Blacket v Barnett

une 1995, unrep) McGrath v Troy [2010] NSWSC 1470 Milling v Hardie [2014] NSWCA 163 Olsson v Dyson (1969) 120 CLR 365 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Priestley v Priestley [2017] NSWCA 155 Ramsden v Dyson (1866) LR 1 HL 129 Re Hodgson (1885) 31 Ch D 177 Riches v Hogben [1985] 2 Qd R 292 Robinson v Gollan [2012] NSWSC 51 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 Svenson v Payne (1945) 71 CLR 531 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 at 346; [1990] HCA 8 The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 The Nominal Defendant v Cordin [2017] NSWCA 6 Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Wallis v Wallis [2017] SASC 91 Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unrep) Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Willmott v Barber (1880) 15 Ch D 96 Texts Cited: R P Meagher, J D Heydon and M J Leeming, Meagher Gummow & Lehane's Equity Doctrines & Remedies (4th ed 2002, Butterworths) P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Category: Principal judgment Parties: Mr Peter Wilfred Blacket (Plaintiff) Mr Graham Keith Barnett (first Defendant) Mr Christopher Glen Gillis (second Defendant) Mr John Frederick Hiscox (third Defendant) Representation: Counsel: Mr L Ellison and Mr D Liebhold (Plaintiff) Mr S Balafoutis and Ms C Hamilton-Jewell (Defendants)

Solicitors: Bartier Perry (Plaintiff) Carneys Lawyers (Defendants) File Number(s): 2016/330190 Publication restriction: Nil

The Claims and the Defences

1. HIS HONOUR: These proceedings concern a claim by the Plaintiff, Peter Wilfred Blacket, that the Defendants, Graham Keith Barnett ("Mr Barnett"), Christopher Glen Gillis ("Mr Gillis") and John Frederick Hiscox ("Mr Hiscox"), as the legal personal representatives of Yvonne Elaine Thompson ("the deceased"), hold the whole of her estate on trust for him. In making the claim, the Plaintiff relies upon the branch of equitable proprietary estoppel known as estoppel by encouragement. In the alternative, the Plaintiff claims that the Defendants hold certain land, situated at Undine Street, Russell Lea, in New South Wales ("the Undine Street property"), the sole proprietor of which land was the deceased, on trust for him, upon the same basis, and an order that they transmit that property to him. In the further alternative, the Plaintiff makes a claim for equitable compensation. In summary, the Plaintiff seeks protection from the detriment which he asserts would flow from his change of position if the promise or representation that led to it were deserted.
2. The Plaintiff does not assert a binding contract with the deceased to leave him her property by Will. He does not seek to establish that his conduct and the conduct of the deceased, viewed in the light of surrounding circumstances, demonstrates a tacit understanding, or agreement, and that the conduct is capable of establishing all of the essential elements of an express contract: Priestley v Priestley [2017] NSWCA 155 at [105] (Emmett AJA).
3. Most of the allegations of fact asserted by the Plaintiff in the Statement of Claim were not admitted by the Defendants. They explicitly denied, however, that the deceased had breached any obligation to the Plaintiff. They also denied that it would be unconscionable for them not to comply with what were said to be the "representations of the deceased".
4. The Defendants, in their Defence, also asserted that in certain Probate proceedings to which reference will be made, "the plaintiff failed to disclose the claim made in these proceedings in his defence, his affidavit and [in the] correspondence sent on his behalf" and that it was not until "on 26 August 2016, about 16 months after the deceased's death, the plaintiff's solicitor first informed the defendants of the plaintiff's claim made in these proceedings…". They rely "on laches and acquiescence and deny the plaintiff is entitled to the relief claimed".

Dramatis Personae

1. In order to enable the chronology of events to be more readily understood, I shall first identify the deceased, and then, the principal actors, some of whom gave evidence in the case. I shall provide some uncontroversial background to his, or her, relationship with, or involvement in the life of, the deceased.
2. The deceased was born in February 1925. Her husband, Austin William Thompson, died in about 1983. They had no children. The deceased died on 29 April 2015 aged 90 years.
3. By May 2014, neuropsychological assessment revealed that the deceased suffered "…broadly, mild deficits in attention span and verbal intellect; mild to moderate deficits in memory; and moderate to severe deficits in aspects of visuo-construction [involving the co-ordination of fine motor skills with spatial abilities] and executive functioning...while general intellect is not grossly impaired, objective testing reveals substantial deficits in areas central to independence and ability to make complex decisions": Ex. A2/167.
4. The deceased had one sister, Joan Crane, who predeceased her, having died in 2013. Mrs Crane had two daughters, being Julie and Jennifer, each of whom is a beneficiary under the Will of the deceased's mother, Ruby Spruit. Neither has played any part in the proceedings, but they are mentioned in the Will of the deceased, to which reference will be made.
5. The Plaintiff, Mr Blacket, is a real estate agent of some 50 years' experience. He owns, and operates, a real estate agency in Double Bay, Sydney, known as The Blacket Agency. In support of his claim, four affidavits made by him were read, the first being sworn 16 February 2016, the second being sworn 4 November 2016, the third being sworn 30 November 2016 and the last being sworn on 10 March 2017. He was cross-examined on many of the matters asserted by him in these affidavits.
6. The Plaintiff first met the deceased in 1965, when he advised Mrs Spruit on the sale of a property. However, it was not until the 1990's that he came to have increasing contact with the deceased. It was then that a friendship started to develop between them. He stated that "as [the friendship] developed over the years it became (at least from my perspective) akin to a mother - son relationship."
7. In his oral evidence, the Plaintiff stated that he and the deceased were "great mates": T46.07 - T46.10. He maintained that the relationship between them "intensified over the years".

