Daniel v Athans [2022] NSWSC 1712 | Case summary

Daniel v Athans [2022] NSWSC 1712 | Case summary | Zoe

[3]

Introduction

These proceedings concern the estate of the late Richard John Janson (the deceased) who died on 23 April 2019 in a car accident after he suffered a brain aneurysm while driving. The deceased was 67 years of age.
The deceased was survived by his mother, Ms Valerie Janson (Val), and his brother, Mr Kevin Janson. The deceased was also survived by two persons whom the Court has found to have played a significant role in the lives of the deceased and Val, namely Mr Raymond Daniel and Ms Francine Daniel.
The parties and witnesses called in these proceedings often share common family names so I will, without intending undue familiarity or disrespect, refer to the persons involved in the proceedings by their given names where it is convenient to do so.
Raymond, the plaintiff in these proceedings, claims to have been a close friend of the deceased, and, from about 2005 until the date of the deceased's death, a member of the deceased's household and dependent on the deceased for his accommodation. Though still married, Raymond and Francine are separated but remain friends, and Francine says she was, for some period of time, Val's carer.
The deceased did not leave a will and hence died intestate. Letters of administration of the deceased's estate were initially granted to Val on 18 September 2019. The effect of the intestacy provisions in the circumstances was to make Val the sole beneficiary of the whole of the deceased's intestate estate.
The primary assets in the deceased's estate are two real properties at Merrylands West and North Richmond respectively. There are two adjacent parcels of real property at Merrylands West, both of which are relevant to these proceedings. To maintain the privacy of the parties, I propose in these reasons to refer to the deceased's property as No 36 and the adjoining property, owned and occupied by Val at the date of her death, as No 34, in reference to their respective street numbers. Raymond has lived in the deceased's property at No 36 since 2005.
In September 2019, Val instructed her solicitor to prepare a will for her which she executed on 14 October 2019 (Val's 2019 Will). The relevant terms of Val's 2019 Will were: … 2. I APPOINT my friend FRANCINE DANIEL to be my Executor and Trustee ('my Executor'). 3. I GIVE the whole of my estate to my Executor on trust as follows: (a) as to a forty percent (40%) share, for my friend FRANCINE DANIEL absolutely; (b) as to a thirty percent (30%) share, for my friend RAYMOND DANIEL; (c) as to a twenty percent (20%) share, for my son KEVIN JANSON; and (d) as to a ten percent (10%) share, for my friend DIANE CAMPBELL. …
Mr Luke Athans, the defendant in these proceedings, is the biological son of the deceased. In April 2020, Luke visited Val for the first time asserting that he was the deceased's son. The circumstances of Luke's discovery of his parentage are not known to the Court, and Luke's existence was unknown to Val, Kevin, and Raymond until his appearance in their lives in April 2020. The parties now agree, on the basis of subsequent DNA testing, that Luke is in fact the biological son of the deceased.
Subject to the outcome of these proceedings, Luke is therefore entitled to the whole of the deceased's intestate estate as the deceased's only child. Luke's appearance in the lives of Val and Raymond in April 2020 dissolved the basis for the grant of letters of administration to Val, and to her entitlement to the whole of the deceased's intestate estate. It also dissolved the basis upon which Raymond, who had been residing in No 36 until this time ostensibly with Val's consent, could continue to reside in that property.
It is agreed that Raymond and Val were put on notice of results of two DNA tests of Luke in February 2021 and June 2021. Raymond first sought legal advice in respect of the consequences of Luke's appearance in late June 2021. Raymond commenced these proceedings by statement of claim on 10 July 2021. Luke filed his defence on 29 July 2021.
Val made her last will on 30 October 2021 (Val's 2021 Will). The only material difference between Val's 2019 Will and Val's 2021 Will is that Val removed the gift of 10 percent of her estate to Ms Dianne Campbell and increased the gift to Francine from a 40 percent share to a 50 percent share. Val died on 6 November 2021. Probate of Val's 2021 Will was granted to Francine on 28 April 2022.
In his statement of claim, Raymond named Luke and Val as first and second defendant respectively. This was apparently because, as was alleged in pars 3 and 4 of the statement of claim, the Court had granted letters of administration of the deceased's intestate estate to Val on 18 September 2019 but made orders on 5 July 2021 revoking the grant to Val and instead granting letters of administration to Luke.
In his defence filed on 29 July 2021, Luke replied by saying that the revocation of the grant of letters of administration to Val and the issue of fresh letters of administration to Luke had not yet taken place, but that Luke was entitled to the revocation of Val's grant and to the grant of letters of administration in his favour.
The Court is not aware of orders made on 5 July 2021 as alleged in Raymond's statement of claim. For relevant purposes, it is however aware of orders made by Hallen J on 3 August 2022 in the related proceedings concerning the contest as between Luke and Francine, as executrix of Val's estate, over the grant of letters of administration of the deceased's estate, in which his Honour made the following relevant orders: THE COURT IN CHAMBERS: … 2. Orders that Letters of Administration of the deceased's intestate estate granted on 18 September 2019 to Valerie Joan Janson be revoked. 3. Orders subject to compliance with the Probate rules of Court, that letters of administration of the intestate estate of the deceased be granted to the Plaintiff, the sole beneficiary entitled to the whole of the deceased's estate under the operation of the rules of intestacy. 4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
The parties and the Court in these proceedings operated on the basis that the grant to Luke had not been completed in a formal way by the time of the hearing. On that footing, the Court made orders on the final day of the hearing granting administration of the estate of the deceased to Luke for the purpose of permitting Raymond's application to be dealt with, appointing Luke to represent the estate of the deceased for the purpose of these proceedings, and removing Val as a party to the proceedings, pursuant to s 91 of the Succession Act and rr 7.10 and 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) respectively. The Court made no order as to Val's costs.
On 10 December 2021, Hallen J made orders in these proceedings whereby Luke was restrained from entering No 36, interfering with Raymond's quiet possession, and dealing with the property, upon the condition that Raymond pay the water rates, council rates, electricity charges, and the reasonable costs of home insurance of No 36, as well as an occupation fee of $100 per week to Luke, the first such payment taking place on 17 December 2021.
The primary relief sought by Raymond is a declaration that the administrator of the deceased's estate - in the present circumstances, Luke - holds No 36 on trust for Raymond and an order that No 36 be transferred to Raymond. This relief is sought on the basis of an equitable estoppel arising from a series of representations that Raymond alleges the deceased made to him in respect of Raymond's occupation and, later, ownership of No 36.
Alternatively, Raymond seeks an order that the administrator of the deceased's estate pay equitable compensation to Raymond, and in the further alternative an order for further provision from the deceased's estate under Ch 3 of the Succession Act 2006 (NSW). Though it was not sought in Raymond's prayers for relief or pleadings, his counsel's submissions acknowledged that his family provision application has been brought out of time and that an order of the Court is required to allow Raymond to bring that application.
A significant feature of this case is that Val died after the commencement of these proceedings but before the date of the hearing. Before her death, Val made three affidavits which were read in these proceedings, but she could therefore not be cross-examined on that evidence.
Another significant feature of this case is that Luke never knew his father, the deceased. Though his evidence did not give a complete account of his life, it is apparent that Luke made himself known to Val only after the deceased's death. Luke was therefore unable to give any evidence relevant to the events that Raymond alleges gave rise to the equitable estoppel in respect of No 36. Luke called as witnesses two long-time friends or acquaintances of the deceased whose evidence, if accepted, would tend to cast doubt on the quality of relationship between the deceased and Raymond, but whose evidence I have not found persuasive on the issues in this case.
By contrast, the evidence given by Raymond and his witnesses has painted a clear picture of the deceased's family life and the integral role that Raymond and Francine played in supporting Val and the deceased as part of an initial arrangement struck between Raymond and the deceased sometime in late 2004 or early 2005, and which evolved into a new arrangement sometime in around 2016.
The Court was left to come to the compelling conclusion that the deceased - in circumstances where he was apparently oblivious to the existence of his son, was of the reasonable expectation that he would survive his elderly mother, and where he maintained a pleasant but relatively distanced relationship with his brother, the only surviving member of his family - intended that Mr Daniel, his closest friend, would be the recipient of his property at No 36.
In the result I have concluded that Mr Daniel has succeeded in his equitable estoppel claim and that the appropriate remedy is a declaration that Luke, as administrator of the deceased's estate, holds No 36 on constructive trust for Raymond. It has been unnecessary to determine the alternative family provision application, but I have proceeded to make some nominal findings on that part of the proceedings at the end of these reasons.

