expectation, by making the promise ("the second contention"). (3) Michael acted in reliance on that expectation by paying the legal costs and the costs of the renovations (utilising the Arab Bank loan of $90,000 from Arab Bank, which he repaid in full, with interest) ("the third contention"). (4) Tony and Nouhad knew or intended Michael to so act ("the fourth contention"). (5) Michael's action will occasion detriment if the expectation is not fulfilled ("the fifth contention"). (6) Following Tony's death and the passing of the property to her by survivorship, Nouhad has failed to act to avoid the detriment by fulfilling the expectation by applying to lapse the Caveat and by defending this cross-claim ("the sixth contention"). 1. The basis for the contentions were developed by Michael and are described at [45]-[56] as follows: The first and second contention [45] As to the first two contentions, Michael relied upon the following: (1) Tony and Nouhad were registered proprietors of the property; (2) A $28,000 legal cost liability arose; (3) Tony, in Nouhad's presence made a promise to Michael that if he paid the legal costs and renovated the property, he would be given half of the house; (4) Michael, in reliance on the promise, paid the legal costs and renovated the property using funds from the Arab Bank loan; (5) Michael made repayments on the Arab Bank loan and subsequently repaid it using a "Total Permanent Disability" payout. [46] It was also submitted in reply that Arze's evidence corroborated Michael's evidence in respect of the promise. Further, it was contended that both Michael and Arze were truthful and reliable witnesses. [47] It was submitted that evidence given by Michael's siblings that they were not told of the promise has little weight in determining whether the promise did in fact occur. [48] It was submitted that the absence of provision for the promise in the 2003 and 2016 wills was not relevant as the promise's existence was distinct from any testamentary disposition. The same was said of the 2013 will. The third and fourth contention [49] As to the third and fourth contentions, counsel for the cross-claimant put the following submissions: (1) The solicitor's letter of demand constituted an emergency for Tony and Nouhad. If legal action was brought to recover the $28,000, Tony and Nouhad could lose the house. (2) Further, Tony and Nouhad depended upon Michael to borrow and repay funds in order to repay the legal costs and to renovate the property. By 1994, both Tony and Nouhad were retired pensioners: Tony was aged 67 years, retired and an aged pensioner; and Nouhad was aged 58 years and had stopped work as a result of the work accident in 1990. Meanwhile, Michael was, at that time, employed. He earned $70,000 per annum. Joseph was also approached for help in the matter of paying the $28,000 but he was unable to assist as he had a mortgage of his own at that time. (3) Michael had to consider whether he was going to undertake the expenditure for a long time before committing, indicating a reliance on the promise. (4) The expenditure by Michael was aligned with the terms of the promise. Michael paid the $28,000 legal costs, borrowed $90,000 from Arab Bank to finance the cost of the renovations, made repayments on the Arab Bank loan and subsequently paid off the Arab Bank loan using his Total Permanent Disability payout. As will be discussed below, the documentary evidence relating to the Arab Bank loan only shows that stamp duty was paid on an amount of $50,000. It was the submission of the cross-claimant that this $50,000 amount represented an up-stamping and that the total amount borrowed was therefore $90,000. [50] The payment of the legal fees by Michael was evidenced by the affidavit of Arze dated 23 February 2017 ("Arze's affidavit"), which corroborated Michael's March 2017 affidavit. Additionally, the oral evidence of Paul corroborated Michael's oral evidence. (The lack of primary documentation could be attributed to the passage of time in addition to Michael's 1996 work accident and the fact that Michael lived mostly overseas from 2000-2012. [51] The submissions that Michael took out the Arab Bank loan was supported by the Arab Bank Mortgage document, which listed Michael as a customer and the "Land and Property Information New South Wales Historical Search" of 23 December 2016 on the property ("the property title search") which also listed a mortgage having been granted on 27 September 1994. That was in addition to the consistent evidence of Michael, Paul, Jim and Zouha. It was submitted, however, that Arab Bank records could not be located due to the passage of time. [52] That the renovations occurred was supported by the evidence of Michael's siblings in cross-examination, which will be detailed below. [53] The repayment of the Arab Bank loan by Michael was evidenced by the bank statements of Michael displaying a withdrawal of $81,024, a historical title search showing the discharge of a mortgage on 13 May 1998 and the affidavit of Arze dated 23 Feb 2017, which was consistent with Michael's account, and the consistent oral evidence between Arze, Michael, and Paul. [54] Finally, it was submitted that, in this context, the expenditure by Michael was self-evident of reliance upon the promise. In reply, it was argued that the expenditure was much more substantial and was in a completely different nature to Michael's usual gratuitous expenditure to family members. The fifth contention [55] Turning to the fifth contention. In reply, it was submitted that despite Michael living rent-free in the property from 1978-2000, Michael did provide full consideration by paying all recurring household bills and by being very generous with his money towards his parents. Thus, it was submitted, it would be unconscionable to depart from the promise, as the amount expended then (said to be the $28,000 legal fees plus the $90,000 loan) was commensurate to half the value of the property. It was submitted that $90,000 in 1994 was worth $800,000 at the time of proceedings. The sixth contention [56] As to the sixth contention, it was agreed by both the cross-claimant and the first cross-defendant that following Tony's death, the property passed to Nouhad by survivorship. It was also not contested that Nouhad failed to act to avoid the detriment by fulfilling the expectation, by applying to lapse the caveat and by defending the cross-claim. 1. As to background, the Court found at [107]: [107] In April 2004, Tony died of a heart attack, aged 77. Upon Tony's death, the property passed to Nouhad by survivorship. 1. As to the credit of Michael, the Court found, inter alia, (at [367]) as follows: [367] 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. 1. As to the promise underpinning the primary claim, the Court found at [372]-[374] and [378]-[380]: [372] 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. [373] In my view, Michael has not discharged that onus. [374] 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. … [378] 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. [379] 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. [380] 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. 1. As to reliance, the Court found at [381]: [381] 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. 1. Some observations were made about the reliance claim as follows (at [382]-[386]): [382] 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. [383] 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. [384] 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: (a) 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. (b) 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. (c) 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. (d) 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. (5) 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. (6) 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. [385] 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" (6) 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. (7) 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. [386] 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.

The Alternative Relief

The following findings of the Court as to the alternative claim are relevant to the disposition of the threshold issues: 1. The Court commenced discussion of the claim for alternative relief at [59]-[62] and [81]-[83] as follows: [59] 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. [60] 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: (a) 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]). (b) 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]). (c) 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]). (d) 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. (3) 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). (4) 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". (5) 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. [61] It was submitted by the cross-claimant that those authorities showed that alternative claims for relief in cases such as the present are not only made but often need to be determined after further enquiry and hearing. [62] It may also be noted, it was submitted, that no further evidence was envisaged by the cross-claimant in order to advance the alternative claims. … [81] The first cross-defendant submitted that the cases referred to by the cross-claimant, in this respect, did not establish why, in the circumstances, the cross-claimant should be given an indulgence to prepare supplementary submissions on alternative relief. The first cross-defendant submitted that the cross-claimant failed to explain why he chose not to deal with the issue of alternative relief, either orally or in writing, when he had the opportunity. The first cross-defendant submitted that the fact that the alternative relief sought by the cross-claimant was dependent upon the first cross-defendant's estoppel case being rejected does not provide a basis for an indulgence to prepare supplementary submissions on alternative relief. [82] It was submitted that, in any event, in all the circumstances, for such an indulgence to be granted was inconsistent with the Court's obligations under ss 56 and 57 of the Civil Procedure Act 2005 (NSW). It was contended that the cross-claimant had ample opportunity to prepare submissions on alternative relief in closing written submissions. It was further contended, that neither an explanation or a sufficient explanation for the cross-claimant's failure to address those matters had been proffered. The matter was listed for one day for oral closing submissions, and only took half a day. The matter of alternative relief could easily have been addressed orally that day. [83] Finally, it was submitted that the first cross-defendant's case had been legal aid funded. Thus, it was contended that the first cross-defendant would be put to further cost if it were required to engage counsel to prepare supplementary substantive submissions on equitable relief and attend court again in relation to those submissions. Moreover, it was advanced that that course would further protract the course of these proceedings. 1. The Court then further turned to the alternative relief, dealing firstly with some preliminary considerations (at [388]-[394]): [388] 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. [389] 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. [390] 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. [391] 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. [392] 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. [393] 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. [394] 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. 1. The conclusions of the Court as to the alternative claim were in the following terms (at [395]): [395] 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.
The Court made orders in Awad No 1 as follows (at [397]): [397] 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.