The Probate Proceedings

1. For a number of reasons, including the assertion of the Defendants that the Plaintiff is precluded from all equitable relief because of laches, and also because of an Anshun estoppel, it is necessary to trace the history of earlier Probate litigation between the parties.
2. The 2003 Will appointed the three Defendants as the executors and trustees. Following the death of the deceased, Mr Barnett met the Plaintiff and Ms Blacket at the Janet Street property, on either 2, or 9, May 2015. At this meeting, the Plaintiff told him that he thought the deceased had forgotten that she had made a Will and that she had said to him that she wished to make a new Will. When asked by Mr Barnett for the keys to the Janet Street property, the Plaintiff refused, saying: "I think there is another Will with a local solicitor around here. I am a Power of Attorney and I want to make enquiries about any other wills. I brought another solicitor here to do another Will for her…"
3. During this conversation, the Plaintiff did not inform Mr Barnett of any of the conversations with the deceased, about which he has given evidence in these proceedings. Nor did he identify any assurances, or promises, said to have been made to him by the deceased in regard to the distribution of her estate.
4. By letter, dated 21 May 2015, sent to Mr Barnett, Mr Basha referred to the 2003 Will, to the fact that the Plaintiff had been appointed as the deceased's sole Attorney and enduring Guardian and requested "pursuant to s 54(2) of the Succession Act 2006 (NSW), that you provide us with copies of all Wills and other documents purporting to be Wills, amendments to Wills, and notes held by Mr John Hiscox relating to the testamentary intentions of the deceased" (Ex A2/254).
5. On 29 July 2015, the Defendants filed a Summons for Probate in common form of the 2003 Will. On 30 July 2015, the Plaintiff filed a general Probate caveat in the Supreme Court Registry, which caveat stated: "I require that: 1. No grant be made in the estate of [the deceased]…unless I am given the opportunity to be heard on the question of whether a declaration as to the Court's satisfaction under section 8 of the Succession Act 2006 should be made in respect of a document made by the deceased. 2. My interest is beneficiary under a document or documents."
6. The Plaintiff did not assert, as the basis of the caveat, any other interest in the property of the deceased.

The 2003 Will and the Estate of the deceased

1. In summary, the 2003 Will provided in Clauses 3 to 7: 1. a devise of a property at Undine Street, Russell Lea (called Drummoyne in the Will), subject to any mortgage or other encumbrance that may affect the property at the date of death, to Lyndon Bryce Barnett and Tristan Jerome Barnett, as survived the deceased, and if more than one, in equal shares as tenants in common; 2. a bequest of the deceased's Daimler car to Mr Hiscox; 3. a bequest of all her of shares, in various listed companies, to Adam Christopher Gillis and Guy Laurence Gillis, as survived the deceased, and if more than one, in equal shares as tenants in common; 4. a bequest of personal effects to Mr Hiscox and Mr Barnett, as survived the deceased, and if more than one, in equal shares as tenants in common; 5. a bequest of the rest and residue to Mr Hiscox absolutely.
2. The deceased, in Clause 8 of the 2003 Will, referred to her decision to make no provision for her sister, Joan, or to Joan's two daughters, Julie and Jennifer, for reasons expressed therein.
3. The Plaintiff was not referred to, or identified, in any way, in the 2003 Will.
4. In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, value of $2,249,158. The estate was said to consist of the Undine Street property ($1,800,000), cash in a bank account ($172,759), shares in listed companies ($271,399), a car ($2,000) and personal belongings, including china, glass, silverware and jewellery ($3,000). (I have omitted, and shall continue to omit, a reference to cents. This will explain any apparent mathematical miscalculations.)
5. At the date of hearing, the parties agreed that the current value of the Undine Street property was $2.3 million: T2.10 - T2.20; that there was $94,423, held in bank; and that the shares in listed companies had a value of $247,000: T97.26 - T97.28.
6. The Undine Street property is now registered in the name of the three Defendants as executors.

