72 Yolla referred in general terms in her first affidavit to conversations with her mother after her father's death in May 2004, in which she says her mother said words to the effect "I have told George to repay the loan but he won't talk to me about it" (my emphasis). It was submitted by Mr Rollinson that the discussions in relation to repayment of the loan, as deposed to by the siblings, were not in terms couched as referable to any binding obligation on George's part. Though the concept of a 'loan' would ordinarily suggest that it was to be repayable, I read Yolla's affidavit in this regard as a summary of the effect of what her mother had said and I am not convinced that great weight can be attached to the reference to a 'loan' in the conversations described there in summary form. However, it is of relevance, in my view, that Rose was not apparently suggesting to Yolla that any of the other children were expected to repay the loan nor does Rose seem to have asked any of her other children to do so - which indicates that Rose considered George to be the one responsible for the repayment of the borrowings.
73 It appears that it was not until after the funeral of Peter Snr that the first discussion took place amongst the siblings in relation to the discharge of the mortgage over the Punchbowl property. Yolla says that one of her brothers said to George "when are you going to discharge the mortgage?" and that he said "don't worry, I will fix it and my son, Peter is arranging for the loan to be finalised" (para 20).
74 Some question was raised in cross-examination of the siblings as to what it was that Peter Jnr could have been asked to 'fix'. The simplest way of discharging the mortgage would of course have been to pay out the loan then and there. The reference to Peter Jnr arranging for the loan to be finalised or fixed would seem to be readily explicable (as a statement, in effect, that Peter Jnr would arrange for the transfer of funds and documentation of the discharge) in circumstances where George was then shortly about to return to Lebanon. Hence it would not be surprising if he had authorised his son to do what was necessary on his behalf to discharge the mortgage in his absence. Even if such a statement was intended to refer to something to be done by Peter Jnr in his capacity as a solicitor, this would still be consistent with George acknowledging and accepting liability for the loan (whether that involved its discharge through repayment or by way of a refinancing). Most likely, I think, is that a statement of this kind (which I accept was made by George, for the reasons outlined when I come to address the credit of the various witnesses) was intended to convey to George's siblings that Peter Jnr (in George's absence overseas) would attend to the repayment of the National Australia Bank loan on George's behalf.
75 When questioned as to this aspect of the matter, Yolla said that it was Michael who had first broached the subject of when George was going to discharge the mortgage (T 32.45). At T 34.24, Yolla said that George seemed to be happy to pay off the mortgage "he said he was going to, that he told his son to do it and that is what he told us, he was happy to pay the mortgage back"… "and he instructed his son to do it" (T 34.27). When Yolla was asked what George had said, her recollection was to the effect that he had said "I will fix it up, I will get Peter to fix it up" (T 34.46).
76 The estate seems to rely on this as an acknowledgment of liability, which on balance it seems to me to have been, thus supporting the finding that there was in place a loan agreement between Peter Snr and George. While it could conceivably have been seen simply as an offer to sort out the paperwork or to discuss payment options with the bank or the like, without any acceptance of an underlying personal responsibility to make the repayments, the context in which George's siblings raised the issue seems to me to make George's response a tacit acceptance that he was responsible for the repayment of the loan. The making of a response of this kind is consistent with the lack of any action taken by Yolla or her other brothers at that stage either to recover the moneys from George or to make arrangements for the servicing of the loan. It seems to me that they had understood that George was to take care of that and they left it to him to do so.
77 Yolla swore an affidavit on 10 February 2010 in which she said that in late 2004 or early 2005 she took her mother to the offices of Elias Gates & Associates Pty Ltd in Revesby. It seems that this visit was for the purpose of preparing her mother's final will, as the will prepared by Mr Elias was dated 17 January 2005 (Annexure I to Yolla Chidiac's affidavit sworn 10 June 2009). It may be by reference to this (at least in part) that George bases his recollection that he was not in Australia in early 2005, since at T 137 he said "If I wasn't overseas mum will never change the will". (Whether that suggests a consciousness that he held a position of some influence over his mother, I do not know, but it does provide indirect support for the opinion held by Yolla that her mother did not wish George to know that she had changed her will, in that it suggests that if George had been made aware of this he would have tried to persuade his mother otherwise.)
78 Yolla's recollection was that later in 2005 her mother told her that she was getting phone calls from the bank (which I assume to have been the National Australia Bank) and that her mother did not know what a mortgage was (seemingly inconsistent with Yolla's evidence that her mother was present during a conversation in 2003 in which Peter Snr said that he had put the deeds for the house up as security for George's loan). Yolla says that she had told her mother 'that's to do with George's loan'. It was at that stage that Yolla and Rose consulted Mr Elias about the matter.