FURTHER SUPPLEMENTARY SUBMISSIONS FOR MICHAEL

As earlier mentioned, in accordance with the orders of the Court (see Awad No 1 at [397(2)]-[397(4)]), Michael filed submissions as to alternative relief.

Support drawn from Awad No 1

Counsel for Michael relied upon various aspects of the judgment in Awad No 1 in support of contentions in support of the alternative relief as follows: Findings supporting claim for alternative relief 3. The following findings of the Court are relied on in support of the claim for alternative relief: (a) in September 1973 Tony and Nouhad purchased and became registered proprietors as joint tenants of the subject property (1A Campbell Street, Bexley) ("the property") - [89]; (b) in or around 1990 Nouhad had an accident at work which resulted in a worker's compensation application by her that was unsuccessful - [90]; (c) by September 1994 Tony and Nouhad were aged pensioners - [91]; (d) in 1994 Nouhad received a solicitor's bill for legal costs of $28,000 ("the solicitor's bill") as a result of her unsuccessful worker's compensation application - [92]; (e) there was no dispute that Nouhad was liable for $28,000 - [92]; (f) in September 1994 Michael was in permanent employment with Amcor Paper Ltd as a Supervisor earning about $70,000 per annum - [96]; (g) on 12 September 1994 a discharge of a mortgage over the property to Westpac Bank was executed - [248]; (h) on 27 September 1994 that discharge was registered on the title - [97] & [247(1)]; (i) on the same day a mortgage to Arab Bank was registered on the title - [98] & [247(2)]; (j) the Arab Bank mortgage showed that stamp duty was paid on an amount of $50,000 - [249]; (k) the evidence is consistent with a $50,000 loan - [384(4)]; (l) at its highest, the documentary evidence supports that $50,000 was borrowed - [384(4)(c)]; (m) the Arab Bank mortgage stated that for the purposes of the mortgage the "Customer" was Michael, Tony and Nouhad - [250] & [384(3)]; (n) Michael's 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 - [134] & [322]; (o) Michael paid the solicitor's bill - [383]; (p) Michael stated in his December affidavit that $40,000 to $50,000 went towards renovations to the property, the purchase of 2 new bedroom suites, a fridge and other electrical appliances - [293]; (q) 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 expenditure - [297]; (r) the evidence supported the conclusion that Michael did expend on renovations to the property - [296]; (s) the preponderance of the evidence is that there was a renovation of the kitchen and that a new carpet and lighting were installed - [383]; (t) in May 1996 Michael was electrocuted in a serious accident at work, as a result of which he could no longer work - [101]; (u) this accident gave rise to a "Total and Permanent Disability Payment'' of $149,858.32 to Michael's bank account by Colonial Life on 27 April 1998 - [101]; (v) on 28 April 1998 $81,024 was withdrawn from Michael's bank account - [102]; (w) Michael discharged the Arab Bank loan using some of the proceeds from his superannuation payment - [384(6)]; (x) on 13 May 1998 a discharge of the Arab Bank mortgage was registered on the title-[247(3)]; and (y) in April 2004 Tony died, upon which his interest in the property passed to Nouhad by survivorship - [107].

Legal Principles relied upon by Michael

Counsel for Michael then identified the legal principles underlying the alternative relief as follows: 4. In Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 147-148 Mason CJ, Wilson and Deane JJ, in a joint judgment, approved the following statement by Deane J (with whom Mason J (as he then was) agreed) in Muschinski v Dodds (1985) 160 CLR 583 at 620 of ((the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.": "... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf Atwoodv. Maude (1868) LR 3 ChApp 369, at pp 374-375 and per Jessel M.R., Lyon v, Tweddell (1881) 17 ChD 529, at p 531." 5. In Baumgartner the plurality noted that in Muschinski Deane J "pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention 'to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle', at p. 614: see also at p. 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust." 6. In Henderson v Miles (No 2) [2005] NSWSC 867 Young J at [19] described the equity identified in Muschinski as "the Windfall Equity". At [95] Young J said, "... in windfall cases, one looks not to the detriment that might be suffered because the arrangement did not continue, but merely to the detriment of losing a fund to the other party to the arrangement through unexpected circumstances, where such loss would result in the other having an unconscionable gain." 7. In Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2012) BPR 22,421 Campbell J (as he then was) said at [143], "...sometimes conduct... might provide a basis for someone who has made contributions to payment of mortgage instalments to claim a proprietary interest on [the] basis [of a] constructive trust, or equitable charge or lien." 8. In Daniel Terry Behman v Tarek Behman (also known as Terry Behman) [2015] NSWSC 1787 (a case in which a son claimed that his father held one-fifth of a property on constructive trust for the son after the son permitted the father to use the son's earnings over a period of about 10 years to be utilised to make mortgage payments to a bank) Rein J derived and set out at [33] the following principles from the decision of White J (as he then was) in Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Estate of Doolan [2005] NSWSC 42: "(1) the inquiry for the purposes of determining whether there was a common intention is inquiry as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons would have intended: see [34]; (2) the intention need not be that the parties have a specific share of the property; (3) intention may be established by: (a) agreement as to how the property should be held; (b) express statements of intention; (c) intentions inferred from conduct; (4) a common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture (Pettitt v Pettitt [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1971] AC 776 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342); (5) the intentions may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying of mortgage or the payment of expenses which free up funds for that purpose (see [38]). In the case of 'the common intention' constructive trust there is no presumption that the beneficial interest is in proportion with the contribution of the purchase price; (6) declarations about intentions before or at the time of the transaction or so close in time after the transaction as to constitute a part of it can be relied on (see [39]); (7) a plaintiff must show that he or she acted to his or her detriment in a way referable to the agreement or intention that she have an interest in the property; (8) conduct which is insufficient to establish a common intention as to ownership of the property may be sufficient to constitute relevant actions to the plaintiff's detriment to establish a trust if the common intention is established otherwise; (9) conduct may be both the evidence from which an intention that the plaintiff have a beneficial interest can be inferred and the act of detrimental reliance; (10) equality is equity but that statement can be departed from when the parties make disproportionate contributions to the acquisition of the property; (11) the constructive trust may arise after the acquisition of a property where the common intention is formed at a later time: Doolan at [45] and see Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044 at [55]."