The Janet Street Property

1. The deceased's mother, Ruby Spruit, was the registered proprietor of the Janet Street property, and the under the terms of her Will, made on 18 April 1974, it was held upon trust for the deceased for life. The deceased was entitled to reside therein, or receive the income therefrom, during her lifetime. Orders had been made by this Court, in 1998, giving power to the Trustee of the trusts in Mrs Spruit's Will to apply proceeds of the sale of another property, owned by Mrs Spruit, in paying for repairs to the Janet Street property.
2. There was much evidence about the state of repair of the Janet Street property and whether the Plaintiff had played any part in dealing with the trustee, Mr Gaydon, concerning its state of repair and the maintenance needed. This issue arose because the Plaintiff had stated in his affidavit in reply that he "…too, corresponded with Peter Gaydon in relation to Mrs Thompson's home, particularly in relation to the carport…..Mr Gaydon also contacted me after he heard of Mrs Thompson's death".
3. There was also evidence about the requests made to effect repairs to the Janet Street property. In a letter dated 15 March 2002, sent by Mr Gillis' firm, C G Gillis & Co, the residence was described as "…in desperate need of repair and refurbishment". In another letter dated 28 May 2003, Mr Gillis provided, amongst other things, a "[N]ew Quote for repairs to the property at Drummoyne" and requested advice when Mr Gaydon was "available to meet with the writer and Mrs Thompson to discuss the repairs to the property which are now urgent…".
4. Other relevant correspondence between Mr Gillis and Mr Gaydon is dated 31 October 2003, 6 February 2004, 2 December 2004, 23 July 2007, 19 March 2008, 2 May 2008, 5 May 2008, 21 December 2008, 8 April 2010, 10 May 2010, 20 May 2010, 17 June 2010, 29 October 2010, 12 November 2010, 23 November 2010, 20 December 2010, 5 April 2011, 20 April 2011, 29 April 2011, 15 August 2011, 7 September 2011, 10 September 2011, 20 December 2011, 10 February 2012, 23 February 2012, 13 March 2012, 11 May 2012, 2 October 2012, 21 October 2012, passing between Mr Gaydon and Mr Barnett or his firm (MacKellar Crain & Barnett).
5. In relation to the Plaintiff, there is a reference in a diary entry of the Plaintiff of 29 April 2011 that states "Carport Thompson".
6. On 2 May 2012, Mr Gaydon wrote to the Plaintiff regarding the Janet Street property (concerning maintenance required to the carport). There is no response to that letter in the evidence. This prompted Mr Gaydon to write a second letter, dated 28 May 2012, to the Plaintiff. On 13 June 2012, the Plaintiff responded, by email, to the letter dated 28 May 2012, from Mr Gaydon, stating that "I raised the issue of the carport with Mrs Thompson again today". (This is confirmed in a reference to "Mrs Thompson" in a diary entry of the Plaintiff dated 13 June 2012.)

The Undine Street Property

1. The circumstances in which the deceased came to own the Undine Street property are not disclosed in the evidence. There was also some evidence about the state of repair of this property.
2. On 19 November 2007, the City of Canada Bay Council issued a "Notice of Intention to Give an Order" in relation to the Undine Street property. The basis of that order is not disclosed.
3. By letter dated 11 December 2008, addressed to Mr Barnett, the City of Canada Bay Council noted that despite "….your written representation dated 8 December 2008", the Council has issued an Order "for overgrowth" in relation to the Undine Street property. It required the "removal of all overgrown vegetation or vegetative matter…" stating that "the land or premises are not in a safe or healthy condition".
4. On 10 November 2009, the City of Canada Bay Council issued another "Notice of Intention to Give an Order" in relation to the Undine Street property on the basis that it "…is now in possession of evidence that the … property is overgrown". It required the "removal of all overgrown vegetation or vegetative matter…" stating that "the land or premises are not in a safe or healthy condition".
5. The Plaintiff gave evidence that he had taken steps to arrange for a gardener to attend the Undine Street property in February 2009 in order to remove a tree and clear the vegetation surrounding the property.

The Evidence of the Plaintiff and his witnesses

1. It is next necessary to set out the evidence given by the Plaintiff, Mrs Blacket, Ms Blacket, and Dr Grimsdale, upon much of which each was cross-examined.
2. In his first affidavit, as previously stated, the Plaintiff gave no evidence about any conversations said to have been had with the deceased, upon which reliance was placed. However, this affidavit had been prepared for the Probate proceedings, to which reference has been made.
3. The Plaintiff did refer to being a friend of the deceased and also her Attorney and Guardian. He referred to the deceased asking him "to contact David Sharpe of Dibbs Barker about making a Will for her" and when Mr Sharpe informed him that "he no longer did Wills", that he contacted Mr Mattick, upon Mr Sharpe's recommendation, and "arranged for him to attend the deceased's residence for the purpose of preparing a Will for her".
4. In his second affidavit, after referring to his first meeting with the deceased, the Plaintiff stated that he met the deceased again in the "1990's (or possibly the late 1980's), when she started to visit his office, and on occasions "she had my secretary do things for her that were administrative in nature in relation to correspondence such as copying or faxing documents". (He did not ask the deceased to pay him for this work.)
5. It was also, at this time, that he started visiting her at the Janet Street property "about once every three months…at her request, usually to convey her mail…or when there was something that needed to be done around the house that she couldn't do".
6. The Plaintiff went on to state other things that he started to do for the deceased "[B]eginning at some time after 2004", such as "to look after [her] two dogs at my home for up to several months at a time when she was in hospital or convalescing". He also stated that "[T]here were a considerable number of veterinary bills during the time that Mrs Thompson's dog stayed with me that I paid", only some of which were reimbursed.
7. He did not, at any time during the proceedings, provide a schedule of veterinary bills paid by him, for which he was not reimbursed. Bearing in mind the alternative claim for equitable compensation, his failure to do so, without explanation, is a relevant consideration.
8. The Plaintiff said that in 2008, the deceased gave him a key to the Janet Street property and that "[F]rom about 2008….my visits to her home increased in regularity... from this time I visited her weekly", the purpose of the visit being to bring her food or to have her prescriptions filled at the chemist. He also stated that she "reimbursed me in cash for the shopping that I did for her and sometimes she wrote me a cheque when the amounts that I had spent exceeded the cash that she had". He also said that she did not always do so, and that "I estimate that over the years I spent several thousand dollars on behalf of Mrs Thompson for which I was not reimbursed". The calculation of this estimate, which is vague, was not disclosed.

