Cesira Ravagnolo (by her tutor Katerina Skinner) v Lang Ravagnolo; Lang Ravagnolo v Cesira Ravagnolo

Cesira did not make the alleged representations

Kim alleges that Cesira represented to her that she could live at No. 4 for as long as she wished, and that Cesira would not under any circumstances put her out of the property in the future, in conversations in 2001 to which only Kim and Cesira were party.
Cesira did not give evidence in these proceedings because she lacks the capacity to do so. Kim's evidence is the only direct evidence of the representations that she alleges that Cesira made in 2001, more than 20 years before these proceedings were commenced. As counsel for Cesira submitted, the Court is required in those circumstances to scrutinise Kim's evidence carefully in determining whether to accept it and, if accepted, the weight to be given to her evidence. Although there is no legal requirement for corroboration, the Court will normally look for some corroboration if corroborative evidence is, or ought to have been available. [1] The Court must also keep in mind the well-known fallibility of human memory of what was said in a conversation that is said to have occurred many years before the proceedings in which a party or witness gives evidence of the conversation. Kim must prove the alleged representation on which her promissory estoppel claim and defence are founded to the reasonable satisfaction of the Court. This requires that the Court must feel a sense of actual persuasion that the alleged representation was made. [2] As Emmett J said in Warner v Hung; In the matter of Bellpac Pty Ltd (recs and mgrs. apptd) (in liq): [3] "…When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)."
I now turn to Kim's evidence of the alleged representations, and the circumstances in which she claims that Cesira made those representations.
Kim's first language is Khmer. Kim affirmed both of her affidavits that were read in these proceedings after they were interpreted to her by an accredited interpreter. Kim also gave her evidence in cross-examination through an interpreter.
Kim gave evidence that she first met Cesira at Gabriele and Kim's wedding in April 1997.
Kim had first met Gabriele in early 1997 at the home of her cousin, Ong. Kim gave evidence that she was quite attracted to Gabriele at that meeting, but had little conversation with him because she understood little English. Kim and Gabriele conversed through Ong as interpreter at that meeting, and it was Ong who subsequently asked Kim, apparently on behalf of Gabriele, whether she would like to be in a relationship with Gabriele. According to Kim's evidence, Ong told her about three days after her first meeting with Gabriele: "Gabriele said he loves you. He only has one house, and one dog. Would you like to be in relationship?" Kim replied: "The house is not important. The important thing is I am also in love with him. We can work hard together and we will live well." In cross-examination, Kim confirmed that: "I did not worry about the house, I saw him and I love him". Kim moved into No. 4 with Gabriele a short time later in about February 1997, and they married on 12 April 1997.
After their wedding, Kim and Gabriele continued to live at No. 4, and Cesira lived about 900 metres away at 31 Linda Street in Fairfield West. Kim gave evidence that, during the period between 1997 and 2001, she and Gabriele often visited Cesira. However, Kim's ability to communicate in the English language remained limited, and Cesira's English language skills were not strong. Cesira's first language is Italian. In cross-examination, Kim gave evidence that, to her observation, Cesira usually communicated with Gabriele, Katerina and Maria in Italian. When Cesira had something to communicate to Kim, she would usually do so through Gabriele. Cesira did speak directly to Kim on occasions, but they did not have long conversations. Kim was asked in cross-examination if she had difficulty understanding Cesira when she spoke to Kim directly. Kim answered (through the interpreter): "Yes, it was difficult, but still understanding". Kim was also asked whether she noticed Cesira sometimes having difficulty understanding her. Kim answered (through the interpreter): "It was difficult, but if I keep repeating, I think she understand".
That was the extent of Kim's evidence about her interactions and communications with Cesira during the period from their first meeting in April 1997 until 2001, when Kim claims that Cesira made the representations on which she relies for the purpose of her proprietary estoppel claim and defence in these proceedings.
In her affidavit affirmed on 9 June 2023, Kim gave evidence that she became aware in about mid-2001 that Gabriele had a mistress. Gabriele told Kim at the time that he wanted to be with his former girlfriend, Jessie. Kim pleaded with Gabriele not to leave. Gabriele did leave, but told Kim to stay at No. 4 and to wait for him for three weeks. In cross-examination, Kim said that Gabriele had told her to wait because, "if everything works out okay with Jessie he will not come back, but if things doesn't work out he will come back". Kim told Gabriele, "I am your wife. Why are you doing this? I can't let you go with some woman and come back when you want". As Kim said in cross-examination, she was unhappy about Gabriele leaving and telling her to wait, but she did want to wait and see whether Gabriele would come back after three weeks because she wanted to stay with him if he came back after three weeks.