[4]

Equitable estoppel claim - overview of the claim

In circumstances where there has been "an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff", the Court may grant relief to vindicate the assumption in whole or in part: Giumelli v Giumelli (1999) 196 CLR 101 at 112; [1999] HCA 10 at [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 488; [2010] NSWCA 84 at [21] (Handley AJA, with whom Allsop P and Giles JA agreed at 485 [1] and 486 [6] respectively); Sidhu v Van Dyke (2014) 251 CLR 505 at 511; [2014] HCA 19 at [2] (French CJ, Kiefel, Bell and Keane JJ). This describes the species of equitable estoppel known as proprietary estoppel by encouragement: Trentelman v The Owners - Strata Plan No 76700 (2021) 106 NSWLR 227 at 257; [2021] NSWCA 242 at [116]-[117] (Bathurst CJ, with whom Bell P and Leeming JA agreed at 267 [170] and 267 [171] respectively).
In Trentelman v The Owners - Strata Plan No 76700, Bathurst CJ set out (at 257-8 [117]-[118]) what I respectfully consider to be the contemporary state of the law in respect of what a plaintiff must prove to establish a claim for proprietary estoppel by encouragement. The Chief Justice drew on the authoritative statement of Handley AJA in Delaforce v Simpson-Cook at 488 [21] and the observations of Keane J in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at 45-6; [2016] HCA 26 at [147]-[150]. The elements to be proved are that: 1. An owner of property (the representor) has encouraged another (the representee) to alter his or her position in the expectation of obtaining a proprietary interest; and 2. The representee has relied on the expectation created or encouraged by the representor; and 3. The representee has changed his or her position to their detriment; and 4. The detrimental reliance makes it unconscionable for the representor to depart from the promise or representation.
Raymond pleaded his equitable estoppel claim in pars 11 to 26 of his statement of claim. It will be convenient to make some observations on the pleadings against the backdrop of the legal framework just stated.
Raymond's case is pleaded in two tranches, each of which consists of a pleading as to representations made by the deceased to Raymond and a subsequent pleading as to Raymond's response to these representations in the form of work and assistance rendered to the deceased and Val.
The first tranche concerns what the pleadings refer to as the "2005 Representations", pleaded at par 11: 11. In late 2004 the deceased made express oral representations to Raymond to the effect that if he: a. looked after Val when the deceased was not around; b. helped the deceased to clean up [No 36]; and c. assisted to pay the bills and rates; then Raymond would be able to occupy [No 36] as long as he wished. ("2005 Representations")
Raymond's pleading does not particularise the precise words of the representation or representations made by the deceased to him. The flexible quality of the pleading had the effect that Raymond was free to particularise the representation or representations through his evidence.
The significance of this flexibility is that, beyond being satisfied that the deceased made representations of the tenor pleaded, it will be necessary for the Court to determine whether, as Luke ultimately submitted, the representations made by the deceased gave rise to any conditions, explicit or implicit, which have not been satisfied, and which would have the effect that Raymond is precluded from relief.
Raymond then pleaded at pars 12 to 14 that, from early 2005 to 2016, Raymond rendered what the pleadings refer to as the "Initial Work and Assistance" in respect of No 36 and of Valerie which Raymond claims to have undertaken in reliance on the 2005 Representations and which the deceased ought to have known was undertaken in reliance on those representations.
The second tranche concerns what the pleadings refer to as the "2016 Representations", the pleading of which has the same flexible quality as the pleading of the 2005 Representations. That pleading, at par 15, reads: 15. In early 2016 the deceased made express oral representations to Raymond to the effect that: a. he would give [No 36] to Raymond. b. [No 36] belonged to Raymond.
It is important also to note the subsequent pleadings as to the nature of the 2016 Representations: 16. Between 2016 until his death, the deceased asserted in conversations with friends that [No 36] belonged to Raymond. 17. Between 2016 until his death, the deceased had conversations with his mother Val in the presence of Raymond regarding the arrangements to transfer ownership of [No 36] to Raymond.
There is a hedging quality to these pleadings. On the one hand, Raymond has pleaded that the deceased made representations that Raymond was presently entitled to No 36, at least in some unregistered, de facto sense: pars 15(b), 17. On the other hand, Raymond has pleaded that the deceased made representations that Raymond would later be entitled to No 36 after the deceased undertook to transfer ownership of No 36 to Raymond in a registered, legal sense: pars 15(a), 16. As will be seen, this became an issue between the parties in circumstances where the deceased died before effecting the legal transfer of No 36 to Raymond.
Raymond then pleaded at par 19 that, from 2016 onwards, Raymond rendered what the pleadings refer to as the "Further Work and Assistance" in respect of the two Merrylands West properties and of Valerie.
The difference in the expectations said to have been induced by the two tranches of representations has the effect that Raymond's equitable estoppel claim can, on one reading, operate as two claims with two potentially different outcomes. The claim based on the 2005 Representations pleads an expectation that Raymond would be entitled to occupy No 36 as long as Raymond wished, in respect of which the appropriate relief would likely be in the form of an irrevocable licence or life interest in the property: see Evans v Evans [2010] NSWSC 170 at [39]-[41] (Brereton J, as his Honour then was); cf Evans v Evans [2011] NSWCA 92 at [11] (Campbell JA, with whom Giles JA and Sackville AJA agreed at [1] and [151] respectively). In contrast, the claim based on the 2016 Representations pleads two expectations, in respect of either of which the appropriate relief would likely be in the form of the institution of a constructive trust over No 36 in Raymond's favour and an order causing the transfer of No 36 to him.
It is relevant that, by contrast with common law rights created by contract, the equity giving rise to equitable estoppel is not prospective in nature, rather it is retrospective; that is, "[t]he equity involved in proprietary estoppel operates by considering whether it would be contrary to good conscience (measured according to equity's standards) for a defendant to disappoint the expectation that the plaintiffs have. The relevant time for the consideration is the time that the defendant seeks to disappoint that expectation": Evans v Evans [2011] NSWCA 92 at [107] (Campbell JA).
In that context, as a matter of doctrine, a claim on the basis of the 2016 Representations requires the Court to carefully assess the evidence of those representations and the events which followed them until such time, in this case, as the administrator of the deceased's estate sought to disappoint Raymond's expectation. But, both as a matter of doctrine and a matter of forensic reality, whether the later representations were in fact made and whether those later representations have the legal significance alleged are questions that can only be answered within the context of the relevant history preceding the later representations, which includes the fact of the earlier representations and subsequent conduct of the parties: see Evans v Evans [2011] NSWCA 92 at [104]-[110] (Campbell JA).
