73 In terms of the relevance of this communication, first, it seems to me that the emailed letter is relevant to show, on Mr Dable's part, not only what Mr Dable said he had done for the deceased over the years but also, and more significantly, that he considered this to be no more than what a "true friend" would do or might be expected to do.
74 Had Mr Dable provided other assistance over the years, of a different or more substantial kind (which might have been relied upon in these proceedings as detrimental reliance), it seems reasonable to infer that Mr Dable would have made reference to that other assistance in this letter. Rather, in the letter what Mr Dable focussed on (as he did in his answers in the witness box) was the fact that he had driven the deceased to various places (at the time after the deceased's car accident) and had gone with the deceased or taken him to and from the hospital (or doctors). In the witness box Mr Dable emphasised this assistance, when asked to describe the extra effort he had taken, in reliance on the assurances as to the will: "Someone knocked off his four wheel drive - took him there running around looking for another car. Accident in Dural took him to Baulkham Hills, lot of times. Wouldn't have done any of that if not in his will. Would not have run around to five or six different areas and spend three or four hours of time, would not have got up at midnight to go to hospital. Would have charged him for running around, not for a one off time but if I had got to drive him round to different places" (T 80).
75 Secondly, the letter makes very clear the value Mr Dable placed on the deceased as a source of financial assistance. Even assuming Mr Dable was not in need of money at that time or could have obtained it from other sources then or at earlier times (and notwithstanding that interest was paid on the loans over the years and the deceased may also have benefited therefrom), the fact that Mr Dable chose this as the "test" of the deceased's friendship is telling, in my view. It suggests a level of dependence or reliance on the financial assistance provided by the deceased (and that Mr Dable perceived that he had already received some benefit from the relationship with the deceased over the years; a benefit which may be relevant to take into account when assessing, not so much the reliance placed by the Dables on the deceased's assurances, but whether it was unconscionable for the deceased ultimately not to honour them).
76 That said, I do not read the letter as indicating that the sole (or even the main) reason that Mr Dable (and, perhaps by extension, his family) was providing hospitality and services to the deceased was (as was put to the Dables in cross-examination) that they were reliant on the deceased for the provision of finance, ie so that the deceased would continue to make loans to them. That is not the tenor of Mr Dable's complaint in the letter - rather, that letter seems to be a complaint that, he having done so much for the deceased, it was unreasonable for the deceased not to provide the funds requested.
77 Thirdly, the reference to the "many business deals" is consistent with how Ms Royal says the deceased described his relationship with the family (as one in which he "had some business arrangements"), although I consider that that would not, on the evidence, have been a complete description of the relationship.
78 Finally, and most significantly in my view, the letter (whether in a fit of pique or otherwise) asks that the deceased take Mr Dable's name out of the will. I do not read anything of significance into the words "if there is a will" (which at most seems to be hinting at a suggestion that the deceased's word could not be relied upon - consistent with the general tenor of the letter being that Mr Dable had been let down by or "brushed off" by him).
79 When asked in the witness box if he doubted there was a will he said he "probably doubted it because let me down on the thing. I was trying to see if he was a true friend or not, how he was going to respond … just to make sure that there was a will. I said probably this bloke was just leading me on". All of that is consistent with Mr Dable, at that stage, feeling that he had been badly treated by the deceased and therefore questioning the faith to be placed in his earlier assurances.
80 In the witness box, Mr Dable said that the falling out was resolved within the hour. However, given that the copy of this letter was one produced by the defendants, I can only assume the deceased had kept a copy of the letter in some form (whether electronically or in hard copy) and this might give rise to an inference (depending on what the deceased's habits were as to the retention of email correspondence, as to which there is no evidence) that the deceased had lingering feelings about the things which had been said in the letter.
81 In any event, whether or not the two had made up their differences within the hour or so, as Mr Dable said, it seems to me to be difficult for Mr Dable (whatever the position may be for the rest of his family) to contend that it was unconscionable for the deceased thereafter to accede to that request and to take his name out of the will. Even had I otherwise been prepared to find up to that point that there was sufficient detrimental reliance on the alleged assurances to have made it unconscionable for the deceased to resile therefrom, as from the time of this communication I fail to see how Mr Dable can maintain a claim based on an estoppel of the kind asserted. Whether those words were seriously meant by Mr Dable or otherwise, he is left in the position that the deceased did just what he exhorted him to do - left him out of the will - and there is no suggestion that Mr Dable later retracted that request or that the deceased later expressly reinstated his earlier assurances about the will, at least to Mr Dable, as opposed to continuing to make general assurances to Ms Yolla Dable or others in the family.
82 Ms Royal, in her affidavit, deposed to a conversation with the deceased in 2004 in which she said he informed her he was about to travel to Castle Hill and said words to the effect:
I have to see these people in Castle Hill. I have known these people for a long time. I have had some business arrangements with them. They are mad - mad as snakes. I am thinking of giving them the flick. (para 11)
83 Whether or not that conversation coincided with the contretemps between Mr Dable and the deceased, I do not know. However, the fact there had been a falling-out or quarrel of some kind would seem to lend credence to the deceased having communicated to Ms Royal at around that time some dissatisfaction with at least one of the Dable family.