Bases for the Alternative Claims

The bases for the alternative claims were described as follows: 9. The Arab Bank loan was a joint endeavour between Michael, Tony and Nouhad, as all 3 of them were named in the mortgage as the Bank's Customer (see 3(m) above), and the purposes of the loan included to pay the solicitor's bill (see 3(n) above), which was wholly for Nouhad's financial benefit (see 3(e) above), and to renovate the property (see 3(p)-(s) above), which it is submitted was wholly for Tony's and Nouhad's financial benefit as the owners of the property (see 3 (a) above). 10. As Tony and Nouhad were aged pensioners at the time (see 3(c) above), the Bank would scarcely have lent $50,000 to them unless Michael, who was earning about $70,000 per annum then (see 3 (f) above), joined them as a borrower and became liable to repay the loan. Anybody who has borrowed money from a bank would know that demonstrated ability to repay the loan to the bank is a prerequisite to obtaining it. For their part, Tony and Nouhad provided the property as security for a loan. 11. Michael did repay a loan of $50,000 (see 3(w) above). There is no evidence that Tony or Nouhad repaid any of it, and there is no evidence that any of Michael's siblings repaid any of it. Whilst the Court did not find that Michael used the whole of the withdrawal of $81,024 from his bank account on 28 April 1998 to repay the loan -[384(6)], the Court can be comfortably satisfied, and should find, that Michael repaid whatever was the full outstanding balance of the loan from that withdrawal, enabling registration of a discharge of the Arab Bank mortgage shortly afterwards, on 13 May 1998 (see 3(x) above). 12. The Court can, and should, infer that when Michael and his parents borrowed $50,000 from Arab Bank in September 1994 their agreement or common intention was not only that Michael would repay the loan but that, in return for doing so, he would receive a beneficial interest in the property. It is submitted that it is extremely unlikely that Michael would have undertaken such a heavy financial commitment without some agreement or understanding with his parents at the time that in return he would receive a beneficial interest in the property. It would strain credulity to breaking point to find that such a large financial contribution by him was a gift to his parents or a windfall to them then at a time when he was about to find a wife and marry. 13. The Court's rejection of Michael's evidence as to the promise on which he relied in support of his primary claim for relief does not stand in the way of the Court drawing an inference that when Michael and his parents borrowed $50,000 from Arab Bank in September 1994 their agreement or common intention was not only that Michael would repay the loan but that, in return for doing so, he would receive a beneficial interest in the property. 14. Shepherd, Black Uhlans Inc and Behman are all authorities for the proposition that an inference may be drawn from the payment of a mortgage of a common intention that a party have a beneficial interest in a mortgaged property owned by another. 15. The joint endeavour between Michael and his parents constituted by the Arab Bank loan would fail, without attributable blame, if Michael did not obtain some beneficial interest in the property. The Court should not permit such an unconscionable result to occur - by imposing a Baumgartner type constructive trust as a remedy. … 19. The Cross Claim claims in paragraph 3 an order that an enquiry be held as to the amounts of all payments made by Michael since 1994 on behalf of his parents, including payments of the solicitor's bill, costs of renovating the property, and principal and interest under loans secured by mortgage on the property. … 22. The Cross Claim claims in paragraph 4 a declaration that Nouhad holds the property on constructive trust for herself and Michael beneficially in such proportions as may be found by the Court. Such constructive trust would be a Baumgartner type of constructive trust, and the beneficial interests thereunder would be as tenants in common. The Cross Claimant is prepared to consent to the Court imposing as a condition of such a constructive trust a condition that he be restrained from enforcing his interest thereunder until Nouhad's death or the sale of the property, whichever first occurs. 23. In order to find the beneficial proportions, the Court would not only benefit from having, but would almost certainly need to have, evidence of the value of the property as at September 1994 (when the Arab Bank loan was taken out) and/or May 1998 (when it was repaid). 24. At paragraph [395] of the Judgment the Court stated that there should be no further evidence save by leave of the Court.
In conclusion, counsel for Michael submitted (the last paragraph constituting the sole written submissions as to para 9 of the relief claimed as an alternative claim) as follows: 31. On the assumption that the Court will receive evidence of the value of the property at relevant times and will accept Ms Adamson's evidence, a declaration is sought and should be made that Nouhad holds the property on constructive trust for herself and Michael beneficially in proportions of about 70 per cent and 30 per cent, respectively, as tenants in common, subject to a condition that Michael be restrained from enforcing his interest thereunder until Nouhad's death or the sale of the property, whichever first occurs. 32. Such beneficial apportionment is based on findings that by May 1998 the total amount of Michael's expenditure on behalf of his parents on payments of the solicitor's bill, costs of renovating the property, and principal and interest under loans secured by mortgage on the property was most likely about $80,000 and that as at 31 May 1998 the value of the property was $259,000. 33. Finally, it is submitted that if the Court is not minded to impose a Baumgartner type constructive trust to prevent unconscionable retention by Nouhad as the surviving owner of the property of the benefits of Michael's payments on behalf of her and his late father between 1994 and 1998, the Court should at least grant to the Cross Claimant an equitable charge or lien over the property securing the repayment of those payments to him totalling about $80,000, pursuant to the approaches taken in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 and Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, referred to at paragraph [60] of the Judgment. Once again, such an equitable charge or lien should be subject to a condition that Michael be restrained from enforcing his interest thereunder until Nouhad's death or the sale of the property, whichever first occurs.

Expert Evidence Sought to be Adduced

Michael also made an application to adduce evidence of the value of the property. He sought leave to adduce the evidence of an expert, Nicole Adamson, Valuer, dated 2 May 2019. Ms Adamson's valuation of the property as at 30 September 1994, 31 May 1998 and 17 April 2019 was annexed to an affidavit of Michael's solicitor, Mr Michael Shane Neagle, affirmed 6 May 2019, which was admitted to determine the threshold issues discussed below.
In support of the application for leave to adduce that evidence, Michael relied upon the "explanations" contained in Mr Neagle's affidavit. It was submitted in support of leave: 29. In the interests of justice, leave to adduce Ms Adamson's report should be granted to the Cross Claimant - on terms, of course, that the Cross Defendant have leave to adduce expert evidence in reply, if so advised. 30. The interests of justice are brightly illuminated by the overwhelming likelihood that without evidence of the value of the property at various relevant times the Court will almost certainly be unable determine proportions of beneficial ownership as the basis for a Baumgartner type constructive trust.
In his affidavit, Mr Neagle referred to [62], [386] and [395] of Awad No 1. Mr Neagle then deposed as to counsel's advice (at para 5): 5. On about 14 February 2018 counsel for the Cross Claimant provide to me advice concerning the lack of need for an expert valuer's report concerning the subject property in words to the effect: Counsel: "Michael's case for primary relief is simply about whether or not a representation was made to him that he was to get half the property and he relied upon the representation to his detriment, and therefore we don't need an expert report to argue that straight-forward point and where Michael has a strong case - if he gets up on that there was such an agreement, valuations are irrelevant to run that relief…"
Reference was then made to the interlocutory proceedings before Johnson J.
As to expert evidence, Mr Neagle deposed that counsel for Michael informed his Honour of the following: There is no longer any issue about experts' reports. My friend and I have had a discussion at the bar table in that regard and we agree there is no need for experts' reports so it is not a question of how much is the property worth, it is a question of whether on equity principles my client, Michael Awad, should have a half interest based on contributions and loans and the like and a discussion that occurred many years ago.
It was then stated that the Court observed: To the extent that there was an indication that a valuation expert may be called by the Cross-Defendant, it is the position, it would seem, that expert evidence of that type is not to be called by either side at the hearing.
Mr Neagle then further deposed: 12. At all times the Cross Claimant and I relied on the advice of counsel for the Cross Claimant. 13. As soon as the Court refused the Cross Claimant's primary claims for relief, I formed an opinion that he needs evidence of the value of the subject property as at 1994 or thereabouts in order to support his claims for alternative relief. In my respectful submission, it is essential, in the interest of justice, that the Court grant him leave to adduce such evidence. 14. I have obtained such evidence at my own personal cost.
It may be observed that Mr Neagle made no reference in his affidavit to [394] of Awad No 1.

Submissions in support of leave to adduce expert evidence

Michael made the following submissions in support of his application to read the affidavit of Mr Neagle: 25. Application is made for leave to adduce in evidence an expert report dated 3 May 2019 of Nicole Adamson, Valuer, estimating the value of the property at 30 September 1994, 31 May 1998 and 17 April 2019, respectively, a true copy of which is annexed to an affidavit of the Cross Claimant's Solicitor, Michael Shane Neagle, affirmed today, 6 May 2019. 26. Leave to read such affidavit in support of such application now is sought. 27. Mr Neagle explains why such evidence was not obtained previously. 28. In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Clarke JA (with whose judgment Mahoney and Meagher JJA agreed) said, "... the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge's view as to whether the interests of justice are better served by granting rather than by refusing the application. "... if the evidence is crucial... the interests of justice would seem to require the grant of leave to re-open where the earlier failure to call the evidence had resulted from some type of mistake. "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application ... No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one. ... there may be cases in which it is felt that the client whose application it is should not have to suffer for his ... counsel's deliberate decision. " 29. In the interests of justice, leave to adduce Ms Adamson's report should be granted to the Cross Claimant - on terms, of course, that the Cross Defendant have leave to adduce expert evidence in reply, if so advised. 30. The interests of justice are brightly illuminated by the overwhelming likelihood that without evidence of the value of the property at various relevant times the Court will almost certainly be unable to determine proportions of beneficial ownership as the basis for a Baumgartner type constructive trust.

Overall Approach to Alternative Relief by Michael

The overarching approach taken by Michael as to the alternative relief was explained in his written submissions as set out above at [30] above.