The outcome is that Raymond can succeed in an equitable estoppel claim on the basis of either tranche of representations and subsequent conduct. If the Court is satisfied that Raymond is successful in respect of the earlier tranche, it is not precluded from being satisfied that Raymond is successful in respect of the later tranche, on the basis that the later tranche becomes operative from such time as the elements of the claim are satisfied and gives rise to its own relief independent of any relief arising from the earlier tranche. Of course, however, success on the earlier tranche would precipitate different relief than success on the later tranche, and success in respect of one tranche does not precipitate success in respect of the other, though success in respect of the earlier tranche has an evidentiary effect on the success or otherwise of the later tranche.
As in all civil proceedings, but especially in a case such as this where the primary allegations pertain to representations in respect of ownership of residential property made by persons who are now deceased and unable to give evidence or be tested on it, the Court applies the mode of judicial philosophy embodied in s 140 of the Evidence Act 1995 (NSW) and the oft-quoted statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34. Section 140 provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (at 361-2), Dixon J stated: … The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. …
The evidence adduced in this case was limited by certain forensic realities. One matter referenced above is that both the deceased and Val are now deceased such that the former was unable to give evidence and the latter was unable to be cross-examined on her affidavit evidence. I accept Luke's submission that "the Court exercises caution in weighing any evidence of any alleged conversation with a deceased person": Sarant v Sarant [2020] NSWSC 1686 at [92] (Hallen J), citing Plunkett v Bull (1915) 19 CLR 544 at 548-9 (Isaacs J); [1915] HCA 14.
I also accept Luke's submission that the Court looks for corroboration of communications with deceased persons, and treats "uncorroborated evidence of such communications with considerable caution": Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 (McLelland CJ in Eq), quoted in Sarant v Sarant at [94] (Hallen J). However, as Hallen J noted in Sarant v Sarant at [96], there is "no absolute legal requirement" for corroboration of such communications, and the fact that a claim relies significantly on such communications is not of itself fatal to the claim. In the circumstances, I have treated evidence of the deceased's and Val's words and conduct with an appropriate level of scrutiny when considering the evidence as a whole.
It is important that the first of Val's affidavits read in these proceedings was an affidavit dated 28 January 2021 in related proceedings in which she sought her own family provision application from the estate of the deceased and was therefore evidence given before Raymond ever sought legal advice in respect of his own claim. The evidence contained in that affidavit possesses an element of independence from Raymond's claim which, at times, had the effect of differing from some of Raymond's evidence. It cannot be said that the evidence given in that affidavit was wholly aligned with Raymond's interests, yet it nonetheless tended to confirm important aspects of Raymond's claim.
I have accepted Raymond as a witness of truth. In cross-examination, he exhibited a palpable affection for his friend, the deceased. Raymond was prone at times to wander from questions which he perhaps perceived to impugn the honour of the deceased or to add too great a technical dimension to his relationship with the deceased. I understood Raymond's occasional excursions from direct questions not as an obfuscation of the truth but as an understandable reaction given the emotion wrapped up in the proceedings. He readily made concessions against interest, including in respect of the deleterious effects of his problem gambling on his marriage and his financial wellbeing.
In cross-examination, Raymond accepted that he had continued to place bets at the TAB until October 2021, and further accepted that he had not disclosed expenditure on gambling in his affidavit evidence. Raymond accepted that he could have disclosed that information if he had been so minded but denied that he knew he had to disclose that information. Without disregarding the obligation on all applicants for family provision to disclose their financial and material circumstances fully and frankly, I am not minded to draw from this apparent failure of disclosure an inference that Raymond was any less credible a witness. Raymond's counsel acknowledged that Raymond's disclosure of his expenditure on his entertainment was probably an underestimate but submitted that it was not a deliberate falsehood. Raymond did not shy away from acknowledging his issues with gambling.
Naturally, Raymond bears the onus of proof in establishing his claim on the balance of probabilities, informed by the principles set out above. Nonetheless, another important forensic matter referenced above is that Luke was not present in the life of the deceased at all and was therefore unable to give evidence bearing directly on the arrangement forming the basis of Raymond's equitable estoppel claim. Instead, Luke's factual defence of the claim relies on the evidence of Ms Dianne Campbell, a neighbour of the deceased's North Richmond Property, and Mr Raymond Esber, a long-time friend of the deceased, and on the cross-examination of Raymond and his witnesses. It has ultimately been important to take into account the capacity of each witness to observe the daily lives of the deceased, Val and Raymond in Merrylands West over the course of some 23 years between the first meeting of the deceased and Raymond in 1996 and the deceased's unexpected death in 2019.
Luke's case on the equitable estoppel claim essentially consisted of the following submissions: 1. There is no corroboration of the 2005 or 2016 Representations in Val's affidavits; and the corroboration thereof by Francine is limited and makes no reference to Raymond "staying for good" at No 36. 2. The 2016 Representations, as deposed to by Raymond (that the deceased told Raymond that, when Val died, the deceased would sell No 34, move to the North Richmond Property, and give No 36 to Raymond) are not operative in circumstances where the deceased died before Val. 3. If the representations were as Raymond says, no reasonable person in the position of Raymond could apprehend that they would have given rise to a right to reside in the property for life or to a life estate. 4. Raymond cannot be said to have suffered detrimental reliance in circumstances where he has received the benefit of free accommodation in No 36 from 2005 until 17 December 2021. 5. The expenditure Raymond alleges to have laid out in respect of the arrangement under which he resided at No 36 are not of a nature or extent that would constitute detrimental reliance in the circumstances of the case. 6. The imposition of a constructive trust would be disproportionate to any detriment that Raymond may have suffered, and the appropriate remedy (if any) would be an award of equitable compensation.
It will be convenient first to set out the history of those facts which were not reasonably in dispute before turning to those facts over which there was some level of contest. Factual matters in dispute will be referenced in the following overview and then considered in detail afterwards.