The Defendants Evidence - Additional Matters

1. Mr Barnett stated that from about mid-2006, until January 2008, at the deceased's request, he would check her post office box once every one or two weeks and send to her the mail he retrieved from that post office box. The year before, he had started to do her grocery shopping for her, sending the groceries, together with the receipt for its costs, to her, by taxi. The deceased would reimburse him, usually, by cheque, every few weeks or sometimes, months. In addition, he would do other errands for her, at her request, such as depositing cheques into her bank account.
2. It was Mr Barnett who principally corresponded with Mr Gaydon in relation to renovations and repairs to the Janet Street property and for reimbursement for maintenance expenses to that property. It was he who arranged lawn mowing services for both the Janet Street property and the Undine Street property. It was also Mr Barnett who corresponded with the City of Canada Bay Council in relation to the Undine Street property.
3. Even after the rescission of the Power of Attorney, he continued to provide some assistance to the deceased, particularly in relation to the two properties. This followed Mr Barnett informing the deceased that he was thinking of selling his solicitor's practice. At the time she rescinded the Power of Attorney, she stated that she was going to appoint Mr Hiscox.
4. In about 2013 or 2014, the deceased gave Mr Barnett instructions to write to the Plaintiff to advise him that the Power of Attorney she had granted to him had been revoked.
5. Mr Barnett gave evidence that following the deceased's death, he was contacted by the Plaintiff, who said that he attended at the deceased's home and had found her dead.
6. Mr Barnett asked whether any Will later than the 2003 Will appointing him and the other Defendants had been located, to which the Plaintiff replied that there was an unsigned Will at the Undine Street property. A meeting was arranged on either 2 or 9 May 2015. I have referred to the conversation that occurred at the meeting earlier in these reasons.
7. Mr Barnett gave evidence of the deceased handing him the Certificate of Title to the Undine Street property prior to 2008, saying that she was thinking of selling it, and wanted him to hold it for her because she did not want to lose it.

Documents relied upon by one or other of the Parties

1. On the Friday prior to the hearing, albeit later than had been directed, the parties delivered to the Court three folders of documents in date order, comprising about 625 pages of documents, from different sources, including diary entries of the Plaintiff, medical records and records produced by different solicitors. The three folders were marked Ex. A1, Ex. A2, and Ex. A3 respectively. The manner in which the Exhibits were prepared has proved extremely useful and the Court is grateful for the effort of the solicitors in completing this onerous task.
2. I have referred, and shall now refer, to some of the documents which formed part of the evidence. Unless otherwise identified, the documents are from one, or other, of these three exhibits. It is not necessary, in the circumstances, to identify the reference in the exhibits.

Discussions regarding Wills

1. It was accepted that, with the exception of the 2003 Will, there is no document, written, or signed, by the deceased, which reveal her testamentary intentions. There are also no documents written, or signed, by the deceased, which support the version of events given by the Plaintiff.
2. It should also be noted that the Plaintiff accepted that he had not taken, or made, contemporaneously, any written record of any of the conversations with the deceased about which he had given evidence in relation to how she proposed to leave her estate: T83.35 - T83.42.
3. Importantly, Mr Hiscox specifically denied having been given any "notes" written by the deceased, or having made any notes himself, at the request of the deceased, whilst she was in hospital, that disclosed her intention to leave the whole or any part of her estate to the Plaintiff.
4. The Plaintiff did not call any witness who had heard the deceased make the statements to him, upon which he relied (other than, perhaps, Mr Mattick, to whose evidence I shall come).
5. The Plaintiff accepted that the statements he asserted the deceased had made to him were made in the context of "her saying to you that she first must make a Will, wasn't it? "I must make a Will", yes…": T95.40 - T95.42. He accepted, also, that he believed that she had not made any Will: T72.7 - T72.8.
6. There is evidence of discussions that the deceased had about making a Will that are really not the subject of any dispute. I shall refer to documents of third parties, where available, that appear to have been prepared following discussions with the deceased, albeit that she did not sign any of the documents. I shall also refer to the circumstances surrounding the giving of instructions for the making of the 2003 Will.
7. In 2003, the deceased asked Mr Barnett to draft a Will for her. She said that he had been very good to her and wanted to leave her house to his two children, Lyndon and Tristan. It was Mr Barnett who referred the deceased to the solicitor, Mr Norwood.
8. During the first half of 2003, the deceased also said to Mr Gillis, on a number of occasions, that she wanted to make a Will, and in that Will, leave her home to him. He thanked her, but refused, saying that he did not want her to do that.
9. Subsequently, Mr Norwood contacted Mr Gillis, whilst he had the deceased with him. Mr Norwood informed Mr Gillis that the deceased wished to leave Mr Gillis her home. Again, Mr Gillis refused, but added that if the deceased remained of that view, then he "would rather that she left her home to my father's grandchildren, my two boys. Yvonne was very fond of my father".