FURTHER SUPPLEMENTARY SUBMISSIONS FOR NOUHAD

The submissions of Nouhad raised three contentions which became the focus of the latter process before the Court at the directions hearing and, as mentioned, constituted the threshold issues.
The summary of these contentions above requires elaboration, which appears below.
First, Michael is departing from his pleaded case for the alternative relief. In that respect it was submitted: 1. Michael is advancing a new case for the alternative relief in the submissions filed pursuant to the Court's order in Awad No 1. 2. The submissions of Michael made in accordance with the directions of the Court in Awad No 1 raise the alternative claim on two bases: 1. Common intention constructive trust between Michael, Tony and Nouhad; or, alternatively, 2. Joint endeavour between Michael, Tony and Nouhad. 1. This is the first time that the claimed relief in para 4 of the cross-claim had been articulated in that way. Neither common intention nor joint endeavour constructive trust was pleaded in the cross-claim. Further, that case was not raised during the hearing or in previous written submissions. What Michael was doing was, in fact, advancing a new case through his submissions. 2. That approach is impermissible. The cross-claimant should be held to its pleaded case: see Dare v Pullham (1982) 148 CLR 658; [1982] HCA 70. No application has been made by Michael to now amend his pleadings or re-open the case. 3. Further, at no stage has Michael pleaded the elements of either a common intention constructive trust or a joint endeavour constructive trust. Seeking relief, without more, on the basis of a general constructive trust, is not sufficient, to put Nouhad on notice as to the nature of the case which she has to defend. 4. Nouhad would suffer irremediable prejudice if Michael was allowed to take this course. For example (and not exhaustively), Nouhad has lost the opportunity of taking one or more of the following steps: 1. cross-examining Michael on an alleged common intention or joint endeavour with his father and mother and the elements of those causes of action; 2. leading responsive evidence from the witnesses for Nouhad as to a common intention or joint endeavour between Michael and the father and mother. 1. The prejudice cannot be cured by re-opening the case. It is sufficient for Michael's relief to be dismissed on these reasons alone. 2. Furthermore, by seeking to raise this new case now, Michael is acting in a manner contrary to his obligations under ss 55 and 56 of the Civil Procedure Act 2005 (NSW).
Secondly, if the Court were to accept that the alternative claims can be introduced for the first time in submissions after the case has closed, then the relief should nonetheless be refused. As to a common intention constructive trust and Michael's reliance on certain factors as the basis thereof, Nouhad submitted the claim must fail as there was no evidence of a common intention between Michael and his parents; the asserted common intention is contrary to the evidence and inconsistent with findings of the Court.
The submissions of Nouhad as to there being no basis to impose a common intention constructive trust were as follows: 17. The Cross-Claimant relies on a common intention constructive trust on the grounds that: c. the Court should infer that when Michael and his parents borrowed $50,000 from the Arab Bank they had a common intention that Michael would repay the loan and in return for doing so, would receive a beneficial interest in the property: Cross-Claimant's submissions at [12]-[13]. d. it is extremely unlikely that Michael would have undertaken such a heavy financial commitment without some agreement or understanding with his parents at the time that he would receive a beneficial interest in the property: Submissions at [12]. 18. A common intention constructive trust cannot be established in the circumstances. 19. First, there is no evidence of the Cross -Claimant's common intention with his parents. His entire case was framed on the basis of reliance on a particular representation made by his father in 1994. Whilst case law has identified objective circumstances which can assist the Court in finding a common intention, the Cross-Claimant has not identified any authority where such a finding has been made when there is no evidence from either party of any actual intention: Submissions at [14]. As stated above, the inquiry for a common intention constructive trust is as to the actual intention of the parties. 20. Second, the common intention now asserted is inconsistent with the Cross-Claimant's evidence. The Cross-Claimant's evidence was that in reliance on a representation made by his father in 1994 he paid $90,000 for the Arab Bank loan. That evidence was rejected by the Court. The Cross-Claimant now asserts (in submissions, not evidence) that his common intention was in relation to a payment of $50,000. It is not possible for this Court to find a common intention on the part of the Cross-Claimant which is inconsistent with his own evidence. 21. Third, it is factually improbable that the parents would have had the identified common intention. The parents had five children; and there is no reason to think that they would have been prepared to provide a disproportionately greater beneficial interest in the family home to one of their children, Further, as the Court identified, there was no urgency associated with any renovations which were undertaken and they were undertaken primarily for the Cross-Claimant's benefit. As such, it is not reasonable for the Court to infer that payment for any renovations would be pursuant to a common intention to afford the Cross-Claimant with a beneficial interest in the property. As stated at [385]: "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." 22. Similarly, as there was equity in the family home, there is no reason to think that the mother could not have obtained the funds to repay her solicitor's bills without assistance from the Cross-Claimant: see Judgment at [385]. But in any event, the payment of solicitor fees does not, without more, give rise to a constructive trust. (The Cross-Claimant's submissions that the Arab Bank would not have lent money to the mother without his involvement finds no support in the evidence. Submissions at [10].) 23. Fourth, the Court's findings are inconsistent the Cross-Claimant's assertion that he would not have lent the money but for the asserted common intention for example, the Court included that (at [385]): "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." "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."
Counsel for Nouhad then advanced submissions as to why a reliance by Michael upon a joint endeavour constructive trust must fail. Those submissions were as follows: 25. Alternatively, the Cross-Claimant relies on a joint endeavour constructive trust. The joint endeavour is stated to be "the Arab Loan" carried out for the "purposes" of payment of the solicitor's bill and for the renovations; see at [9]. It is submitted that the joint endeavour would fall if the Cross-Claimant was not entitled to a beneficial interest in the Property. 26. The joint endeavour, as it is framed, cannot be established. 27. First, for a constructive trust to arise there must be a failure of the joint endeavour, see Muschinski v Dodds (1985) 160 CLR 583. A relevant failure arises when the contributions were made in circumstances that it was not intended that the other party should enjoy them. That has not occurred. If the joint endeavour was to obtain a loan to pay a solicitor's bill and for renovations, as stated, then the joint endeavour was successful. The mother got the benefit of the solicitor's bill being paid out; and the Cross-Claimant got the benefit of funds (supported by the security of his parent's house) from which he could finance expenses in relation to his wedding holiday and renovations. Unchallenged findings of the Court were that the Cross-Claimant was the primary beneficiary from the renovations, at [384]-[385]. 28. Second, there is no requisite unconscionability: see Muschinski v Dodds (1985) 160 CLR 583 at 620 Deane J. The unconscionability identified in submissions at [16], namely that had the Cross-Claimant not repaid the Arab Bank loan he would "have been free to borrow and repay a similar amount to acquire a property of his own" is irrelevant. First, the Cross-Claimant has never given that evidence; this is a matter of conjecture or speculation which is raised in submission for the first time. Second, this is inconsistent with the Court's findings as to the Cross-Claimant's general willingness to assist his parents. A generosity of spirit in assisting one's parents which is not subsequently rewarded with a beneficial interest in property does not give rise to any requisite unconscionability. It is clear that equitable rights do not arise merely because the Court considers it fair in all the proven circumstances that the legal owner of property should hold it, or a portion of it, for the benefit of another: Muschinski v Dodds (1985) 160 CLR 583 at 615-616. 29.Third, the Cross-Claimant appears to rely, for the purposes of his argument, on the fact that the Cross-Claimant spent between $50,000 to $80,000 on his parents, and that the total amount of his expenditure "was most likely about $80,000"; at [21] [32]. As a preliminary matter, this is inconsistent with the Cross-Claimant's own evidence. But relevantly, that is not supported by the Court's findings, The Court found that some part of the sum of $81,024 was used to discharge the Arab Bank loan, but could not make any findings as to the amount of that sum, given the problems with Cross-Claimant's evidence. The Cross-Claimant cannot rely on the deficiencies in his own evidence to establish a right to a beneficial interest which is proportionate to the sum of $80,000 in 1998. 30. Fourth, the Cross-Claimant has led no evidence about any joint venture with his parents; the scope of that joint venture and how he says it has failed. It is not appropriate for evidence to be given by way of Submissions, without leave, after the close of the heating.
As to any claim for relief upon the basis of an equitable charge or lien, Nouhad submitted: 31. No relief on the basis of an equitable charge or lien has been pleaded by the Cross-Claimant. On this alone the relief should be refused. 32. In any event, the entitlement to an equitable charge or lien is suggested to be on the same grounds as for the above constructive trusts: Submissions at [33]. It follows if the Court is not satisfied that a constructive trust can be established, there is no basis for the Court to impose an equitable charge or lien over the Property in favour of the Cross-Claimant. 33. If the Cross-Claimant's alleged entitlement to an equitable charge or lien in Property is broader and is intended to be grounded, simply, in proof of the existence of the payment of money to his parents, it should also be refused. The Cross-Claimant has not identified any authority in support of that proposition. Relief on that ground is not known to law.
Thirdly, it is unnecessary to determine the application for leave to adduce evidence of the value of the property because the claim for relief on the basis of constructive trust is "hopeless". In any event, it was submitted, there were three further bases to refuse leave: 1. First, this matter has been legally-aid funded. Nouhad will suffer real prejudice in now obtaining the funds to prepare responsive valuation evidence to the proposed evidence. 2. Secondly, there is no sound legal basis for the equitable relief upon which Michael relies and, in turn, no reason to grant to Michael an indulgence from the Court, particularly in circumstances where Michael has not offered to pay for all of Nouhad's costs in responding to that evidence. 3. Third, where Michael made a deliberate and forensic choice to neither plead the nature of the constructive trust case upon which he now relies nor lead evidence in support of a common intention or joint endeavour, he should be held to those decisions (that forensic choice to this effect were made is also supported by the affidavit of Mr Neagle sworn 6 May 2019 at paras 5 and 9).