[5]

Background history

The deceased was born on 7 November 1951 and lived to the age of 67 years. The deceased was born to his mother Val and his father Mr Robert Janson, and they and Kevin lived together in a house in Binda Street, Merrylands West when the deceased was born. In about 1968, Val inherited No 34. Kevin remained in Binda Street and Val, Robert and the deceased moved into No 34.
Raymond was born in April 1965 and was 57 years of age at the date of the hearing. Francine was born in October 1968 and was 53 years of age at the date of the hearing.
Luke was born in October 1976 and was 45 years of age at the date of the hearing. As stated, until Luke's appearance at Merrylands West in April 2020, his existence was unknown to Val, Kevin and Raymond. Val was not aware of the deceased ever having been married or having been in a de facto relationship or having had children.
Val and Robert separated in about 1985 and Robert moved to the North Richmond Property while the deceased remained at No 34. On 30 July 1991, Kevin sustained a brain injury which left him hospitalised, and Kevin now resides in aged care.
Mr Luigi Pennetta and his wife Maria lived at No 36 from some time in the early 1970s when they purchased the property and were therefore the Jansons' neighbours through much of the 1970s and 1980s. Mr Pennetta sold No 36 to the deceased in or around 1985. Mr Pennetta said that the deceased wanted to purchase No 36 because it was next door to his mother.
Raymond and Francine's daughter Jazmina was born in July 1991 and Raymond and Francine were married in October 1991. Raymond and Francine bought their first home in Smithfield in 1995. From at least the time of his marriage to Francine, Raymond worked from time to time as a taxi driver.
Dianne Campbell first met the deceased and Robert in 1992 when she moved into her home in North Richmond, which is opposite the North Richmond Property in which Robert was living at the time. From about 2009 onwards Dianne started making dinners for Robert which she would take over to him.

[6]

1996 to 2016: Raymond and deceased meet, Raymond moves in

Raymond first met the deceased sometime in 1996. They met at the Merrylands West TAB where it appears Raymond and the deceased were both regular patrons. After their first meeting at the Merrylands West TAB, Raymond and the deceased would regularly meet there at least four days per week, and they became good friends. The deceased gave Raymond the nickname 'Cabbie'.
In December 2002, Raymond and Francine separated and sold their house in Smithfield. Francine moved with Jazmina to Francine's parents' home and Raymond moved in with his parents. Sometime in the middle of 2003, Raymond and Francine attempted to rekindle their marriage and they began renting an apartment in Sherwood Road, Merrylands West.
Francine first met the deceased in mid-2003 at Merrylands West TAB. Francine would often pick Raymond up from the TAB between mid-2003 and early 2004 and she observed that Raymond was regularly standing with the deceased.
Three personal matters arose for Raymond in 2004. First, at the age of 12 years, Jazmina began to complain of bad headaches, and, after collapsing on a number of occasions without warning, Jazmina was diagnosed with a brain tumour. Secondly, Raymond and Francine separated again sometime in the middle of the year, and Francine and Jazmina moved back in with Francine's parents. Thirdly, by the end of year, having fallen behind on his rent, Raymond's real estate agent had begun to threaten him with eviction and also contacted Francine in respect of the arrears.
By the end of 2004, Raymond and the deceased had been friends for about eight years. The deceased would often ask Raymond about his situation and, one on occasion, counselled Raymond to take a break from attending the TAB. Raymond accepted this advice, took a break for three days, and then returned to the TAB. Raymond alleges that the deceased first made the 2005 Representations on the day of his return to the TAB. There is dispute as to the content of the representations made on this day. Two days after the alleged day of the 2005 Representations, the deceased brought Raymond to No 36.
The deceased was a hoarder of household and industrial items which he would store both inside and in the yards of both No 34 and No 36, a behaviour which Val appears to have tolerated. In early 2005, Raymond helped the deceased to move a significant quantity of these items out of the main rooms of No 36 and into the garage. Raymond paid about $80 for the cleaning of the carpets and $180 for No 36 to be fumigated, and the task of moving the items was a full-time effort taking one and a half weeks to complete.
The deceased was also careful with money and retained possessions in a frugal manner perhaps consistent with his hoarding behaviours, but he was not completely close-fisted. The deceased appears to have sponsored children in the Philippines and to have done some electrical work for Dianne Campbell without charge. This was a matter which appeared to be in dispute during the hearing, but which Luke later accepted as a background fact relevant to the context in which any representations made by the deceased would have been understood. It is clear as well that the deceased was an avid punter.
Raymond moved into No 36 a few weeks after the first work undertaken on No 36 as set out above. Raymond has lived in No 36 from the time he first moved into that property in 2005 on a full time and permanent basis until the present day.
After Raymond moved into No 36, the deceased instructed Raymond on what Raymond was to do in respect of Val, No 34 and No 36. Raymond was to answer the door at No 36 when the deceased was not around to let people know that Raymond was living there. A few times each night, Raymond was to walk over to No 34, knock on the window and check that Val was alright and whether she needed anything. The deceased showed Raymond the location of a hidden spare key to No 34.
Unless Raymond was away from No 36, every night he would leave the porch light on at No 36, and would, twice a night, walk over to No 34 and check on Val by knocking on the window. Raymond would drive Val to and from the local IGA and Merrylands RSL Club twice a week, and would sometimes walk to the shops himself and carry the groceries home for Val. There was a preponderance of evidence provided by different witnesses in respect of care services provided by Raymond and later Francine to Val during Val's lifetime, and in respect of financial contributions made by Raymond to the repair and maintenance of No 36. I have not taken Luke to have disputed in any serious way that Raymond undertook the "Initial Work and Assistance" or "Further Work and Assistance" that Raymond alleges to have undertaken, but there was some dispute as to its legal significance and it will be appropriate to set out more fully the evidence concerning the care rendered to Val and the contributions of Raymond to No 36 in the sections below concerning the 2005 Representations and 2016 Representations.
In 2009, the deceased asked Raymond for help in acquiring a taxi licence and the deceased passed his taxi course with Raymond's assistance. Raymond gave the deceased the nickname "Cab".
In 2010, Raymond's daughter Jazmina underwent surgery in respect of her brain tumour. Raymond began to feel anxious and depressed and reduced his work hours significantly. The deceased took care of Raymond for a period of 6 to 7 months, in which the deceased did all the shopping for Raymond and the deceased consoled Raymond.
In or around 2015 or 2016, the deceased and Raymond had a conversation in which the deceased said to Raymond: "Cabbie, there is one thing I would never do, and that is put my mother in a nursing home. I want you to promise me that if anything ever happens to me, you will look after my mother until the day she is laid to rest. Never ever put her in a nursing home." Raymond replied: "Cab, one hundred percent I will never put her in a nursing home."