79 Yolla, in her oral evidence, said that after the conversation she had with her mother about the bank phone calls, her mother wanted Yolla to take her to a solicitor and so Yolla took her mother to see George Elias. In evidence was a letter of authority that Rose signed authorising Mr Elias to investigate the mortgage. Yolla said she typed out the document (a copy of which is Annexure I to Yolla Chidiac's affidavit sworn 10 February 2010) on her computer at home and that the words in it were those which Mr Elias had said he wanted her to write (T 19). She said that she explained to her mother what the document was and she signed it. She said that she translated the words into Arabic for her mother. Yolla said that when she and her mother went to Mr Elias' offices she gave the letter to him (which suggests that Yolla must have had some form of conversation with Mr Elias beforehand in which he had told her what kind of authority would be required as it seems there was only one joint visit to the office).
80 Yolla was cross-examined in some detail about the letter of authority and, in particular, the suggestion in it that her mother was not aware of any mortgage over the house (despite the fact that Yolla had deposed earlier, in her affidavit sworn 10 June 2009, at [15]), to a 2003 conversation in which the deeds of the house being put up as security for George's loan was discussed). Yolla's evidence was somewhat contradictory in this regard. She said (T 20.6) that her mother was not aware of what the mortgage was about. At T 21.7, Yolla said that "she did not know where the mortgage is at and what is happening. That is what she was trying to say to me." Although she said that her mother was present at the meeting in 2003 in which her father had said that he had put the house up for George and had said the words "the bank has the deeds to the house", Yolla expressed the view that her mother, not knowing English, would not have known that that was a 'mortgage' (at T 22.41). "She would just know the house has been put up, there's money taken from the house. That is all my mother would have known." (T 22.42). Yolla then accepted (T 23.14) that her mother was aware of the mortgage but said that she was not aware at that stage of what had been paid or what had not been paid because no documents had been coming to the address (T 24.47) and that was what Yolla had understood to be the meaning of the letter saying that she gave permission for her daughter to investigate the mortgage on the house "because was not aware of it".
81 The reliance placed by the defendants on this evidence seems to be to say that any suggestion that Rose was aware of a loan arrangement in place with George in respect of the National Australia Bank funds should be rejected in light of the letter of authority signed by her which asserted no knowledge of a mortgage (thus that this casts doubt on the evidence on which the estate relies for the assertion that there was such a loan arrangement). However, I am not persuaded that much weight can be attached to a letter of this kind, signed by Rose apparently in order to enable a solicitor to make enquiries in relation to a mortgage about which Rose had been receiving calls from the bank and the detail of which does not seem to have been put before Rose. Yolla said, and there seems no reason not to accept, that Rose had not previously dealt with the bank. It is understandable that Rose would have been concerned at receiving calls from the bank, even if she was aware in general terms of a loan arrangement with George, since she was by then in her early 70's and her only income (other than any moneys given to her by George, who says he was giving her around $250 a week for some years) was a pension; particularly if she had (as Yolla says Rose had said) told George to repay the loan and he had refused to talk to her.
82 The lack of precision in the letter of authority (and the confusion evident in Yolla's responses in the witness box when questioned on this letter) seems to me more likely to be a function of Yolla's own lack of awareness at the time as to what arrangements had been made in relation to the funds borrowed from the bank (other than having a general understanding that this was 'George's loan') and wanting to help her mother to find out exactly what the position was in relation to the bank. Yolla saw this letter as being an authority by her mother for Mr Elias to investigate the matter and seems unlikely to have focussed in detail on the content of the letter. My observation of the manner in which Yolla gave evidence was that she was unlikely to have given careful consideration to the terms of the letter of authority. It seemed to me that Yolla had a tendency to gloss over the detail and to answer questions by reference to the substance or effect of what she understood to be the case (such as when she proffered observations of her mother's knowledge or understanding of a mortgage as if it were fact). However, my impression was that Yolla did so without attempting to avoid answering questions but earnestly in an endeavour to make clear to the court what she believed the position to be. Her responses tended to be given without hesitation and in an unguarded way (unlike, for example, the unforthcoming evidence of Peter Jnr).