THE DIRECTIONS HEARING

In the light of this exchange of written submissions the Court listed the matter for directions on 30 July 2019.
Both parties accepted that it was desirable for the Court to deal with the threshold issues on the written submissions before any further proceeding, provided Michael had the opportunity to reply in writing to the submissions for counsel for Nouhad.

THE FURTHER REPLY SUBMISSIONS FOR MICHAEL

Pursuant to leave granted by the Court at the directions hearing on 30 July 2019, counsel for Michael produced a further written submission in reply dated 8 August 2019. Those submissions concerned the following topics, with respect to alternative relief: 1. paragraph [394] of Awad No 1; 2. legal aid; 3. the pleading of the cross-claim; 4. application to adduce new evidence; and 5. section 56 of the Civil Procedure Act.
As to [394] of Awad No 1, the counsel for Michael advanced the following submissions: 4. It is respectfully submitted that the observations contained in that paragraph do not stand in the way of the Court hearing and determining the Cross-Claimant's claims for alternative relief in paragraphs 3 and 4 of the Cross-Claim. … 9. Of great weight in determination by the Court whether it should proceed to hear and determine the Cross-Claimant's claims for alternative relief are the fact that these claims have always been contained in the Cross-Claim; as acknowledged at [388] of the Judgment, the Cross-Claimant sought to defer the hearing of these claims; as acknowledged at [391], the authorities relied on by the Cross-Claimant establish that the Court has power to grant the alternative prayers for relief; fairly obviously, unnecessary wastage of time, effort and costs were avoided by deferring the hearing of these prayers unless and until the need to prosecute them arose, upon the refusal of the primary relief sought; had that relief been granted, there would have been no need to prosecute the alternative prayers for relief; at [395] and [397] the Court granted leave to the Cross-Claimant to prosecute his prayers for relief in paragraphs 3 and 4 of the Cross-Claim, subject to the conditions set out in (1) to (3) of [395] and (2) to (4) of [397]; and pursuant to the order made at 397, leave is sought to adduce in evidence an expert report dated 3 May 2019 of Nicole Adamson, Valuer, estimating the value of the subject property at various possibly relevant dates, a true copy of which is annexed to an Affidavit of the Cross-Claimant's Solicitor, Shane Neagle, affirmed on 6 May 2019.
As to the relevance of Nouhad being legally aided, the following submissions were made: 5. If the Cross-Defendant has been legally aided, that fact should have little, if any, weight in determination by the Court whether it should proceed to hear and determine the Cross-Claimant's claims for alternative relief. 6. I am not aware of any authority that has decided that a claim (or cross-claim) for alternative relief should not be heard and determined merely because the defendant (or cross-defendant) has been legally aided. 7. The Court's record will show that on 18 November 2016 M Adams J ordered that the Defendant (now the Cross-Claimant) be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance in respect of further litigation of the Statement of Claim. At that stage His Honour acknowledged that the Defendant claimed an equitable interest in the property. 8. Pursuant to that referral the Cross-Claimant's barrister and solicitor have been providing legal assistance to him in these proceedings.
Turning to the pleading of the cross-claim, counsel for Michael submitted: 1. The pleading of Michael in paras 1 to 10 on pages 2 to 4 thereof, in conjunction with the evidence adduced during the hearing, and the findings of the Court and legal principles relied on in Michael's primary alternative relief submissions, provide ample notice to Nouhad of a claim for, and an ample basis for, a Baumgartner type constructive trust. 2. In Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 ("Baumgartner") (at 147-148), the plurality noted that in Muschinski v Dodds (1985) 160 CLR 583 Deane J "pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention 'to preclude the retention or assertion of beneficial ownership of properly to the extent that such retention or assertion would he contrary to equitable principle', at p. 614: see also at p. 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust". 3. Michael is not advancing a new case through the primary alternative relief submissions. 4. Given the nature of a Baumgartner type constructive trust, the pleading of the cross-claim does not need amendment, and Nouhad is not prejudiced by such pleading.
As to the application to adduce new evidence, reliance was placed upon the following passages from the judgment of Clarke JA in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (with whom Mahoney and Meagher JJA agreed) (at 476-478): ... the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge's view as to whether the interests of justice are better served by granting rather than by refusing the application. ... if the evidence is crucial... the interests of justice would seem to require the grant of leave to re-open where the earlier failure to call the evidence had resulted from some type of mistake. … The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application ... No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. ... there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision.
Further, it was submitted the evidence should be admitted in the interests of justice. In particular, it was submitted: The interests of justice are brightly illuminated by the overwhelming likelihood that without evidence of the value of the property at various relevant times the Court will almost certainly be unable to determine proportions of beneficial ownership as the basis for a Baumgartner type constructive trust.
Finally, a submission was advanced with respect to s 56 of the Civil Procedure Act: … fairly obviously, unnecessary wastage of time, effort and costs were avoided by deferring the hearing of the alternative prayers for relief unless and until the need to prosecute them arose, upon the refusal of the primary relief sought; had that relief been granted, there would have been no need to prosecute the alternative prayers for relief.

Clarification of Further Supplementary Submissions

Following receipt of the submissions identified above, the Court sent a communication inquiry as to whether counsel for Michael had, in fact, made a reply to the submission of counsel for Nouhad under the heading "No Evidence for a Common Intention or Joint Endeavour Constructive Trust" in his written submissions dated 3 June 2019. Counsel for Michael sent the following communication in reply: I confirm that His Honour has all of the cross claimant's submissions (dated 6 May 2019 and 8 August 2019) and the cross claimant's proposed fresh evidence (the affidavit of Shane Neagle of 6 May 2019) in support of the cross claimant's claim for alternative relief, as well as in reply to the issue raised by His Honour identified in your earlier email today, and in reply to the cross defendant's submissions dated 3 June 2019. Accordingly, the parties would be grateful if His Honour would proceed to judgment on the cross claimant's alternative claim for relief.

CONSIDERATION

It is appropriate to commence the discussion of the threshold issues by first examining the general nature of constructive trusts and the primary claim.
The general nature of constructive trusts and equitable estoppel was described by Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 ("Giumelli") at 111-112 (see also Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 ("Sidhu") at [1]-[2] (per French CJ, Kiefel, Bell and Keane JJ) and Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 at [67]-[75] (per Sackar J).
The primary action was predicated upon equitable estoppel and, in particular, proprietary estoppel. The nature of and basis for that claim were broadly described at the outset of the judgment and in the extract from Awad No 1 at [23] above. That claim is made in paras 1, 2 and 5 of the relief claimed and paras 1 to 9 of the pleadings and particulars of the cross-claim. Without repeating or derogating from that analysis, the claim was predicated (unsuccessfully) upon the existence of an unperformed promise and what was said to be the conduct of Michael in acting upon the expectation to which the promise gave rise. In fact, this was the description of the primary claim given by counsel for Michael in the context of giving advice as to the need for valuation evidence, as disclosed in the affidavit of his solicitor set out at [33] of this judgment.
This remedy, in the field of estoppel, was described in Giumelli at [5]-[6] and [35] (in acceptance of the judgment of McPherson J in Riches v Hogben [1985] 2 Qd R 292), as follows: [5] In the present case, the constructive trust is proprietary in nature. It attaches to the Dwellingup property. Such a trust does not necessarily impose upon the holder of the legal title the various administrative duties and fiduciary obligations which attend the settlement of property to be held by a trustee upon an express trust for successive interests. Rather, the order made by the Full Court is akin to orders for conveyance made by Lord Westbury LC in Dillwyn v Llewelyn and, more recently, by McPherson J in Riches v Hogben. [6] In these cases, the equity which founded the relief obtained was found in an assumption as to the 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. … [35] The matter was taken further by McPherson J in Riches v Hogben. His Honour noted that the critical element is the conduct of the defendant after the representation in encouraging the plaintiff to act upon it and continued: "A consequence of applying the principle may be to complete an otherwise imperfect gift, as in Dillwyn v Llewelyn, or to give effect to an agreement that, for want of certainty or consideration or of some other essential element, falls short of constituting an enforceable contract. Many of the reported cases are concerned with imperfect gifts; but there is of course a sense in which all agreements made or promises given without consideration are imperfect gifts of the benefits they purport to confer. 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. In that respect it represents the precise converse of what was said by Jessel MR in Ungley v Ungley to be the basis for enforcing the contract in that case. 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. That is why in Dillwyn v Llewelyn, where the son built on land promised but not effectively conveyed to him by a memorandum signed by his father, Lord Westbury LC said that the only inquiry was 'whether the son's expenditure, on the faith of the memorandum, supplied a valuable consideration, and created a binding obligation'." [Footnotes omitted.] (See also Sidhu at [2]. [58], [77], [79] and [82]).