[7]

2016 onwards: alleged change of arrangement, deceased dies

In March or April 2016, Raymond alleges that he and the deceased had a conversation from which the 2016 Representations were said to have arisen. There is a dispute as to the content of these representations.
In late 2016, Raymond's daughter Jazmina moved to Los Angeles. Jazmina had asked both Francine and Raymond to help her with the move, but Raymond declined, prompting a conversation between Raymond and Francine which tends to confirm Raymond's allegations in respect of the 2016 Representations. This evidence will be considered below.
Mr Jack Chemuel is a friend of Raymond of about 15 years who first met the deceased at the Merrylands West TAB around 2015. In or around April or May 2017, Jack moved into No 36 with Raymond after Raymond and he discussed that Jack could stay there on the basis that Jack would contribute about $100 per week towards groceries. Jack resided at No 36 for about one and a half years.
At the outset, Jack protested that he ought to speak to the deceased about this arrangement because he knew that the deceased owned No 36, but Raymond told him that that was unnecessary. Upon Jack asking the deceased whether the deceased was happy with the arrangement discussed by Jack and Raymond, the deceased told Jack that the arrangement would have nothing to do with the deceased because No 36 was Raymond's place.
On two occasions during his stay at No 36, Jack complained to the deceased about the state of the walls and the air conditioning at No 36, to which the deceased replied that No 36 was Raymond's place and that Jack should take up those issues with Raymond. Raymond subsequently purchased paint and a new air conditioner. When Jack observed that Raymond spent his own money on these repairs, Jack asked Raymond why this was the case, to which Raymond replied: "[The deceased] promised me when the old lady dies, this place is mine, and that's why I look after it and spend the money."
In around early 2019, the neighbouring properties at No 30 and No 32 of the same street as No 34 and No 36 had been demolished and new houses were being built on the properties. The deceased was approached by the developer of those properties about selling both No 34 and No 36. Raymond recounted the conversation he and the deceased had afterwards, in which the deceased said: "I told [the developer] to come see me when the old ladys (sic) gone and he'd have to speak to you about your place".
The deceased had a medical episode while driving on 23 April 2019 and was involved in the car accident that resulted in his death. Raymond was contacted by a police officer who told Raymond that Raymond was listed as the deceased's next of kin in the Roads and Maritime Services records.
Raymond and Francine were the ones to break the news of the deceased's car accident to Val at No 34 and they took Val to Westmead Hospital where the deceased had been transported. After learning of the deceased's death at the hospital, Val asked Raymond and Francine that they not leave her. Raymond told Val that he would never leave her, in honour of the deceased. When a social worker approached Val to discuss Val's living arrangements, Val, Raymond and Francine discussed with the social worker that Raymond and Francine would continue to support Val so that she would not need to go into aged care. Raymond told the social worker that he had made a promise to the deceased that Val would never go into aged care.
Raymond and the deceased shared a close friendship. The deceased and Raymond would regularly visit one another across No 34 and No 36 and have hours-long conversations. The pair were known as close friends by their fellow regular patrons of the Merrylands West TAB. Raymond and Francine organised the deceased's funeral and Raymond wrote the eulogy.

[8]

Other relevant matters

In the period from 2005 to about 2017, Raymond would assist the deceased with the payment of rates and utilities for No 36. Raymond would pay the deceased for any bill presented to him by the deceased. Raymond also assisted the deceased with the payment of council and water rates at the North Richmond Property. Raymond's contributions to the rates bills were for the whole amount at times and for partial amounts at other times. The deceased stopped asking Raymond for money for the rates at North Richmond after a dispute between the deceased and Hawkesbury Council over an increase in rates.
I have set out the history of procedural events from the deceased's death until the date of the hearing. To that history can be added Raymond's evidence that he did not at first believe Luke's assertion of his parentage by the deceased since the deceased never told Raymond that the deceased had any children. I also accept Raymond's evidence that, until such time as he sought legal advice about his rights in late June 2021, he was not aware of his right to claim provision from the deceased's estate or of the time limitation on making such a claim.
The parties tendered a joint exhibit (PD1) setting out agreed facts in respect of the rent which might be obtained for properties in Merrylands West and for No 36 specifically. The relevance of this evidence is its use by Luke to submit that Raymond did not suffer the sort of detriment recognised in equity as giving rise to an equitable estoppel where he was enjoying rent-free accommodation in No 36. The exhibit provides, relevantly, the following agreed facts: 1. The rent which might be obtained for a 3 bedroom Merrylands home in proper condition is as follows […]: a. 2005 - $250 per week. b. 2007 - $300 per week. c. 2009 - $320 per week. d. 2010 - $320 per week. e. 2013 - $360 per week. f. 2017 - $440 per week. 2. The rent which might be obtained for 1 bedroom Merrylands home in proper condition is as follows […]: a. 2005-2007: unknown. b. 2008-2010: $165 per week. c. 2010-2012: $185 per week. d. 2012: $255 per week. e. 2013: $265 per week. f. 2014-2017: $280 per week. g. 2017: $280 per week. 3. The agreed market rent for the property at [No 36] for the period after the deceased's death on 23 April 2019 is $365 per week.
Raymond accepted in cross-examination that his contributions requested by the deceased were much less than the $380 per week which Raymond had been paying in rent for his unit in Sherwood Road, Merrylands West.
Raymond also accepted in cross-examination that he had never accumulated any asset of significance during his life because of his gambling problem, and that the difference between his expenses on No 36 and the rent he might otherwise have paid elsewhere would have allowed him to accumulate funds to invest in property.
On the final day of the hearing, the parties foreshadowed the tendering by the defendant of two pieces of correspondence whereby Luke's solicitors advised Val's solicitors of the results of two DNA tests proving Luke's parentage by the deceased. The first was a letter to Val's solicitors dated 15 February 2021 attaching DNA test results of 12 February 2021, and the second was an email to the Associate to Hallen J, copying Val's solicitors, dated 15 June 2021 attaching DNA test results of 14 June 2021. I will make an order in chambers for the tender of these documents as exhibits, and I have considered the written submissions of the parties sent to my Associate after the completion of the hearing in respect of the exhibits. The overriding point of the submissions was to reveal the agreement of the parties that Val would have appreciated the effect of the DNA tests by June 2021.