Kim stayed at No. 4. According to Kim's evidence, Cesira visited her at No. 4 about one week after Gabriele had moved out, and told Kim, "I want you to move out, because my son no come back". Kim protested that Gabriele had told her to stay at No. 4, and to wait for him for two or three weeks and that he would let her know whether or not he was coming back. According to Kim's evidence, it was during this conversation with Cesira that she first learned that Cesira, not Gabriele, owned No. 4.
Kim did not leave No. 4 after that conversation. Cesira returned, and they had a further conversation, about one week later. According to Kim's affidavit affirmed on 9 June 2023, the conversation was in the following terms: "Cesira said: 'Kim. I talk with Gabriele already. He say he no come back. That's why you prepare to move.' I said: 'I waiting for him to tell me. I can't believe you.' Cesira said: 'I told him already. If he no come back, I take this house to give to my grandson, Michael.' I said: 'No, I want to talk to my husband, because he promise he tell me. It not 3 weeks yet.' She said: 'Kim, you have to find somewhere to go. If you not go, I will call police.'"
Kim was scared by Cesira's threat to call the police, and she arranged to move out of No. 4 and to stay with a family friend named Gerry in Green Valley. According to Kim's evidence, she told Cesira that she was going to stay with Gerry, and said to Cesira that, "What happen, you contact Gerry". Kim then moved into Gerry's house, where she stayed for about two months. Gerry has not been called to give evidence in these proceedings.
Kim gave evidence that Cesira telephoned her at Gerry's house on several occasions while she was staying there. In her affidavit affirmed on 9 June 2023, Kim gave an account of those telephone conversations that she says she had with Cesira in English - being the only language in which they could communicate with one another directly - in terms that were in near perfect English. Kim deposed: "71. I recall I received a telephone call from Cesira during the time I was staying at Green Valley. We spoke, including words to the effect below: Cesira said: 'Kim, your husband wants to come back. I would like for you to come back to the house.' I asked: 'What do you want me to do? I was kicked out. What if my husband wants to leave again. I don't cannot stay on the streets.' Cesira said: 'Kim, I will make sure that you will not be homeless. You can live in that house as long as you want, no matter what happens to Gabriele.' I said: 'I will need to think about it.' 72. About a week later, I received another telephone call from Cesira. She said: 'Kim please come back. Gabriele have problem because he have problem with the girlfriend. He go poker machine, no money and no food.' I asked: 'He can go back into the house, can't he? What do you want me to do?' She said: 'No. You have to come back to. He does not have money.' I said: 'Why you want me come back. I don't understand.' She said: 'He gambling poker machine, drink, smoke, and girlfriend the same. No money. You need to come back.' I said: 'Mum, you kick me out, and now you want me come back. What happen next time?' 73. A few days later, I received another phone call from Cesira. She said: 'Gabriele want to come back. I want you to come back.' I said: 'How can I come back, if you kick me out.' She said: 'Kim please I am sorry. I am a mother. Gabriele tell me he want to stay with girlfriend.' I asked: 'What if Gabriele cheats on me again or something happens to him, what am I going to do?' Cesira said: 'I promise you already. You are a good person and you are Gabriele's wife. It is Gabriele who is wrong. Whatever happens in the future, you can live in this house.' I asked: 'Mum, what do you want me to do then?' Cesira said: 'Gabrielle have no money for the $700 moving fee. I can pay $200. Could you pay $500 so that we can bring Gabrielle furniture back to the house?' 74. When I was in Greenvalley, Cesira telephoned me. She said: 'Kim, I am very sorry.' I asked: 'Why are you sorry?' Cesira said: 'Gab, he lost all his money. He gambling. He needs you Kim. The girlfriend no good.' I said: 'That's not my problem. He is a man, want another lady.' Cesira said: 'Kim, please forgive Gab.' I said: 'I don't want to go back with him. I will divorce him.' That was truly what I intended to do at that time. Around a week later, I received another phone call from Cesira. She said 'Kim please go back to the home. Gab want me to ask you to go back. He say he cannot call you'. I said: 'Mum, I don't want to go back. I can live myself without Gab'. Cesira said: 'Kim, please Gab needs you. He have no money with the girlfriend, and he very sad.' I asked: 'What if Gab leave house again or something happens to him? What am I going to do?' Cesira replied: 'Kim, I will not let you live on the street.' I said: 'I will think about it.' A few days later after this telephone call, I arranged to pay the $500.00 and returned to live at No.4. 75. When Gabriele returned home, he slowly changed and became a better person. Cesira told me that she was happy to see that, and she treated me even better than she used to in the past. She said to me things like 'You are a good woman for him.' 76. I had the ability to live independently of Gabriele, but when Cesira said these things I believed she was promising me security in Number 4 and that was the thing that convinced me to return. Gabriele had never had a stable job. He spent most of his money on gambling, cigarettes and alcohol. I paid for most of the food and household expense during our marriage."