84 That said, whether or not the dispute or falling out with Mr Dable was the genesis for the comment allegedly made by the deceased to Ms Royal in 2004 about the family to the effect that he was thinking of giving them "the flick", Ms Royal's evidence is in itself odd insofar as Ms Royal does not record having expressed any curiosity (or having raised any query) as to the information relayed to her by the deceased (in such colourful terms) at that stage (or at least, if she did, chose not to put any such evidence before the court).
85 Notwithstanding the contretemps which led to Exhibit 7, the evidence from the Dables was that contact was still maintained with the deceased up to shortly before his death. This is supported by photographs tendered by the plaintiffs of the deceased at the Dable family house in Dural on 17 March 2007 and by the fact that the deceased provided Yolla Dable in March 2007 with money in advance on account of the tax payable on the account(s) held in her name for that year. Ms Yolla Dable says that on that occasion and at other times in 2007 the deceased was still saying to her that the estate was left to the family.
86 Meanwhile, Ms Royal says she developed a close friendship with the deceased and saw him regularly throughout 2004 and 2005.
87 It seems likely that, at least by 2006, the contact between the deceased and the Dables was somewhat less. Mr Dable was by then based in Port Macquarie (and not available to accompany the deceased on twice weekly boating trips) and Ms Royal says that from August 2006 the deceased regularly sought her assistance and that she took him on trips and expeditions, shopping and the like. (This friendship seems to be confirmed at least in general terms by Mr Tribe.) In her affidavit, Ms Royal referred to trips to Centennial Park to feed the ducks. In the witness box she expanded on that and referred to trips to Castle Hill, but said she did not take him to visit the Dables.
88 The deceased changed his will in 2006. Ms Royal gave evidence of a conversation with the deceased in September 2006 in which she says he said:
Rosie I have to change my will. At the moment the mob inherent [sic] everything, the lot. You've got to get me to see a solicitor. I don't care if its your solicitor or John's solicitor, any solicitor. I have to change my will.
89 When pressed in the witness box, Ms Royal (with an air of what I can only describe as smugness) said that the deceased told her the reason he wanted to change his will was that he had been "double-crossed". At T 133 Ms Royal said, "He told me that they had lied and cheated and double-crossed him, and that was the reason he was changing his will". There was no reference in Ms Royal's affidavit indicating that the deceased had said anything about the "double-crossing", nor was she able to say what he had meant by that, nor there anything put to the Dables to that effect (from which I infer there was no factual basis on which Counsel for the executors, Mr Freeman, could properly do so) or anything in the documents tendered before me which suggests that the Dables had in any way cheated the deceased.
90 The disinterest Ms Royal seems to have exhibited in this regard seemed quite extraordinary. It seems difficult to believe that someone in her position, being told that the deceased wanted urgently to change his will in order to disinherit beneficiaries who he said had lied, cheated and double-crossed him would not have asked at least some basic questions as to what had happened or why such a perception was held. Whether the lawyer who prepared the will could have shed further light on this is not known.
91 Following that conversation, Ms Royal arranged, through her husband, for the deceased to see Mr Peisley's solicitor (a friend of some 50 years), Mr Goldberg. Mr Peisley and his wife drove the deceased to that appointment. According to their evidence neither was present when instructions were given as to the contents of the will and neither was a witness to the will. Mr Goldberg, a co-executor, who acted for the defendants in these proceedings, gave no evidence as to the circumstances in which that will was made. As noted, in that will apart from a small legacy to the deceased's niece the whole of the estate was left to Mr Peisley and his wife.
92 It seems not unreasonable to infer that, just as he had apparently regarded the bequest of his estate as a "reward" for the Dables' efforts in looking after him, the deceased had by 2006 formed a sufficiently close relationship with Mr Peisley and/or Ms Royal for him to contemplate leaving the estate instead to them.
93 Ms Yolla Dable gave evidence that the last time she saw the deceased was in March 2007 (on which occasion he provided her in advance with moneys referable to any interest due on the accounts held for him). From the words attributed to the deceased, it would appear that he was very conscious of the state of his health at that time. This payment might be thought to be inconsistent with the will provisions being in favour of the Dables, since had they been it would arguably have been unnecessary to have provided, separately, the moneys to cover any tax payable on the interest in the account. However, this was not raised in argument and it seems unlikely that anything turns on it.
94 Shortly prior to the deceased's death (in April 2007) Ms Yolla Dable says the deceased confirmed in a telephone conversation with her that in his will he had left everything to the Dables and said that the instructions to his solicitors were in a package addressed to her in his house. The deceased was, according to Ms Royal, bedridden for a period prior to his death in hospital in April 2007. However, that does not suggest that a conversation of the kind recounted by Ms Dable did not occur.