[9]

Factual dispute - the deceased's place of residence over time

The fact of which property or properties the deceased resided in throughout his life is relevant to both the equitable estoppel claim and the family provision application in this case. It is relevant to the former insofar as Raymond claims that the deceased resided for some period at No 36 prior to the 2016 Representations and then ceased to reside at No 36 after the 2016 Representations, and relevant in addressing the substance of some of Luke's evidence and submissions that Raymond occupied No 36 as a lessee. It is also relevant to the family provision application insofar as common household membership is a requisite element of Raymond's eligibility under s 57(1)(e) of the Succession Act.
The deceased's death certificate lists his place of residence as No 34. Given that Val is listed as the informant on the deceased's death certificate, it can be inferred that she provided this information to the Registry of Births, Deaths and Marriages. The same can be said of the letters of administration in respect of the deceased's estate which also list the deceased's place of residence as No 34. These instruments are significant pieces of objective evidence, created before Luke ever appeared at Merrylands West, supporting a finding that the deceased resided at No 34 at the time of his death.
Val's evidence in her affidavit of 28 January 2021, filed initially in the related proceedings in which she pursued a family provision application, was that she and the deceased lived together at No 34 on a full time and permanent basis from the date of the deceased's birth until the date of the deceased's death. She gave this evidence alongside assertions that she and the deceased were interdependent from around 1985 and that they were living in a close personal relationship at the time of the deceased's death. Val's evidence in this respect is clearly directed to the pursuit of her family provision application. Nonetheless, Val also deposed that the deceased occasionally visited the North Richmond Property and would sometimes spend the night there if he had an accountant's appointment or had a job to do electrical work in or around the Richmond area.
Val gave evidence in her affidavit of 28 January 2021, in the context of her family provision claim against the estate of the deceased, that she and the deceased contributed to each other's welfare financially and otherwise. She said that she and the deceased were heavily reliant on each other. To summarise that evidence: 1. The deceased undertook domestic duties at No 34 such as feeding the cats, maintaining the lawns, and taking out the bins. The deceased attended to all the maintenance and repairs of No 34, including all plumbing and electricity repairs and paid all expenses in connection to the same. The deceased purchased Chinese food every Friday night for dinner and fish and chips on Saturday for lunch and shared these meals together. The deceased watched television with Val at No 34 every evening. 2. Without having a formal arrangement, the deceased and Val split the payment of household and everyday living expenses. The deceased paid for maintenance and repairs costs (in full), petrol for the lawn mower (in full), petrol for the car (in full, though Val later says that she gave him sundry cash for petrol), telephone bills (in full), and home and contents insurance of No 34. They split food and groceries and the costs of dining out and entertainment. Val estimated their contributions were roughly equal on the payment of bills. 3. The deceased regularly transported Val to and from medical appointments, shopping centres, and social events at the Merrylands Bowling Club. 4. Val attended to household chores within No 34, including washing, ironing and cleaning; cooking meals for herself and the deceased; answering the phone and collecting the mail; and contributing money for petrol occasionally. 5. Val allowed the deceased to live in No 34 rent free. Richard also had the benefit of the sole use of Val's car.
In a later affidavit of 22 October 2021, Val said that, when a bill fell due, at least on a monthly basis, the deceased usually handed Val an envelope with money for the payment of some of Val's bills.
Further in her affidavit of 28 January 2021, Val gave evidence that she was not cohabitating with another person but explained that there had been no fence between No 34 and No 36 for as long as she could remember, and that she and the deceased would regularly visit No 36 and that Raymond would regularly visit No 34, often multiple times per day. In evidence was a photograph taken from the backyard of No 36 looking over the backyard of No 34 which suggested that there was little separation between the two backyards. In her affidavit of 22 October 2021, Val gave evidence that the deceased spent more time at No 36 than he did at No 34, and that the deceased and Raymond were good friends who got on well together and that the deceased spent hours at No 36 talking with Raymond.
There was photographic evidence of the rooms at No 36 that the deceased used for storage of furniture and personal effects and of the deceased's bedroom at No 36. The storage rooms appear significantly cluttered with household items and upturned furniture, and the ceilings appear collapsed in places. By contrast, the photographs of the deceased's bedroom where he kept his cloths and toiletries and slept depict a more organised space.
In his affidavit of 10 July 2021, Raymond gave evidence that, between 2005 and 2016, the deceased used No 36 as at least one of his homes, and then that, after the 2016 Representations in March or April of 2016, the deceased ceased to use No 36 as his home and treated Raymond in a real way as the owner of No 36.
In respect of the period from 2005 to 2016, Raymond said that the deceased kept a key at No 36 and that the deceased did not knock before entering No 36. The deceased used two of the rooms at No 36 in which he kept clothes and household effects. The deceased would sleep once a month at North Richmond, three or four nights of the week at No 34, and the rest of the time at No 36. The deceased usually ate dinner with Val at No 34. Raymond would also cook for the deceased and they ate together from time to time. The deceased showered at No 36, washed and dried his clothes at No 36, and would stock No 36 with food. Raymond and the deceased shared at least some grocery items.
In respect of the period from 2016 until the deceased's death, Raymond said that, from the day after the date of the 2016 Representations, the deceased stopped using his set of keys to enter No 36. The deceased began knocking at the door of No 36 and would wait for Raymond to invite him in. The deceased expressed to Raymond that it would not be right for the deceased to enter No 36 when Raymond was not around, even for the deceased to pick up items from the deceased's room at No 36, because No 36 was Raymond's place. As will be seen, this is important evidence concerning the 2016 Representations and is explored later in these reasons.
As has been set out above, Jack Chemuel and Raymond gave evidence of conversations with the deceased about the repair and redevelopment of No 36 which indicated that the deceased treated No 36 as Raymond's property, insofar as the deceased did not consider himself the authority over the property and directed questions about the property to Raymond. These instances occurred after 2016.
Francine's evidence in cross-examination was that the deceased was living full-time with his mother at No 34 "as far as [she] was aware but [she did] know that he had a bedroom set up for him at No 36."
Kevin's evidence in cross-examination was that the deceased lived full-time with Val at No 34 until he died. Kevin did not reference whether the deceased ever lived at No 36. Kevin's affidavit evidence recounted instances in 2017 and 2018 or 2019 which implied that the deceased was not living at No 36 at those times.
Dianne Campbell gave evidence that she would see the deceased frequently attend his father's property, usually about three times per week, although on rare occasions she would not see the deceased there for up to a few weeks. Dianne did not contextualise this observation by reference to any particular year or period of years.
Raymond Esber said in his affidavit that he would visit the deceased at No 34. As will be explored later, the evidence of Dianne Campbell and Raymond Esber tends to support a conclusion that Raymond (Daniel) was the deceased's tenant at No 36, a conclusion that I have not ultimately accepted. This position is contrary to Raymond's case as a whole, and to the proposition within Raymond's case that the 2016 Representations symbolised a turning point at which the deceased chose to cease exercising authority over No 36. The position implied is that the deceased resided at No 34 and that he used No 36 as an investment property.
Luigi Pennetta gave evidence that the deceased had, at some early time in the mid-1980s, leased No 36 to tenants but that the deceased had decided not to lease No 36 any further after a negative experience of those tenants.
All the evidence justifies the uncontroversial conclusion that the deceased resided at No 34 at the date of his death. As to whether the deceased ever resided at No 36 and, in particular, whether he resided there until he made the 2016 Representations, I am satisfied the deceased resided across both No 34 and No 36 until the time that Raymond alleges the 2016 Representations to have occurred, at which time the deceased commenced treating No 36, in practical terms, not with the unrestricted authority of the owner of one's own property, but rather as Raymond's property. I have come to this conclusion because the evidence satisfies me that the deceased, until the time of the 2016 Representations, came and went from both No 34 and No 36 as he pleased and had the space to sleep in either house as he desired, but that after that time he regarded matters concerning the state of repair of No 36 as matters for Raymond, and not him, to address; the deceased would not enter No 36 without Raymond's invitation; and the deceased treated the occupation of No 36 by Jack Chemuel as a matter solely within Raymond's discretion.
I reach this conclusion notwithstanding that the deceased kept a bedroom and storage rooms in No 36 and spent substantial periods of time at No 36 until his death, and that there is nothing in the evidence of any of the witnesses that excludes a finding that the deceased slept at No 36 from time to time and used some part of No 36 for storage, even after the time of the 2016 Representations. I am satisfied that, to the extent that these facts were true in the wake of the 2016 Representations, it was Raymond that permitted this state of affairs to continue after that time. That is consistent with the broader picture of a decades-long friendship conducted across two neighbouring properties, in which Raymond would have felt an understandably profound sense of gratitude for the generosity of his closest friend so as to allow the deceased to use No 36 for storage and as a place to stay apart from his mother from time to time.