Medical Records

1. Although this is not a case involving the capacity of the deceased, her medical condition and some of the medical records are relevant to the matters for determination. Amongst other things, there is a reference in some of the records to the Plaintiff and to Mr Hiscox. In addition, the records reveal the occasions when the deceased was admitted to Hospital, or was otherwise away from the Janet Street property.
2. The deceased presented at the Royal Prince Alfred Hospital Emergency Department on 2 January 2007, after developing right upper limb weakness and difficulty mobilising. She was diagnosed as appearing "to have had a lacunar stroke secondary to small vessel disease".
3. She was admitted to Balmain Hospital shortly thereafter, and was discharged on 22 February 2007. The Discharge Plan from the Hospital identified Mr Barnett as the deceased's "Next of Kin".
4. A discharge letter from the Home based therapy team at the General, Geriatric & Rehabilitation Medicine unit of Concord Hospital, dated 12 July 2007, stated "[the deceased] reports that she is being cared for by a friend on the central coast, and that is returning there in the next few days".
5. The deceased was admitted to Concord Repatriation General Hospital on 20 July 2009 and was released on 22 July 2009. In the Aged Care Discharge Referral, there is a reference to "friends help with shopping and cleaning". The "friends" are not identified by name.
6. There is evidence that the deceased was admitted to Concord Hospital, in all probability, on 22 September 2011 (Ex. A1/74). When she was discharged is not clear. However, in Clinical Progress Notes, dated 3 October 2011, of the Sydney Local Health Network, there is a reference to: "Contacted by patient's friend, Peter last night - Yvonne threatening to d/c (discharge) as unhappy with everything - He is concerned that she cannot manage on her own."
7. In the Clinical Progress Notes for 4 October 2011, there is a reference to: "D/W (discussion with) Peter Blacket -> Friend - Happy to help facilitate COMPACS (Community Packages Programme) - Pt keen for discharge tonight"
8. In a medical record, dated, 27th February 2012, the following passage appears (Ex.4): "… Thank you for assessing Yvonne Thompson, age 87 yrs, who has had moderately severe back pain for several days which was sudden in onset ? due to a crush fracture. She has osteopoosis (sic) with several crush fractures previously noted on lateral CXR. She has been taking paracetamol for pain relief with little improvement but is now constipated with bowels not open since last Tuesday. She is very frail and lives alone. She has previously declined services and manages with the assistance of friends and neighbours. There is no close family."