83 The upshot of the meeting between Rose, Yolla and Mr Elias seems to have been that Mr Elias sent a letter (an unsigned copy of which, dated 16 November 2005, is Exhibit 1) to the National Australia Bank branch in Campsie, querying the mortgage over the Punchbowl property, in which he said "We are told that the Deceased [Peter Snr] did not borrow this amount [$320,000] or any other amount from your Bank. In fact, the Mortgage could not have been executed with the Deceased's understanding as he was unable to read English" and requesting details of any interpreter's certificate. The letter went on to note the writer's instructions that the deceased did not receive the funds pursuant to the mortgage and asked for confirmation as to whether the loan amount was advanced and if so, to whom.
84 This letter was put to Yolla in cross-examination. Yolla said that she had said to Mr Elias that the money had been used for somebody else but had not been used for her father (T 29.5 - 29.33). It was put to Yolla that it was not accurate to say that the deceased did not receive the funds pursuant to the mortgage. Yolla's position, stated forcefully in the witness box, was that "if he received it, I would have said he received it but he didn't receive a cent. I will argue that point because to me that's true" (T 29.35), there apparently drawing a distinction between moneys being made available by the bank (which they clearly were) and moneys being retained in Peter Snr's hands or used for his personal benefit (which they clearly were not).
85 Yolla accepted that the 2003 conversation to which she deposed in her affidavit as to the discussion of the loan to George was not consistent with what Mr Elias had written to the bank in 2005 (T 30.40) (insofar as that earlier discussion referred to the deeds of the house being put up as security for a borrowing).
86 I understand that the defendants place reliance on this letter as casting doubt on Yolla's account of the conversation with her parents in 2003 (in that, if Yolla or her mother had believed there to have been such a borrowing, the assertion to the contrary in a letter to the bank could not properly have been made). However, it does not seem that the text of this letter was approved by Yolla before it was sent out by Mr Elias. Yolla says that she understood Mr Elias to have been instructed to carry out an investigation of what had happened in relation to the monies. It may well simply be that Mr Elias misstated the scope of his instructions in this regard. (Viewed more cynically, it might suggest an attempt to sheet home responsibility for the making of the loan to the bank, by way of the claim that the mortgagor did not understand the transaction, even though loan funds had been provided by the bank, irrespective of who it was ho bore the liability within the family for that loan.) It does not seem to me that the challenge raised by Mr Elias, on Rose's behalf, as to the validity of the bank loan necessarily leads to the conclusion that there was not an arrangement as between Peter Snr and George for the repayment of any moneys owing to the bank on that bank loan (although a claim against the bank on the evidence put before me would have been difficult to maintain).
87 In the circumstances, I do not think that the infelicitous way that instructions may have been given to Mr Elias in relation to this letter (leading him to believe that the money was not received by Peter Snr) or its suggestion that Peter Snr did not understand what was occurring (or its inconsistency with what Yolla says she had earlier been told by her father in relation to the loan) takes the matter very far. Relevantly, the conversation in 2003, to which Yolla deposed in relation to the alleged loan is not the sole evidence to support a finding that there was a loan arrangement of some kind in place between Peter Snr and his son in 2002/3 and the position taken vis a vis the bank in 2005 does not detract from the circumstances in which the loan was originally provided (which seem to me to provide the strongest support for the inference that there was a loan agreement in place at the time, albeit an informal one).
88 On 1 May 2006, Rose died. It was after the requiem mass, held forty days after her death, that matters between the siblings in relation to the National Australia Bank loan (and as to the new will) finally came to a head. Various accounts were given of what transpired on this occasion. The accounts of Yolla and each of her brothers (other than George) are broadly consistent. In summary, there seem to have been two catalysts for the argument (or arguments) which everyone (including George) seems to accept occurred on that occasion - first, the discovery by George that a new will had been made (and that Yolla had replaced his son, Peter Jnr, as executor) and, secondly, what was said by George (and the attitude displayed by him) in relation to the question of who was to be responsible for the repayment of the National Australia Bank loan secured over the Punchbowl property.
89 Yolla says that she, her husband, each of her brothers (George, Michael, Fred and Maurice) and two of George's sons, Peter Jnr and Anthony, were present and that a conversation took place in which George said "Peter's the executor but if you don't want him you have to take him to court"; Fred asked about the house situation and George replied that 'the home gets sold, the bank gets repaid and the rest gets divided by six'; that when someone said to George "you used the money for your wife's house and car", George said "I'm not on the documents, you can't prove anything"; and that Michael then said "Mum's made a will and Yolla's the executor".
90 Yolla says (in her affidavit sworn 10 June 2006) that George then said "the will's wrong, it was a present from Dad, you ask him". (The statement that the will being wrong is itself an interesting comment, since it seems unlikely that by then George would have had time to read the new will and in any event the new will itself made no reference to any loan - hence, if Yolla's version is correct, George's response seems quite defensive, to say the least.)