[10]

Factual dispute - the 2005 Representations

There is next a factual dispute as to whether the 2005 Representations were made and, if so, what the content of those representations was. These are really the same question, in circumstances where, as I understand it, Luke has accepted that some representations must have occurred which led to Raymond residing in No 36 from 2005 until the present. The issue is as to what the deceased represented to Raymond in late 2004 or early 2005.
The first of Luke's submissions in respect of this factual question was that the 2005 Representations were not corroborated by Val's affidavits and were only corroborated by Francine's evidence to a limited extent. I will treat Francine's evidence separately below, but for present purposes it bears remarking on Val's evidence in this respect.
In her 28 January 2021 affidavit, after setting out at length the contributions she and the deceased made to one another's wellbeing, Val said (at pars 21-22) that Raymond had lived at No 36 from about 2005 on a full time and permanent basis, that she would often hear the deceased tell Raymond to look after her when the deceased left home, and that Val would ask after Raymond to the deceased if she did not see Raymond for a couple of days.
Val then said (at pars 40-41) that, after the deceased's death, she became heavily dependent on her carer, Francine, and her neighbour, Raymond, for all her daily care needs and for the upkeep of No 34. Summarising that evidence, Val said: 1. Raymond would attend in the morning every day to bring a copy of the newspaper and feed Val's cats and would attend in the afternoon to feed the cats again. Raymond would maintain Val's lawns and gardens. 2. Francine would attend from about 9:00am to about 7:00pm every day, provided Francine had no prior commitments. There, Francine would shower Val every second day, and this would occur in No 36 because No 34 did not have the facilities to shower Val in this way. 3. Francine used household appliances in No 36 belonging to Raymond for Val's benefit. Val would receive treatment for her breast cancer at No 36 because No 34 was cluttered with the deceased's belongings. Val would spend time with Raymond and Francine at No 36. 4. Francine would prepare Val's lunch and dinner and they would eat meals with Raymond at No 34. Francine and Raymond would pick up Chinese food and fish and chips for Val in an effort to continue the traditions shared by Val and the deceased. 5. Ray and Val had a system whereby Raymond would leave on the front light at No 36 to tell Val he was home safe and because it made Val feel safe to know Raymond was around. If the light were not on, Val would call Francine to contact Raymond to ask after him.
In the context of both Luke's claim to No 36 on intestacy and her own family provision application, Val made the following relevant observations in respect of Raymond (emphasis added): 42. If [No 36] is no longer an accessible resource to me then: a. Ray and Francine will no longer be able to care for me the same way they have been. Ray will need to find alternative accommodation, and I believe Francine will not be able to visit as often. … a new carer will not be able to provide me with the level of love and friendship I need, and have, with Ray and Francine for the last 16 years. I believe Richard would have wanted the arrangement between Ray and I to continue after his death. … c. I am unsure how I will cope without Ray residing next door. He has been a great source of strength to me after the passing of Richard. As an elderly lady who lives alone, Ray makes me feel safe. If Ray no longer resides at [No 36], I will lose the will to live. d. I may need to go into care, which is the absolute last thing I want. … 43. Further to my care needs listed in paragraphs 40,41 and 42 above, details of my other needs, both present and likely include: … i. I have a moral obligation to care for Ray. Should he no longer be able to reside in [No 36], I will need to pay for his accommodation elsewhere. … … 48. I have lived next door to Ray for 16 years and as a woman living by myself, feel secure with him residing next door to me. 49. Ray [evidence not read in light of objection] lived in [No 36] rent free. I have continued this arrangement after Richard's lifetime, and Ray is now financially dependent on me. Ray and I have an agreement that he and Francine will care for me, in return for Ray, residing in [No 36] rent free.
Returning briefly to the factual history at [61], I contextualised this factual dispute by recording that the deceased recognised that Raymond found himself in a difficult position and counselled Raymond to take a short break from attending the Merrylands West TAB. Raymond's evidence is that, upon his return to the TAB in late 2004 or early 2005, he and the deceased had the conversation from which the 2005 Representations first sprung. Val did not (because she could not) give evidence of the conversation at the Merrylands West TAB from which the 2005 Representations are said to have sprung, but the evidence she did give in her 28 January 2021 affidavit is important. Val acknowledged the existence of an 'arrangement' by which Raymond (and Francine) would provide care to her in return for which Raymond could reside at No 36 rent free. She implied that this arrangement had commenced in the deceased's lifetime and that the deceased had orchestrated it. She affirmed this evidence before Raymond had sought legal advice on his claims, such that it carries a quality of independence. In this way, counsel for Luke's submission that Val did not corroborate the 2005 Representations evades the implication in Val's evidence that the arrangement arising from the 2005 Representations was extant in 2021 and had been extant since before the deceased's death.
It is now convenient to turn to the chronological evidence provided by all the witnesses in respect of the 2005 Representations. Foreshadowing the conversation at the Merrylands West TAB in late 2004 or early 2005, Francine gave evidence in her affidavit of 13 August 2021 at pars 8-10 that she had received a phone call from the real estate agent of her and Raymond's apartment in Sherwood Road and this led her to seek out Raymond to check on him. Francine relayed the following at par 10: 10 After work, I went over to see Raymond at the apartment and rang the doorbell but he didn't answer. I then went to the TAB, Raymond was not there either. I saw Rick there and asked: [Francine]: "Hey Rick, I'm looking for Raymond have you seen him today? I'm kinda worried" [Deceased]: "he hasn't been around for a few days" [Francine]: "oh my God, where could he be now? I'm really worried" [Deceased]: "Nah, I told him to cut the punting, it's okay he told me everything, don't worry I'm gonna look after Cabbie" [Francine]: "Really I'm surprised he told you but I'm glad he was able to talk to someone, thanks Rick, he's lucky to have a friend like you".