Plaintiff's Diary Entries relating to the deceased

1. There are a number of diary entries under the hand of the Plaintiff in the diaries he produced: 1. The first is dated 19 February 2009 and states "Bank Mrs Thompson's cheque". In the "Summary of some Cheques", which appears in the evidence, there is no cheque identified. (The Plaintiff was unable to identify the cheque to which the diary entry relates.) 2. There is one dated 23 February 2009 and states "Bank Mrs Thompson's cheque". Again, in the "Summary of some Cheques", there is no cheque identified. (The Plaintiff was unable to identify the cheque to which the diary entry relates.) 3. There is one dated 25 October 2010 which states "Ring and see Mrs Thompson". 4. There is one dated 3 November 2010, which states "11:00 a.m. Mrs Thompson at 37 Janet Street". 5. There is one dated 10 November 2010 and states "11:00 a.m. Denis at 33 Undine St". (This reference is to the photographer used by the Plaintiff in his business and refers to a request made by the deceased to the Plaintiff to assist her to sell the Undine Street property: T19.45 - T20.07.) There are other diary entries relating to the photographs of the Undine Street property being taken on 22 November and 13 December 2010. 6. There is then one dated 22 November 2010, and simply states "Mrs Thompson's dog". 7. There is one dated 3 December 2010 and states "Mail Mrs Thompson". 8. There is one dated 6 December 2010 and states "Mail Mrs Thompson". It also states "3:00 p.m. Mrs Thompson's dog to vet". (A similar entry relating to the vet occurs on 13 December 2010 and 20 December 2010.) 9. There is one dated 2 February 2011. It simply refers to "Mrs Thompson". 10. There is one dated 3 February 2011 and states "Mrs Thompson and bills". 11. There is one dated 11 February 2011 and states "Mrs Thompson and cheques". 12. There is then one dated 14 March 2011 and states "11:00 a.m. Mrs Thompson". 13. There is one dated 29 April 2011 and states "Carport Thompson". 14. There is one dated 17 June 2011 and states "Vaughan and Thompson re Janet Street". 15. There is one dated 20 June 2011 and states "Mrs Thompson and Vaughan". (The Plaintiff gave evidence that Mr Vaughan was a builder who attended the Janet Street property in respect of work to be done to the carport.) 16. There is one dated 21 June 2011 that simply states "Thompson". 17. The next one is dated 27 June 2011 and states "Vaughan Tomorrow Janet St". 18. The next diary entry is dated 28 June 2011 and states "11:30 P/U Mrs Thompson". 19. There is one dated 30 August 2011 and states "Thompson: Dr Joanne Grimsdale (and two telephone numbers)". (There is a later references to "Dr Peter Corte for Mrs Thompson" on the same date, a reference on 22 September 2011 to "12.30pm Dr Corte", with an address and telephone number identified, and a reference to "Dr Corte" again on 29 November 2011.) 20. There is one dated 21 September 2011 and states "Mrs Thompson tomorrow". 21. There is an entry on 9 October 2011 to "Vet Peta" and there is an address and phone number identified. (There is also a later reference on 11 October 2011 to "10.30 Peta dog at Ryde".) 22. There is then one dated 24 October 2011 and states "Re Thompson carport and Wednesday". 23. The next diary entry is dated 27 October 2011 and states "Thompson". 24. There is then one dated 9 November 2011 and states "Ring Mrs Thompson". 25. There is one dated 3 December 2011 and states "Mail Mrs Thompson". 26. The next diary entry is dated 6 December 2011 and states "Cheque to Thompson". This is followed by a diary entry on 7 December 2011 that states "Thompson and Telstra cheque". 27. There is an entry on 8 December 2011 which states "Grimsdale" and lists the phone number for Dr Grimsdale's medical practice. 28. There is then one dated 30 December 2011 and states "Dr Rimmer for Thompson". 29. The next diary entries are dated 8 February 2012, which states "P/U Dentist Mrs Thompson"; dated 15 February 2012 and states "P/U Mrs Thompson at Dentist"; and 22 February 2012 and states "Mrs Thompson for Dentist". 30. There is then one dated 28 February 2012 and makes reference to being admitted to Concord Hospital and includes the Ward number and telephone numbers. A similar entry appears on 5 March 2012. On 12 March 2012, there is an entry identifying someone at Concord Hospital with a telephone number. 31. The next diary entry is dated 13 March 2012 and states "2pm, 37 Janet Street, Mrs Thompson". 32. The next diary entry is dated 15 March 2012 and states "Check Trust a/c for….need Thompson cheque in". 33. The next diary entry is dated 19 March 2012 and simply states "Mrs Thompson". 34. The next diary entry is dated 21 March 2012 and states "P/U Mrs Thompson". 35. The next diary entry is dated 27 March 2012 and states "Ring Mrs Thompson". 36. The next diary entry is dated 4 April 2012 and states "P/u Mrs Thompson Dentist apt 11:30". 37. The next diary entries dated 20 April 2012 and 13 June 2012 simply states "Mrs Thompson". 38. There is then one dated 11 September 2012 and states "[phone number - the same number which had been listed in an earlier diary entry as being that for Concord Hospital] Thompson". 39. There is then one dated 18 October 2012 and states "1130ish Mrs Thompson". 40. There is then one dated 29 October 2012 and states "Mrs Thompson + post to Graeme Barnet". 41. There is then a diary entry dated 6 June 2013 and states "Thompson & Vaughan garage". 42. There is then one dated 17 June 2013 that states "Thompson". 43. There is an entry on 13 August 2013 (and also a later reference on 31 March 2014), to the deceased's sister, stating "Joan Spruit/Crane". 44. There is then one dated 21 August 2013 and states "Mrs Thompson & Steve". 45. There is then ones dated 29 August 2013, 29 October 2013, 21 January 2014 and 22 January 2014, each of which simply states "Mrs Thompson". 46. The next entry is on 31 January 2014 which states "The Willows re bill". 47. There is then one dated 4 February 2014 and states "R Mary re Thompson". 48. The next entry is on 3 March 2014 which states "Thompson car rego". 49. There is then one dated 26 March 2014 and states "Mrs T". 50. There is then one dated 24 July 2014 and states "David Sharpe Solicitor [phone number listed]". 51. There is then one dated 26 July 2014 and states "Paul Mattick Solicitor Five Dock". 52. There is then one dated 28 July 2014 and states "Graeme Barnett Chelmsford Ave Lindfield" and "Searley Mrs Thompson's friend [phone number listed]" and "". 53. There is then one dated 30 July 2014 and states "Graeme Barnett" and "Mrs T mobile phone in home batteries". 54. The next entry is dated 4 August 2014 which states "Kinder Caring [phone number]" and "KinCare [phone number]" and "Home & community care [phone number]". 55. There is then one dated 11 August 2014 and states "R solicitor Mrs Thompson" and "R Jenny Social Worker visit Mrs T". 56. The next one is dated 12 August 2014 and states "12.45 Hacs at Thompsons". 57. There is then one dated 13 August 2014 and states "Paul Mattick [phone number listed]". 58. There is then one dated 15 August 2014 and states "Paul Mattick at Janet St". 59. The next one is dated 18 August 2014 and simply states "John Hiscox". 60. There is then one dated 21 August 2014 and states "Mrs Thompson niece Julie [phone number listed]". 61. The next entry is dated 27 August 2014 which states "Kincare" and then lists a name and a phone number. 62. There is then one dated 16 September 2014 and states "Thompson & KinCare". 63. There is then one dated 17 September 2014 and states "Thompson dog" and "415 Peta to vet, Lyons Road Drummoyne [phone number]". 64. There is then one dated 25 November 2014 and states "Jewellery to Mrs T". 65. There is then one dated 19 April 2015 and states "Re Mrs Thompson". 66. The next diary entry is dated 29 April 2015 and states "Graeme Barnett [phone number]" and "Found Mrs Thompson dead 3pm".

Some principles regarding the evidence to remember

1. In other cases involving a claim on the estate of a deceased person in which conversations are said to have taken place with the deceased person that are alleged to give rise to legal or equitable rights, I have referred to a number of principles that are required to be remembered: see, for example, Evans v Braddock [2015] NSWSC 249. For the benefit of the parties, I shall repeat some of what I said, and where necessary, amplify the principles, by reference to subsequent cases.
2. It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548 - 549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly deny, the specific allegations made by the Plaintiff, in particular.
3. That need may even be greater where the person giving evidence of the conversations has a self-interest.
4. McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
5. Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence, in such circumstances, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."