95 Since the deceased's death, it appears that the executors have made little attempt to quantify any tax exposure the estate may have (necessary before the estate can be finalised). Mr Peisley was given advice (Ex 1, a letter dated 21 April 2008) by accountants as to the outcome of certain enquiries made to the ATO. It appears that there is no evidence of any tax return filed by the deceased since about 1988 (coincidentally, or otherwise, a few years after the time the deceased arranged for Mr Dable to open the first bank account for him).
96 It is not apparent to me why Mr Peisley (or for that matter his co-executor) considers that it is appropriate to defer the quantification of any tax liability of the estate pending the outcome of this litigation, since (whether or not the executors hold the estate on trust for the Dables, on the one hand, or on the other hand for the named beneficiaries under the will, including Mr Peisley and Ms Royal) the executors clearly have a duty as executors to administer the estate.
97 Mr Peisley seemed quite unconcerned in the witness box that nothing had been done to quantify (or meet) any tax liability on the part of the estate. Mr Peisley confirmed that he had not been able to find any tax returns in the deceased's affairs or any of his papers. He accepted that a decision had been made to leave any action in relation to tax liabilities until the case was determined, saying, rather surprisingly, "yes - nothing in the probate that was challenged as to liability". In his oral evidence he suggested that it was once the litigation commenced that he decided not to do anything to determine the tax liability, but the letter of 21 April 2008 was received by him after court proceedings had already been commenced and therefore there is an inconsistency in his response, at least insofar as it suggested that a decision had been made in that regard or steps taken and then changed after the proceedings were commenced.
98 When challenged as to this, Mr Peisley's response was, "[Possibly not]. The fact is the fax had not been secreted. It was found the other day in my own papers" and "First of all, it got confused with some of my own correspondence, as at the time, he was my accountant but also I think once there was a challenge to the estate [which he accepted was a challenge by the Dable family], on consultation with my co-executor [the solicitor acting for him in these proceedings] I thought it would be something we could leave over until we established exactly what had happened" (T 50). There was nothing in Mr Peisley's affidavits about the liabilities of the estate other than an assertion that the estate could continue to expend moneys. There was no reference to any tax liability.
99 Mr Peisley professed to have limited personal knowledge of the state of affairs in relation to the administration of the estate. He said that the estate had been run from Mr Goldberg's office and he assumed that he would have seen a statement on the estate, but that his co-executor would know (T 155). When asked as to the source of his knowledge as to the assets of the estate (and whether that was limited to the knowledge of his advisers) he, quite tartly, responded "Do you want me to read from my affidavit or do you have it in front of you?".
100 Mr Peisley accepted that the source of the information and knowledge in his affidavit was from his solicitor (other than a valuation of the property in Paddington and as to the value of the car) and that he had sworn the affidavit in front of a solicitor from Goldbergs' office. When asked if he had any personal knowledge or whether his knowledge was solely derived from the solicitors, he said, in a dismissive tone, "Part and parcel I would think. They are the executors of the estate and the estate is far from finished. No doubt there will be more outgoings in relation to the estate". When asked whether he was not an active co-executor he said "It would appear so at the moment but no doubt we will sit down at some stage and work through all the details". (My emphasis)
101 I was left with the distinct impression that Mr Peisley was waiting to see what the outcome of the litigation was before deciding whether it was worth his while to do anything actively to finalise the estate. That seems to me to be a matter of concern but its only relevance for present purposes lies in the submissions made as to the disproportionality of the relief.
Contract claim
102 The contract claim is based on the submission that promises made by the deceased to leave his whole estate to the Dables amounted, in effect, to an offer capable of acceptance by the conduct of the plaintiffs in continuing to look after the deceased and thus giving rise to a "unilateral" contract. It was said by Mr Horsley that the nature of such a promise (to leave the whole of one's estate to someone, rather than merely to make a will in that person's favour) was inconsistent with any implication of revocability. In other words, the Dables seek to distinguish this case from cases such as Taylor v Dickens, where, in the absence of a promise not to revoke the will, a promise to make a will in favour of a party was held not to give rise to an enforceable contract (on the basis, in that case, that it would be open, consistently with the contract, for a will to be made and then revoked).
103 The defendants, on the other hand, contend that for the Dables to succeed on the contractual claim it must be established that the promise made by the deceased included a promise never to revoke or alter his will. Reference was made by the defendants in this regard to Barnes v Alderton [2008] NSWSC 107 at [58] in which Young CJ in Eq (as his Honour then was) noted that "people are well aware that everyone can change their will as often as they like" and that the court will infer this unless there is evidence to the contrary.
104 In Gillett v Holt [1998] 3 All ER 917 at 950 Carnwath J referred (in the context of proprietary estoppel) to the statement that one should not count one's chickens before they hatched as being:
[A]n apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard - and should be expected by the law to regard - a representation by a living person as to his intentions for his will.