91 As noted, Rose's final will, made on 17 January 2005, left the whole of her estate to her six children equally. There was no reference to any loan owing to the estate by George. The contentious change seems to have been the replacement of Peter Jnr (who had been nominated as executor in the previous will) with Yolla as the new executor. Yolla said she accompanied her mother to see Mr Elias about that will but did not help her mother give the instructions to Mr Elias; though she did correct a mistake Mr Elias had made (in that she says - T 35.45 - he had forgotten to put George's name in the will at all!). At T 36.10, Yolla said that Mr Elias had said to her mother that 'somebody has to be responsible for the estate' and her mother said that she wanted Yolla to be the executor. Yolla said "she said she could only trust me to do the right thing by everybody" (T 36.23). Even accepting that this might be seen as evidence of a self-serving kind, there cannot be any suggestion that Yolla used any position of influence over her mother to obtain favourable treatment in terms of the testamentary dispositions, since the will dealt with all children equally.
92 Yolla accepted that George was not aware at the time her mother had died that there had been a new will (T 37.41). It was put to Yolla that in this particular conversation George had said "Peter is the executor" but that he had not said "if you don't want him you have to take him to court" (the latter statement reflecting a rather confrontational stance, though one which would not be inconsistent with the confrontational stance George displayed consistently in the witness box). Yolla was adamant that he had gone on to say those words (T 37.18-37.29).
93 At T 38.11, Yolla agreed that her mother did not want George to know about the changes until she had died. Yolla accepted that one of her brothers (Michael) had pulled the will out of her coat pocket and put it down in front of Peter Jnr, and that it was a big surprise to Peter and George, but showed no concern in this regard as she said her mother did not want it to happen before she passed away (T 39).
94 Peter Jnr, somewhat argumentatively during his cross-examination, made the point that there was no change to the will in terms of the testamentary distributions and posed the rhetorical question that, if the loan was such a big deal, why was it not in the will? (Conversely it might be thought why bother making a new will if the estate is inevitably going to be consumed by the burden of the debt - which logically must at some point have been the case if there was no arrangement in place for any repayment of the borrowings.)
95 It seems to me that the absence of any reference to the National Australia Bank loan from the will is not inconsistent with an understanding on the part of Rose that the loan was to be repaid by George and would not have to be borne by the estate. Had it not been Rose's understanding that George was repaying the loan, then one might have expected her either to include an explanation in the will as to why there was to be an equal distribution among the six siblings of the remaining equity in the home (notwithstanding the fact that George had already received a substantial benefit from his father out of that equity) or to take that gift into account when dividing the remaining estate between her children. Similarly, to answer Peter Jnr's rhetorical question, the explanation for the making of a new will simply in order to change the identity of the executor might well be due to a wish to have someone so closely connected with George to deal with all the siblings equally, as seems to have been Yolla's understanding for the change to the will.
96 George does not dispute that he told his siblings during the conversation in May 2006 that the money provided to him was a gift (or that he was not gong to pay out the mortgage, as Yolla deposed at T 41). The latter information seems to have been conveyed quite forcefully by George (at least on Michael's account of the conversation). Not surprisingly, the stance adopted by George led to a heated conversation. This seems particularly to have arisen from the suggestion by George (on not only Yolla's version of the conversation but also that of two of her brothers), when denying that the money was given to him as a loan, that the siblings should ask their (dead) father (or mother) for confirmation of what George was saying.
97 Yolla's affidavit did not describe in detail the heated argument. When questioned as to this, Yolla said that the heated argument related to the making of their mother's new will - T 35.5 - "He was spreading rumours that my mother wanted to write, make her will to him only, and that is what the heated argument was about. That is why I thought it wasn't relevant to the mortgage" (the latter comment, as I understood it, being Yolla's explanation as to why there was no reference in the affidavit to the content of that argument).
98 When cross-examined further about the conversation which took place in May 2006, Yolla referred to what she regarded as the offensive nature of George's comment in relation to their father. At T41.13, Yolla said George's reply when questioned about the repayment of the mortgage was "you have got no proof. I am not in any documents. Go ask your father what he did with the money." Yolla said she regarded it as a very offensive thing for that to be said when her father was dead at the time (T 41.26). Yolla was adamant in the witness box that such a statement had been said (T 41) (as were Fred - T 68.21-68.30 and Maurice - T 75.37, T 76.10). Michael gave evidence, to similar effect in relation to the family meeting after the death of Rose in 2006 - T 59-60 - but without reference to George suggesting that they question their deceased parents. (George denied that he had made any such statement.)