Equitable Estoppel

1. An executory promise, unsupported by consideration, is, prima facie, revocable. However, some subsequent conduct of the intending donor, encouraging, or inducing, the intended donee to act to his prejudice, on the footing that property, or some interest in it, will become his, may make it unconscionable for the donor to withhold the property or the interest in it from the donee, and equity, on that ground, may hold the donee to be entitled to the property: Olsson v Dyson (1969) 120 CLR 365 at 376 (Kitto J).
2. Promissory estoppel, as its name indicates, is based on a non-contractual promise or assurance, which, in its orthodox form, becomes binding in equity, so as to restrain the promisor from enforcing his strict legal rights: Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388 at [70] (Handley AJA).
3. (I have not, and shall not, use the word "representation" which, it has been suggested, should be used to refer to statements about an existing or past fact. Reference may be made to a "promise or assurance" to describe the statements of future conduct which can give rise to an estoppel: Equititrust Ltd v Franks at [73] (Handley AJA).)
4. In this case, the Plaintiff pleads an active form of estoppel referred to as estoppel by encouragement, the essence of which type of estoppel is that the person seeking to assert it has been led to alter his or her position, detrimentally, in the belief that he or she would have an interest in the property of the promisee: Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 at [108].
5. In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7; Mason CJ and Wilson J, stated at 404, "a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person's land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances". Their Honours added, at 406, that a departure from the basic assumptions underlying the transactions must be unconscionable. That element was fulfilled by the party encouraging the opposite party in the assumption that a promise would be performed with knowledge that the other party was relying on that assumption to his, or her, detriment.

Equitable Compensation

1. The Plaintiff made no submissions on the principles relating to equitable compensation which was claimed as an alternative to a proprietary interest.
2. In Van Dyke v Sidhu [2013] NSWCA 198, a case in which on appeal, an entitlement to relief based upon finding proprietary estoppel was made, the following comments made by Barrett JA (with whom Basten JA and Tobias JA agreed) in determining the quantum of equitable compensation, at [139] - [140] are apt: "…an award of equitable compensation would, in this case, satisfy the appellant's equity. I am of the opinion, however, that the relevant measure - that is, the factor by reference to which the compensation is to be awarded - is not the quantum of the detriment suffered through reliance on the promises. As the Court of Appeal of Victoria recently observed in Harrison v Harrison [2013] VSCA 170 (at [159]), equitable relief in cases of proprietary estoppel must be "moulded around the engendered expectations". The monetary substitute for preclusion of the respondent from disappointing the expectation that his promises engendered in the appellant (that is, that Oaks Cottage would be given to her) should therefore be equal to the loss the appellant suffered because, contrary to that expectation, the property was not given to her. In the words of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (above) at 125: "This is a case for the fixing of a money sum to represent the value of the equitable claim of the respondent to the promised lot." The appellant's equitable claim was a claim to prevent departure by the respondent from his promises and thus to have the benefit of all action necessary to bring about a transfer of the relevant property to the appellant. The appellant should therefore have a sum equal to the value she would now have had the promises been fulfilled."
3. In Wallis v Wallis [2017] SASC 91, Kourakis CJ wrote, at [21]: "Equitable compensation in a case like this is an alternative remedy to the transfer of the promised property. Nonetheless the inquiry is much the same. The Court must examine the value of what the plaintiff would have been entitled to had the promise been fulfilled. An order compensating the plaintiff for that value clears the conscience of the defendants in equity. The compensation may be adjusted according to whether the relief granted is out of proportion to the detriment suffered by the plaintiff and whether the plaintiff has diminished his or her own equity."

Anshun Estoppel

1. The defence that the Plaintiff is estopped because of the species of estoppel known as Anshun estoppel, can be dealt with quickly, because, in my view, it does not apply.
2. The foundation of the principle described as Anshun estoppel (derived from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) was enunciated by Sir James Wigram VC in Henderson v Henderson [1843] EngR 917; 67 ER 313, at 319: "... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
3. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, French CJ, Bell, Gageler and Keane JJ, after explaining cause of action estoppel and issue estoppel, wrote, at [22]: "The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument."

Submissions

1. The Plaintiff's primary submission was that the whole of the estate, or alternatively, the Undine Street property, was held on trust for him, because the deceased had stated to him, over many years, that he would inherit her estate, or the Undine Street property, and, in reliance on those promises, he had acted to his detriment.
2. He relied upon the evidence of similar statements made by the deceased to Joanne Grimsdale, David Sharpe, and Paul Mattick, as corroborative of his claim. (Importantly, in this regard, it is to be noted that the Plaintiff did not call Mr Sharpe, and the statement to Mr Mattick, as known to the Plaintiff indicated an intention to consider the terms of any Will further.) Dr Grimsdale did not give evidence of having heard the deceased make any assurances to the Plaintiff.
3. The Defendants' counsel submitted that the claim that the deceased represented to the Plaintiff that she would leave all of her estate to him was inconsistent with at least three parts of the evidence: 1. First, Ms Blacket gave evidence that the deceased stated to her, in the presence of the Plaintiff, that she would have the Macquarie Bank shares: T47.27 - T47.29. This statement was inconsistent with any statement made to the Plaintiff that he was to receive the whole of the deceased's estate and any such statement had to be seen in the context that the deceased had also offered some of her property to the Plaintiff's daughter. In these circumstances, it could not be said that the deceased unequivocally stated to the Plaintiff that he would be left all of her estate. 2. Secondly, the Plaintiff gave evidence that he "hoped" that he and Ms Blacket would be left something and that he understood that Dr Grimsdale would be left the car: T82.20 - T82.22. The language expressed in terms of "hope" is inconsistent with an "expectation" that he would be left all of the deceased's estate. 3. Thirdly, any statement made by the deceased must be understood in the context of the Plaintiff's belief that the deceased had not yet made a Will: T71.1 - T72.11. The Plaintiff gave evidence that he told the deceased that she "must make a will": T48.11. Then the Plaintiff was present at the meeting between the deceased and Mr Mattick in which the deceased made clear to Mr Mattick that she was unsure about whether she would leave him her estate or any part of it. Accordingly, after the meeting on 15 August 2014, the Plaintiff could not reasonably have relied upon any statement of the deceased, that he would be left the deceased's estate. (Although not stated, even if the Plaintiff had not heard the statement made by the deceased to Mr Mattick, as he stated in evidence, the email sent by Mr Mattick to him could not have left the Plaintiff in any doubt that the deceased had not made any decision about the terms of her Will.) In response to this, the Plaintiff submitted that the statements on which he based his case were not statements made by the deceased to Mr Mattick. Moreover, the deceased's instructions to Mr Mattick were equivocal, in that her further consideration may well have concerned particular terms of the Will (e.g., nomination of executor, instructions as to burial, statements of wishes) rather than her intention, as recorded by Mr Mattick, "to leave everything to [the Plaintiff]".