The Alternative Claim: Paras 3 and 4 of the Relief Claimed

As to the alternative claim, I will first turn to paras 3 and 4 of the claim for relief.
The basis for the claims in paras 3 and 4 of the relief claimed in the cross-claim was expressed in quite general terms.
As earlier discussed in this judgment, paras 3 and 4 of the alternative claims respectively sought an inquiry (into all payments by Michael since 1994 on behalf of Nouhad and his father) and a declaration that Nouhad held the property on constructive trust for herself and Michael beneficially in such proportions as may be found by the Court. Whilst Michael contended that the Court had already conducted such an inquiry, in substance, both forms of the alternative relief derived, in my view, from a common foundation expressed in para 10 of the pleadings, namely, that Nouhad held the property "on constructive trust" for herself and Michael beneficially in terms specified in the pleading. There is no other stipulation as to the basis for claims for relief in paras 3 and 4 in the pleadings other than para 10 of the pleadings.
The basis for the alternative claim in paras 3 and 4 was distinguished in the cross-claim from the primary claim by the fact that the Court could declare the existence of a constructive trust held by Nouhad for Michael and Nouhad and that monies held beneficially would be in such proportions as found by the Court. The Court could construe, it was pleaded, any benefit in favour of Michael held and find that the property was held on a constructive trust, broadly, in the manner discussed in Giumelli at [2]. Thus, the claim did not involve a proprietary estoppel of the kind relied upon in the primary claim but the basis was otherwise ill-defined.
The closing oral submissions and the supplementary written submissions by counsel for Michael offered only limited further insight into the basis for the alternative claim, save for a contention that the alternative claim could be made upon the basis of a "tenancy in common" and the authorities relied upon as proving a legal foundation for that claim, principally, Giumelli and Sidhu.
Counsel for Nouhad was correct to submit the basis for the alternative claim described by Michael in the further supplementary submissions was either a constructive intention constructive trust (see further supplementary submissions for Michael on Behman v Behman [2015] NSWSC 1787 at [33], adopting Shepherd v Doolan; [2005] NSWSC 42 at [8], [12] and [13]) or a joint endeavour constructive trust (hereinafter, collectively, "the trusts") (see the further supplementary submissions for Michael at paras 17-18).
Counsel for Michael did variously refer to the Court imposing a "Baumgartner type constructive trust" in the further supplementary submissions as a remedy but the contentions ultimately do not extend beyond the trusts. The reference to a Baumgartner type trust was a reference to the judgment of the High Court in Baumgartner. It may be noted, in that respect, that, in the submissions made by Michael in the supplementary submissions seeking to demonstrate the legal basis for the alternative claim reliance was not placed on Baumgartner as such. It may also be noted that the High Court in Baumgartner distinguished the circumstances in that matter (vis-à-vis estoppel) from the contributions to a joint endeavour as discussed in Giumelli (at 113).
The elements of each class of trust constituting the trusts necessary to establish before a court of equity will declare a person a constructive trustee requires some elaboration both to further address the question of notice to Nouhad of the basis for the claim and whether there was evidence in the proceeding, supportive of the imposition of the trusts, taking into account the findings of the Court in Awad No 1 (and findings in Awad No 1 inconsistent with finding such a constructive trust in the circumstances relied upon by Michael).
A common intention constructive trust may operate where the parties agreed, or it was their common intention that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention: see eg Grant v Edwards [1986] Ch 638 at 654 (per Viscount Browne-Wilkinson); Green v Green (1989) 17 NSWLR 343 at 355 (per Gleeson CJ); Maharaj v Chand [1986] AC 898 at 907 (per Cooke J).
Where a constructive trust is imposed, based upon the parties' common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue: Behman v Behman [2015] NSWSC 1787 at [33] (per Rein J), adopting Shepherd v Doolan [2005] NSWSC 42 ("Shepherd") at [34] (per White J).
The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law: Shepherd at [37].
In Grant v Edwards, Nourse LJ said (at 648) that to qualify as acting on the common intention, the conduct must be such that the plaintiff could not reasonably have been expected to embark upon it unless he or she were to have an interest in the property.
A joint endeavour constructive trust was discussed in Baumgartner (at 147-148) by reference to the judgment of Deane J (with whom Mason J agreed) in Muschinski v Dodds, as follows: Deane J. (with whom Mason J. agreed) reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. His Honour said: " … the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude and per Jessel M.R., Lyon v. Tweddell." His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle": see also at p. 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust. [Footnotes omitted.]
The characteristics of a constructive trust which arise on this basis were explained by Campbell J in West v Mead [2003] NSWSC 161 at [52]-[64]. His Honour said (at [59]): [59] In accordance with this approach, a plaintiff needs to establish that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is. Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought to be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non-financial, to that asset should be regarded as unequal. In practical terms, this way of proceeding will place the onus of attributing a value to non-financial contributions on the person who asserts that the title should be held unequally.
Counsel for Michael contended that the pleadings, the evidence led by Michael at the hearing, the legal principles relied upon by Michael in the supplementary written submissions provided "ample notice" to Nouhad as to the alternative claim and "a Baumgartner type constructive trust". I do not agree (so far as paras 3 and 4 of the alternative relief are concerned corresponding, as they do, to para 10 of the pleadings and particulars of the cross-claim).
As discussed above, the pleadings (and relief) provide only a very broad, non-specific description of the claim based upon a constructive trust.
The opening submissions of Michael gave no indication of the basis for the alternative claim beyond that stated in the pleadings. The evidence in the proceedings was directed to the primary claim, namely, the issue of the existence of a promise and reliance.
Whilst stating some general principles concerning equitable estoppel and constructive trusts, the legal authorities relied upon by counsel for Michael in supplementary written submissions, such as Giumelli and Sidhu, are more clearly aligned with the primary claim and placed no reliance upon Baumgartner as such (in fact, the circumstances in Baumgartner were, as noted above, distinguished from the factual circumstances in Giumelli).
Further, the supplementary written submissions do not advance upon the general basis for the claim via a constructive trust. Nor does a reference in the supplementary written submissions to the claim being based upon a tenancy in common significantly further elucidate the basis for the claim. Under s 26(1) of the Conveyancing Act 1919 (NSW), any beneficial interest for two or more persons will result in the property being held as tenants in common. The reference to a tenancy in common does not imply any further detail about the basis of the claim of constructive trust.
It may be further observed that, as stated at the outset of this judgment, the primary claim of which Nouhad did have notice was pursued on a quite particular basis, namely, the existence of a promise made by Tony in the presence (and with the approval) of Nouhad that, if Michael paid, inter alia, certain legal costs and paid costs of renovating the property, Michael would be given a beneficial interest of half of the property. The Court made adverse finding as to the promise and found, without a necessity to decide, the issue that reliance had not been established. Whilst counsel for Michael agreed (unconvincingly, as will be observed in relation to prospects of the alternative claim) that the rejection of Michael's evidence as to the promise does not stand in the way of the Court drawing an inference that when Michael and his parents borrowed monies from the Arab Bank in September 1994, their common intention was that Michael's repayment of the loan would give him a beneficial interest in the property, it does not follow that the stipulation of the primary case, as prosecuted by Michael, could have given Nouhad proper notice of that basis for the alternative claim.
It may be further observed (as a matter also concerning the second issue as to prospects of the alternative claim) that the common intention now asserted is inconsistent with Michael's evidence. Michael's evidence was that in reliance on a representation made by his father in 1994 he paid $90,000 for the Arab Bank loan. That evidence was rejected by the Court in Awad No 1. Michael now asserts (in submissions, not evidence) that his common intention was in relation to a payment of $50,000. I agree with the submissions made by counsel for Nouhad, that this Court would not find a common intention on the part of Michael, which is inconsistent with his own evidence.
The elements of common intention (and joint endeavour) were simply not disclosed by pleading or in argument so that Nouhad was on notice of the nature of the case she had to defend.
In Jacobsen v Jacobsen [2017] NSWSC 1590, Ward CJ in Eq (at [109]) held that the claim for a constructive trust had to be clearly set out in the pleadings: [109] There are well-settled classes of case in which a court of equity will declare that one person is a constructive trustee. In each of these cases - whether what is alleged is, for example, a trust arising from a transaction vitiated by a fraudulent misrepresentation (see Shalson v Russo [2005] Ch 281), or a so-called common intention constructive trust (see Shepherd v Doolan [2005] NSWSC 42 at [31]), a joint endeavour constructive trust (see Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 134), a trust imposed upon a thief (see Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81, [37]-[39]; [43]), or even a form of ancillary liability couched in the language of constructive trusts (such as a claim for knowing receipt or knowing assistance) - it is necessary that the basis of the claim to a constructive trust be articulated in the pleadings.
In Silvia (Trustee) v Williams [2018] FCAFC 194, the pleadings raised the issue that part of the interest in land was "held on trust" and elsewhere referred to a "joint endeavour" carried on by the couple. The appellant argued that the pleadings raised the issue of a common intention constructive trust. One argument raised to support this was that no other kind of trust was available on the evidence. However, the Court held that a common intention constructive trust could not be inferred from the pleadings (at [29]). The pleadings did not mention a common intention or identify the detriment suffered by the respondent. The Court also stated at [29] that a constructive trust could not be "deduced" from the pleadings: [29] … The role of pleadings is to disclose a party's case to the other side. Generally speaking, a case which has to be deduced from what is not alleged is not one which has been fairly disclosed.