In cross-examination, Kim gave evidence that she recalled the exact words used in her conversations with Cesira more than 20 years ago because (through the interpreter) "it is very important matter for me" and "it is a suffering matter that happen to my life".
Asked to repeat in English the exact words of the first telephone conversation that she says she had with Cesira, Kim gave an account of that conversation in which Cesira told her that Gabriele wanted to come back to her, and that Cesira wanted her to come back to No. 4, and Kim replied "I can't come because I - you kick me out. How you want me come back?". Kim repeated that account several times, and said that: "As far as I could remember, those are the words". It was then put to Kim that she might have been mistaken when she deposed in her affidavit that Cesira had said to her words to the effect that "I will make sure that you will not be homeless". Kim answered that those words had not been said during the first telephone conversation, but they had been said when Cesira had called another time. Kim was asked if she agreed that, during the first conversation, Cesira had not said anything about Kim being able to live at No. 4 for as long as she wanted to. Again, Kim answered that those words had been said in a subsequent telephone call.
During the course of the exchange with the cross-examiner referred to immediately above, Kim said that, even though she did not remember every single word, she remembered the meaning of the words spoken by Cesira. That is inconsistent with Kim's evidence given immediately before that exchange in which she insisted that she did recall the exact words because "it is very important matter for me" and "it is a suffering matter that happen to my life".
Kim then gave at least three different accounts of what she says she recalls Cesira saying to her in the second or subsequent telephone conversations.
First: "Yeah, mum say want me to come back in the house too. I say, 'How can I come? You kick me out. When, when, next, next time, you kick me out again, and what can I do?' And mum say, 'No, Kim, please, I'm sorry. You can come back in the house. If next time Gabriel do something wrong, you in the house because the problem my son, you no, you no more go on the street, you in the house.' Mum talk to me like this. Yeah, she say, 'You must be in the house, no more on the street, you can be in the house, like, like, you want to be in the house. You can be in the house long as you want.' I talk to her, I say, 'Sure mum?' She say, 'Yeah, I promise you. You not believe me?' And I no say anything, just listening, she talk."
Second: "You can, can live in the house, no more on the street. If Gabriel do something wrong or what, what happened come out to him, you live in the house, no more, no more on the street. You be, be good, very good, and you married. Why you worry?"
Third: "Q. I suggest to you that Cesira never [said] to you words to the effect of, 'I will make sure that you will not be homeless'. She never said that. A. WITNESS: Mum say, 'What happened to Gabriel? Next time you been in the house, no more on the street. No more in the homeless'. Mum say like that."
It was put to Kim that Cesira had never given her any assurance that she could stay at No. 4 for as long as she wished, and that, whatever happened in the future, Cesira would never ask her to leave. Kim maintained that Cesira did make that promise to her.
It was also put to Kim that Cesira did not have any discussion with Kim at all before Kim decided to return to No. 4 to live with Gabriel. Kim denied that.
Maria gave evidence in cross-examination that, in 2001 and 2002, Cesira told Maria that Kim was asking for some sort of assurance about her ability to continue living at No. 4.
In paragraph 30 of her affidavit affirmed on 9 June 2023, Kim deposed that she had a number of further conversations with Cesira in which she sought "some assurance from Cesira in relation to No. 4". It is clear from the context and substance of paragraph 30 of Kim's affidavit that these further conversations are said to have occurred after Kim had resumed living at No. 4. I reject the submissions made by counsel for Cesira that paragraph 30 of the affidavit was referring to the period in which Kim and Gabriel were separated. According to Kim's evidence, Cesira said to her words to the following effect during those conversations: "I am giving this house (meaning Number 4) to Gabriele. That is the same as giving it to you. You are married to Gabriele, why are you worried? This is the law in Australia. I give to your husband, I give to the wife, give to you. Also, for my daughters, I also do the same."