Credibility of the Witnesses

1. It is appropriate, next, to make general findings as to the credibility and the reliability of the evidence of the witnesses. As stated earlier, there are no contemporaneous written records of the Plaintiff that record, summarise, or even mention, any conversation, between the deceased and him, and which relate to her leaving the whole of her estate, or the Undine Street property, to him. The Plaintiff's claim depends upon the Court accepting that he had accurately remembered the conversations that occurred, some of which were many years ago, and that he relied to his detriment, upon one or more of those conversations. Understandably, the evidence was tested, vigorously, during cross-examination.
2. The Court also had the opportunity to observe the Plaintiff closely whilst he was giving his evidence. I could not detect in his demeanour any deliberate attempt to fabricate his evidence, or an intention to mislead the court. However, having considered his affidavits and the oral evidence very carefully, I am of the view that his recollection, about some of the events, is unreliable, and that his affidavit evidence, particularly in relation to what occurred at the meeting with Mr Mattick and the deceased, at which he was present, was tailored, not necessarily intentionally, to what he perceived to be the best advantage for his case.
3. In addition, I have earlier referred to the duty of a witness to tell the truth, the whole truth, and nothing but the truth, and that the obligation is the same when one is making an affidavit, or when one is giving evidence in the witness box. The Plaintiff, in my view, in his affidavits, did not comply with this obligation.
4. In coming to this conclusion, I do not conclude that the Plaintiff deliberately attempted to mislead the court. Rather, I consider that there was clearly a very strong emotional overlay to the Plaintiff's case, and that he has a belief in his cause and what he sees as an entitlement to be reimbursed for what he did for the deceased. That there was earlier litigation, which was conducted with the same vigour as was these proceedings, did not help, as is obvious from the following passage taken from the Plaintiff's oral evidence at T85.09 - T85.23 and at T90.43 - T90.47: "Q. And you didn't instruct your solicitors to advise Mr Barnett that you had the certificate of title did you? A. No. Q. And you didn't instruct your solicitors to advise Mr Barnett that Ms Thompson had made promises to you about here leaving her estate to you? A. It probably wasn't necessary at this stage, no. Q. You say it wasn't necessary? A. I had no contact with Mr Barnett and any of the executors. The day that she died they broke into the house the next day, they ignored me because they were afraid I might have something. All they had to do was ask me for the title deeds and I would have said I've got them. They didn't ask me for anything. They didn't ask me if I knew about her will. Crazy stuff. For a power of attorney to be ignored like that they were afraid of something, so. … Q. Do you agree with me it was a real possibility they would sell the property? A. No, I didn't know what they were going to do. I wasn't talking to them and I had no conversation with them whatsoever until after Mrs Thompson had died. So if they had asked me a few questions, I would have answered them. I was very keen to cooperate."

DETERMINATION

1. There can be little doubt, when one reads the whole of the documentary evidence, that the Plaintiff played a role in the life of the deceased from about 2011. That role increased, at times, particularly as the deceased's needs for support increased. This does not mean, however, that he "was managing Yvonne's affairs" (as asserted in correspondence from his solicitor). There is also little doubt, in my view, that the deceased remained an extremely independent, and at times, strong willed person.
2. Considering the evidence of a number of different witnesses, I am also of the view that the deceased did reveal to the Plaintiff, at different times, her testamentary intentions. However, it is not possible to conclude, even on the balance of probabilities, what precisely was said to him, as there are different, and at times, competing versions of what she said to him.
3. In this regard, and by way of example, I refer to what the Plaintiff reported to Ms Blacket in regard to what was said and the way in which the Plaintiff has presented the case - either that the whole estate, or the Undine Street property, would pass to the Plaintiff. That the case was put in this way demonstrates that the Plaintiff himself, is unsure of what he understood was the clearly articulated promise, or assurance, made to him by the deceased.
4. That there exists this difficulty is also demonstrated by the following submission made on behalf of the Plaintiff: "The plaintiff was unshaken, in the course of lengthy cross-examination, as to the repeated representations and encouragement of the deceased which lead him to assume - reasonably, it is submitted, in the circumstances - that the deceased would leave him, if not her whole estate, then at least the [Undine Street] property."
5. Even on the Plaintiff's own evidence, the deceased made no such promise or gave no such assurance, even if she referred, on occasions, to the Undine Street property.
6. The fact that the suggestion of a promise made, or assurance given, by the deceased did not find its way into any correspondence, or the affidavit of the Plaintiff, before 16 months after the date of the deceased's death, is also very troubling. Even if the Probate suit was one that was required to be dealt with first, that would not have prevented the Plaintiff disclosing the nature of the promises said to have been made, or the assurances said to have been given, well before the date on which the matter was disclosed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2017