Overall, I do not consider that Nouhad had adequate notice of the basis for Michael's alternative claim vis-à-vis the trusts (as formulated in his further supplementary submissions) either during the hearing of the cross-claim or in the supplementary written submissions.
It follows that those bases for the alternative claims were not, therefore, in contemplation when the Court considered the question as to whether Michael should be permitted to prosecute the alternative claim (see findings in Awad No 1 at [8]). The Court's consideration of the legal authorities advanced by Michael did not indicate more than the authorities relied upon broadly permissive of remedies with respect to equitable estoppel (per the primary claim) and constructive trust.
In the circumstances, Nouhad was entitled to contend she would suffer prejudice if Michael was allowed to take the course proposed in his further supplementary submissions vis-à-vis the trusts, with respect to claims in paras 3 and 4 of the relief claimed, because she had lost the opportunity of, inter alia: 1. cross-examining Michael on an alleged common intention or joint endeavour with his father and mother and the elements of those causes of action; and 2. leading responsive evidence from the witnesses for the cross-defendant as to a common intention or joint endeavour between the cross-claimant and the father and mother.
I do consider the prejudice can be cured by a re-opening of the evidence in the proceedings and/or an order for costs (although counsel for Michael did not make a concession as to costs if such a course were taken or, for that matter, he was permitted to call expert evidence).
Further, the Court has already made credit findings concerning Michael and his wife, together with findings about Nouhad's witnesses in the context of the primary claim. As previously mentioned, the common intention constructive trust requires a resolution as to whether there was a common actual subjective intention to create a trust in a construction which will attract credit issues: see for example, Baumgartner at 145.
It may also be noted, in that respect (and in relation to the latter discussion about the prospects of the alternative claim), that the Court found in Awad No 1 (at [380]) that, irrespective of other findings with respect to the promise, that no personal equity was enforceable against Nouhad.
This conclusion brings into sharper and emphatic focus the submissions for Nouhad made as supplementary submissions at the time of the hearing, which were summarised (with observations) in Awad No 1 at [392]-[394]. Those passages were set out earlier but for convenience are repeated here, with the further observation that one significant basis for the Court's acceptance for the alternative claim being prosecuted, notwithstanding an acceptance otherwise of the submissions advanced by Nouhad, was that Michael did not intend to call further evidence (a position now changed): [392] 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. [393] 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. [394] 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.
It is evident from the opening submissions made on behalf of Michael and the evidence of Mr Neagle that he had made, on the advice of counsel, a deliberate, forensic choice not to particularise the claim as such, upon the basis of the trusts, nor lead evidence specifically described to that end. No explanation was advanced for the changed position, with respect to the calling of expert evidence, save that counsel for Michael had given advice that the evidence was not required.
It was submitted by Michael that it was in the interests of justice that he be permitted to call expert evidence appended to Mr Neagle's affidavit, and that such interests were brightly illuminated by the fact that the overwhelming likelihood was that without such evidence the Court would almost certainly be unable to determine the proportions of beneficial interest.
As to [394] of Awad No 1, it was submitted by Michael: 1. The basis for the trusts had always been part of the cross-claim. 2. Michael had sought to defer the hearing of those claims. 3. The Court had determined there was a power to grant the alternative relief. 4. It would have been an unnecessary waste of time, effort and costs if the alternative claim was not deferred because if the primary claim had been granted it would have been unnecessary to prosecute the alternative claim. 5. Leave was given by the Court to seek to call further evidence, subject to conditions.
Further, Mr Neagle deposed that he had been advised that evidence as to the valuation was not required for the primary claim (and acted upon that advice), there was no issue about expert reports during the course of the proceedings, and that as soon as the primary claim was determined adversely to Michael, he formed an opinion that such expert evidence was required.
However, I do not consider that Michael has established a basis for the grant of leave to call the valuation evidence and I do not consider it is in the interests of justice to grant that leave for the following reasons: 1. As found above, Nouhad did not have adequate notice of the bases of the alternative claim vis-à-vis the trusts. 2. I have earlier rejected that a contention by Michael that the Court had found there was power to grant the alternative claim (as verification that adequate notice had been given by Michael) so far as the claim was based upon the trusts. 3. Counsel for Michael stated at the close of the proceedings that the alternative case would "go forward on submissions". He stated emphatically, after taking instructions, that Michael would not put on any more evidence, notwithstanding counsel for Nouhad identified, at the time, that there was no evidence as to the value of the property. 4. This was the very issue referred to by the Court at [393] and [394] of Awad No 1. Notwithstanding the Court's observations as to the "force" of Nouhad's submissions based on ss 56 and 57 of the Civil Procedure Act 2005 (NSW), the Court permitted Michael to "prosecute" the alternative relief, as pleaded, upon the basis, inter alia, that the "cross-claimant had indicated that he did not envisage any further evidence being called in support of the alternative relief". The Court determined, in directions, that no further evidence would be allowed except by leave having regard to "concession made by counsel during the hearing"; plainly a reference to counsel's submissions that Michael would not call further evidence on the alternative relief (as reflected in [394] of the judgment) as a basis upon which the alternative relief may go forward. 5. As earlier mentioned, there was a deliberate forensic decision to defer the hearing of the alternative claim (although no formal application was made for separate hearings) without disclosing properly the basis for the alternative relief. Similarly, there was a deliberate forensic decision not to call evidence of valuations. Counsel's concessions as to not calling evidence were given at the close of the proceedings in circumstances where it was plain that an application to call such evidence could be adverse to the application to prosecute the alternative application. Again, this occurred in circumstances where counsel for Nouhad had expressly raised the prospect of further evidence, including valuation evidence, in resistance to the Court allowing Michael to prosecute the alternative claim. 6. The proposition that time and costs could be saved by separating out the alternative claim, as submitted by Michael, is doubtful when that proposition is examined in the light of the fact the evidence that would bear upon the establishment of the trusts would necessarily have derived from the evidence given by Michael. 7. There is no explanation for the forensic decision taken by Michael other than the bare proposition that the decision was taken under advice of counsel. It is not submitted and Mr Neagle gives no evidence that the advice was erroneous or incompetent. It is plain the approach adopted was made upon instructions. 8. The assessment as to the calling of the further evidence should be considered not only in the light of the question of notice, but in the light of significant questions as to the prospects of Michael making good the claims for equitable relief based upon the trusts with respect to pars 3 and 4 of the alternative claim in the light of the evidence before the Court. I will now discuss that issue below.
Counsel for Nouhad advanced submissions that, if Michael was permitted to prosecute the alternative claim upon the evidence presently before the Court (aside from valuation evidence) it should be found that the alternative claim was without merit.
In the context of the threshold issues, the Court is not dealing with the merits of the claim, per se, but it was nonetheless appropriate for counsel for Nouhad to point to the lack of prospects for success of the alternative claim based on the trusts in the context of Michael essentially seeking an indulgence to press the alternative claim in the circumstances earlier discussed in this judgment (whether adequate notice had or had not been given) and an application for leave to call expert evidence (see as discussed above). This is particularly so given, as I have mentioned, the Court's previous decision to permit the alternative claim to go forward in Awad No 1 was predicated upon Michael's then stated basis for the claim, a presumed notice of the basis for the claim based on the pleadings (the Court has not in this judgment ruled upon the scope of the pleadings as such), and the contentions of counsel for Michael as to whether evidence would be called on the alternative claim.
As to the question of prospects of the alternative claim based upon the trusts, I have earlier set out the components of Awad No 1 relied upon by Michael together with his submissions as to how upon the existing evidence (and findings of the Court in Awad No 1), the alternative claims based on the trusts may be established. I have also mentioned that counsel for Michael elected to make no reply to the further supplementary submissions of Nouhad bearing upon that issue.
The submissions by Nouhad as to the particular evidential basis for doubting the merits of the alternative claim based upon the trusts were summarised and extracted at [46] and [47] above.
I accept the contentions by counsel for Nouhad in that respect provide a sound basis, with respect to the alternative claim based on the trusts, for doubting the prospects for success of that claim. I note, in particular, that I do not accept, based upon my findings in Awad No 1 that it was "extremely unlikely", as submitted for Michael, that Michael would have undertaken having a formal commitment "without some agreement or undertaking with his parents at the time that in return he would receive a beneficial interest in the property". The findings of the Court in Awad No 1 at [385(4)] and [385(7)] (as extracted above) are apposite. Further, I accept the submission of Nouhad (based on those conclusions and the findings at [385(2)] of Awad No 1), and the absence of any urging by Tony and Nouhad to complete the renovations, that it would not be reasonable for the Court to infer that payment for any renovations would be pursuant to a common intention to provide Michael with a beneficial interest in the property.
In terms of the question which immediately excited the Court's attention after the further supplementary submissions for Michael, namely, the receipt of expert evidence, I consider that the application for leave to read the affidavit of Mr Neagle with the accompanying expert report should be refused for the reasons given above. It is not in the interests of justice that the leave be given to Michael.