On 8 February 2002, Cesira made a will in which she gave No. 4 to Gabriele "for his own use and benefit absolutely", and gave the remainder of her estate, after payment of all of her debts and testamentary and funeral expenses, to Katerina and Maria to be divided between them equally.
Katerina gave evidence in cross-examination that she recalled Cesira telling her that Kim wanted to be mentioned in the will, but that she (Cesira) had said no.
For the following reasons, I do not feel a sense of actual persuasion that Cesira represented to Kim in one or more telephone conversations during the period in which Kim was living at Gerry's home in 2001 that Kim could live at No. 4 for as long as she wished, and that Cesira would not put Kim out of the property under any circumstances in the future.
As counsel for Cesira submitted, it is inherently improbable that Cesira would have initiated the alleged telephone conversations with Kim at all in 2001, for two reasons.
First, it is inherently improbable that the mother of a husband in a marriage would contact the wife to negotiate the wife's return to the marriage, rather than the husband (Gabriele) contacting the wife (Kim) directly to discuss the terms on which she might be prepared to return notwithstanding his own conduct in leaving the marriage.
Counsel for Kim submitted that there must have been some communication that caused Kim to return to No. 4, and that it is inherently probable that this communication was between Kim and Cesira, because Cesira was the owner of the property who had the right to determine who lived there. I reject that submission. It is clear from the evidence that there was never any question about Cesira's willingness for Gabriele to live at No. 4 for as long as he chose to do so. Any return by Kim to live at No. 4 depended on her willingness to resume living together with Gabriele and to continue their marriage. I reject the submission that it is inherently probable that Gabriele deputised his mother to negotiate Kim's return to the marriage because that would have been a difficult conversation for him to have with Kim in circumstances where he would have felt chastened or embarrassed by his conduct in leaving her, by the failure of the new relationship that he had wished to embark on with Jessie, and by having run out of money. Only a very short time earlier, Gabriele had been sufficiently brazen to tell Kim that he was leaving to be with Jessie and to command Kim to wait for him while he decided whether or not he wanted to end their marriage or come back to Kim. Having decided that he did want to come back to Kim and for her to return to No. 4 to live with him, it is inherently probable that he would have told her so himself.
Second, it is inherently improbable that Cesira would have initiated any telephone conversations directly with Kim in circumstances where, according to Kim's own evidence, they both had limited English language skills, they had hitherto communicated primarily through Gabriele, and the limited direct communications which they had had with one another had not been long conversations and had been attended by some difficulty in understanding one another. [4]
There is no corroborative evidence that any telephone conversations occurred between Cesira and Kim during this period.
I reject the submission that Maria's evidence to which I have referred at [38] above corroborates Kim's evidence that Cesira spoke to her directly during the period in which Kim was staying with Gerry. Maria's evidence is equally consistent with the possibility that Cesira conveyed to Maria something that Gabriele had told Cesira. The evidence does not provide any proper basis for the Court to discard that possibility in favour of the alternative possibility assumed in the submissions made on Kim's behalf. That is all the more so in circumstances where Maria was not asked in cross-examination if Cesira had told her that she had been in direct communication with Kim in relation to Kim's possible return to No. 4.
There was no evidence explaining Kim's failure to call Gerry to give evidence about whether he observed Kim receiving telephone calls from Cesira to the telephone in his home while Kim was living there. I infer that any evidence that Gerry could have given would not have assisted Kim's estoppel claim and defence. [5]
Nor is there any corroborative evidence that Cesira made the alleged representation to Kim in the alleged telephone conversations, or otherwise.
Each of Katerina and Maria gave evidence that Cesira did not disclose to them the promise that Kim alleges Cesira made to her. As counsel for Cesira submitted, that is relevant, albeit not decisive.
Cesira made five wills after 2001, including one made in February 2002. Each of those wills was drafted by Mr Patrick Agostino, solicitor, who has had frequent dealings with Cesira since the early 1990s. They conversed in the Italian language. As Mr Agostino explained in cross-examination, he prepared wills and powers of attorney on Cesira's instructions, and she would also drop in to his office from time to time and ask him to interpret and explain correspondence that she had received which she did not understand. The instructions that Cesira provided to Mr Agostino in relation to the five wills that he prepared for her after 2001 are not consistent with the alleged representations. None of those wills mentioned Kim or referred to any promise or intention on the part of Cesira that Kim would be entitled to live at No. 4.