The Alternative Claim: Para 9 of the Relief Claimed

I turn then to the claim for relief in para 9 of the relief claimed.
This claim attracted, by far, the least attention of the parties in the proceedings.
By para 9 of the relief claimed, Michael sought, without more, equitable damages. In the pleadings (at para 11), Michael claimed "repayment of the payments as equitable damages" as well as "damages resulting from his ejectment from the property, further particulars of which will be provided in due course, together with interest". No such particulars were before the Court. Nor were submissions made, as such, regarding damages arising from ejectment from the property.
In the further supplementary submissions for Michael, counsel stated that the submissions were made "as to the alternative relief claimed in paras 3 and 4 of the Cross Claim". Nothing is said, of substance, regarding the claim in para 9 until the conclusion of the submissions where it was contended (at para 33) that, if the Court would not impose "a Baumgartner type constructive trust", the Court should "at least" grant to Michael an equitable charge or lien over the property, thereby "securing the repayment of those payments to him totalling about $80,000". Reliance was placed, in that respect, upon Giumelli and Sidhu.
In reply, Nouhad submitted that no relief on the basis of an equitable charge or lien had been pleaded. Nothing was said in reply by Michael to that submission.
Counsel for Nouhad made three submissions in respect of Michael's claim for relief on the basis of an equitable charge or lien. First, no relief on that basis was pleaded. Secondly, the entitlement to an equitable charge or lien was suggested to be on the same grounds as the constructive trust. If the claim for a constructive trust fails, so does the claim for an equitable charge or lien.
A pleading for equitable damages does not allow a claim for an equitable lien as the two remedies have different grounds in law. Equitable damages are awarded under the Court's power in s 68 of the Supreme Court Act 1970 (NSW) where specific performance or injunction would otherwise be awarded: Madden v Kevereski (1983) 1 NSWLR 305 at 307 (per Helsham CJ in Eq). An equitable lien arises as a security for actual or potential indebtedness. The nature of an equitable lien was discussed by Deane J in Hewitt v Court (1983) 149 CLR 639; [1983] HCA 7 at 663: An equitable lien is a right against property which arises automatically by implication of equity to secure the discharge of an actual or potential indebtedness.
As to the second, even if this claim, as advanced in the further supplementary submissions for Michael had been properly pleaded, I agree that it would appear from the limited submissions advanced by Michael, with respect to this claim, that the entitlement to an equitable charge or lien was proposed upon the same grounds as the trusts. Counsel for Nouhad submitted that "if the Court is not satisfied that a constructive trust can be established, there is no basis for the Court to impose an equitable change or lien over the Property in favour of the Cross-Claimant". In principle, that submission must be accepted but the Court has confined its deliberations and the threshold issues as to the prospects of success of the claims predicated on that basis. Nonetheless, having regard to the findings of the Court as to those claims, if prosecuted on that basis, Michael's claim under para 9, must be described as weak.
The third basis identified by Nouhad in resisting this claim is also of substance. Nouhad submitted that, if Michael's case is simply that there is proof of the existence of the payment of money to his parents (putting aside issues concerning loans), Michael had failed to identify any authority to support that constituted an equitable lien or charge.
Counsel for Nouhad did not submit, as such, that an equitable lien or charge is not known to law as a form of equitable relief: see Morris v Morris [1982] 1 NSWLR 61 at 63-64 (per McLelland J). Rather, she referred to the content of the limited submission advanced by Michael in support of this contention which is very much peripheral to that necessary to establish an equitable lien or charge. The authorities referred to by Michael do not seem to be on point, namely, Giumelli and Sidhu (or at least their relevance was not identified). Further, Michael did not either identify how unconscionability, in this context, was to be established or its basis (see Morris v Morris at 63-64 (per McLelland J); Hewett v Court at 668 (per Deane J)), or, the requisite relevant connection between the loan taken out and the property (see Hewett v Court at 668 (per Deane J); Morris v Morris at 63-64 (per McLelland J)), particularly in light of the findings of the Court in Awad No 1 at [385(2)] and [385(4)].

CONCLUSION

In the circumstances, I consider Nouhad is correct to submit that leave to adduce the evidence of Mr Neagle, beyond that necessary to determine the threshold issues, should be refused.
I further accept the submission that it is not in accordance with the requirements of ss 55 and 56 of the Civil Procedure Act, or more generally the interests of justice, that Michael should be granted such leave, particularly having regard to the Court's resolution of the threshold issues.
That conclusion suggests that the alternative claim as brought with respect to paras 3 and 4 of the relief claimed may be dismissed. (It may be noted in that respect that, as earlier mentioned, the relief under para 3 was predicated upon the same basis as the relief under para 4).
There are other factors pointing to such an outcome.
Whilst the Court has not resolved the merits of the alternative claim (vis-à-vis paras 3 and 4 of the relief claimed) per se in this judgment, the threshold issues have been determined adversely to Michael.
Further, the Court's judgment in Awad No 1 to allow the alternative relief to proceed at the close of the proceedings was predicated upon the concessions made by counsel upon the final day of hearing. The departure from those concessions removes important bases upon which the Court entertained the alternative claim after the close of the proceedings. No explanation or proper basis has been demonstrated by Michael for leave to be granted in those circumstances.
As to para 9 of the relief claimed, there is a disjunct between the pleadings and the basis for the relief sought in Michael's further supplementary submissions (and, in any event, further difficulties with the claim discussed above).
It follows that the question of dismissal also arises in that context as well.
Costs of the alternative claim were dealt with in Awad No 1 upon the basis that any prejudice suffered by Nouhad would be met by an order for costs, but otherwise costs of those claims were reserved.
Having regard to the determination of the threshold issues, and when viewed in that light, Nouhad should have costs of the disposition of those issues and, subject to hearing from the parties as to the final disposition of the proceedings, costs of the alternative claim.

DIRECTION

The Court makes the following directions: 1. Counsel for Nouhad shall provide short minutes of order reflecting this judgment and as to the final disposition of these proceedings within 14 days of the publication of this judgment. 2. In the event of any dispute as to the form of the orders proposed in accordance with (1) above: 1. Nouhad shall file and serve submissions in support of the proposed orders, including as to costs, together with any evidence relied upon as to costs within 14 days of the publication of this judgment. 2. Michael shall file and serve alternative orders and submissions and evidence (as to costs) in support thereof within 28 days of the date of the publication of this judgment.

Endnote

The transcript of the proceedings attributed this statement to Mr Glissan when plainly it is a submission made on behalf of Nouhad. 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: 03 February 2020

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