As I have already mentioned, the will made by Cesira on 8 February 2002, shortly after the alleged representations, gave No. 4 to Gabriele "for his own use and benefit absolutely". I reject the submission made by counsel for Kim that the 8 February 2002 will "serves as evidence confirming what Cesira's essential promise to [Kim] was, and what Cesira intended in making it" because it reflects the further conversation referred to at [39] above that Kim claims to have had with Cesira after she returned to No. 4. Contrary to that submission, the terms of the 8 February 2002 will do not corroborate Kim's evidence about Cesira's alleged representations. Cesira's gift of No. 4 to Gabriele confers no right on Kim to continue occupying the property in the event that Gabriele left Kim again within Cesira's lifetime. According to Kim's evidence in cross-examination, that was the scenario - "the next time" - in respect of which she was seeking some assurance and security from Cesira during the telephone conversations that she claims to have had with Cesira. For the same reasons, Kim's evidence of the further conversation referred to at [39] above is also inconsistent with her evidence of the alleged representations. I note that the terms of the 8 February 2002 will are inconsistent with Kim's evidence of that alleged further conversation in any event. The terms of that will do not amount to Cesira doing "the same" for her daughters Katerina and Maria as she did for Gabriele.
It is common ground that, shortly after Kim was informed about Gabriele's passing and that No. 4 was to be sold, Kim offered to buy the property from Cesira. Counsel for Kim submitted that this conduct was not inconsistent with Kim's evidence of the representations that she says Cesira had made to her in 2001 because Kim was simply offering to buy a better interest in the property than the life estate or right of occupation that she claims to have been promised in 2001. However, in my opinion, it is inherently improbable that a person who had been promised a right to live in a property free of charge would offer to pay money to purchase that property. Kim did not give any evidence explaining why, if she believed that Cesira had promised her a right to live in the property for as long as she wished, she had offered to purchase the property in 2022.
Having regard to the inherent improbability of the conversations having occurred at all, and the inconsistencies within Kim's accounts of what she claims Cesira said during the conversations, I do not regard Kim's evidence of the alleged conversations as reliable. Kim's claim to recall the exact words of the alleged conversations is objectively untrue, having regard to the discrepancies between her affidavit evidence referred to at [28] above, and the evidence that she gave about the alleged conversations in cross-examination referred to at [32]-[35] above. Different words are used in each account of the conversation given by Kim, who ultimately conceded in cross-examination that she did not in fact recall the words used, as referred to at [31] above. It is not surprising that Kim can no longer recall the exact words, but her initial claim to have such a recollection reflects poorly on her credit. Having regard to Kim's own evidence about the limitations on her ability and Cesira's ability to communicate in the English language at the time of the alleged conversations, [6] and Kim's continuing limitations that were evident during her cross-examination, the notion that Cesira and Kim had conversations in the English language in terms resembling the near perfect English terms of the alleged conversations recounted in Kim's affidavit is highly implausible. The account of the alleged conversations set out in those affidavits, which were prepared after Gabriele's sudden and unexpected death and with Kim's estoppel defence to the possession claim in mind, included discussion of the future scenario in which "something happens" to Gabriele in the future. By contrast, the accounts of the alleged conversations given by Kim in cross-examination were about "next time" and "[i]f Gabriele do something wrong".
For all of those reasons, I am not satisfied on the balance of probabilities that the alleged telephone conversations between Cesira and Kim occurred at all.
Even if I had found that Cesira did telephone Kim during the period while she was staying with Gerry in 2001, I would not have been satisfied on the balance of probabilities that Cesira had represented to Kim during such telephone conversations that Kim could live at No. 4 for as long as she wished, and that Cesira would not put Kim out of the property under any circumstances in the future. By reason of the language barrier between Kim and Cesira in 2001, there is a significant potential for Kim to have misunderstood the words spoken by Cesira in any conversations between them at that time. Kim's inconsistent evidence of the memory that she claims to have of the meaning of the words that she says Cesira spoke to her in English more than twenty years ago is inherently unreliable due to the passage of time, the internal inconsistencies to which I have referred above, and the potential for any such memory to have now been overlaid - consciously or subconsciously - by Kim's interest in wishing to continue living in No. 4, which depends on proving the alleged representations on which her estoppel defence is founded. In addition, Kim's offer to purchase No. 4 in 2022 is inconsistent with her evidence that Cesira made the alleged representations in 2001 for the reasons that I have explained above.
Kim's estoppel claim and defence fails for those reasons. I will briefly address reliance and detriment, in case those issues become relevant in any future appeal.

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Judgment (8 paragraphs)

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