Raymond relayed the conversation giving rise to the 2005 Representations in his 10 July 2021 affidavit at par 19: 19. After 3 days I returned to the TAB and saw [the deceased]. He appeared excited to see me and asked [Deceased]: "Cabbie, how much rent you paying?" [Raymond]: "$380 a week, why?" [Deceased]: "You know what I've been thinking, I've got a house next door to the old lady's, I used to have people living there but they were a lot of trouble so I don't want to rent it to anyone anymore, I've got a lot of stuff there like fridges, electrical wires and other stuff, help me clean it up, we can move the stuff into the garage, then we'll have to get the carpets cleaned and get the place fumigated and then you can move in." [Raymond]: "Really, that would be amazing but how much do you want?" [Deceased]: "I don't want any money, just pay to have the carpets cleaned and the place fumigated, pay all the bills, help pay the rates and I need you to look after the old lady whenever I'm not around." [Raymond]: "Look after the old lady, what you mean?" [Deceased]: "When I go to North Richmond to do work on the farm, or if I travel just keep an eye on the place, at night leave your outside light on so people will know someone's around, the old lady will feel safer if you do that, if my old lady needs something like a lift to the club or needs something from the shops or wants to go to the shops, whatever she needs." [Raymond]: "Are you serious?" [Deceased]: "Yeah cabbie, I want to help you out and at the same time you'll be helping me out." [Raymond]: "You don't ever need to worry about your mum or the place, I'll be there to look after everything." [Deceased]: "Cabbie stick to your promise and I'll look after you and you will stay there for good." [Raymond] hugged [the deceased]. [Deceased]: "Cabbie." [Raymond]: "Sorry Rick I'm just overwhelmed, no one has ever done anything like this for me, ever." [Deceased]: "Don't worry Cabbie, you've got a home now." [Raymond]: "Thanks Bro." [Deceased]: "Just remember if I'm not around and someone knocks at ya door always make sure to answer so then they know someone's living here and a couple of times during the night I need you to walk out and head over to the old lady's place and walk around so people see someone going there so they know someone lives there cause with all the trees and bush you can't tell anyone lives there, okay cabbie?" [Raymond]: "I understand, whatever you ask I will do, you have my word as a gentleman."
Next, Francine gave evidence in her affidavit of 13 August 2021 at par 11 that Raymond called her about moving in to No 36. They had the following conversation: 11 In early 2005 Raymond rang me: Raymond: "Hey Fran, do you think you could borrow your Dad's four wheel drive and give me a hand to move" [Francine]: "Oh my god, you did get evicted" Raymond: "nah, I gave notice" [Francine]: "but where are you going to go?" Raymond: "you know my mate Rick?" [Francine]: "Yeah" Raymond: "he's got a place and asked me if I wanted to move in" [Francine]: "that's fantastic, Rick's a good friend you better make sure you don't stuff that up and get behind in your rent" Raymond: "he doesn't want any rent" [Francine]: "what, are you sure?" Raymond: "yep, we have an agreement" [Francine]: "really and what's that?" Raymond: "I look after his mum if he's not around and I pay all the bills" [Francine]: "that's awesome."
Francine said that she did help Raymond move in to No 36, and recounted the following conversation with the deceased on the day she helped Raymond move, in her affidavit of 13 August 2021 at par 13: 13 Raymond started unloading the four-wheel drive, I saw [the deceased] come out from 36 he walked over to me, winked and said: [Deceased]: "I told you I'd look after him" [Francine]: "yes you did" [Deceased]: "welcome to Cabbie's home" [Francine]: "thanks for looking out for him" [Deceased]: "he'll be right" Raymond came out to get more stuff from the car. [Deceased]: "come on Cabbie hurry up we're missing out on thousands"
Raymond gave the following evidence on the 2005 Representations in cross-examination: 1. Raymond said that he never asked to be made a tenant of No 36, and nor did he ask the deceased to create a document setting out the terms and conditions on which Raymond occupied No 36. Raymond explained that this was because the deceased explained that Raymond could stay there for good. 2. Raymond accepted the suggestion that the deceased could have turned around and told Raymond to leave No 36 and that Raymond would have left near the start of his time at No 36, but not, say, 10 or 15 years later in light of what Raymond considered to be the promise the deceased had made to him. 3. Raymond accepted that the arrangement was very advantageous to Raymond insofar as Raymond was not paying as much rent as in his previous unit and Raymond could work full-time. 4. To the suggestion that the 2005 Representations, taken with the assistance Raymond was providing to Val, did not instil in Raymond the expectation that he could simply live there for the rest of his life, Raymond said that he did have that expectation.
Luigi Pennetta said that, on a visit to Val in or around 2005, the deceased introduced Mr Pennetta to Raymond who was now living at No 36. The deceased told Mr Pennetta: "Ray's my friend he works as a taxi driver and he helps me a lot looking after mum in the daytime when I am at work so I can go out and do my jobs."
Raymond said that, for a period of 8 weeks in 2009 when the deceased went on an overseas holiday, he assisted Val by driving her to and from medical appointments, mowing the lawns at No 34 and No 36, and handling the rubbish and the mail for Val.
Raymond said that, in 2014 or 2015, he helped the deceased to replace clay pipes in No 36 and this project took about four days. The replacement pipes cost $200 or $300, and Raymond paid about $500 for a plumber to unblock the old pipes on two occasions prior to the replacement.
I have set out other relevant facts in the factual history relayed above, including that Raymond assisted the deceased to acquire a taxi licence in 2009; that the deceased cared for Raymond for a period of 6 to 7 months in 2010 while Raymond grappled with anxiety and depression over his daughter's medical condition; and the consistent assistance Raymond provided to Val by way of grocery shopping and transportation for Val.
As I have foreshadowed, the significance of the evidence set out in this section is coloured by evidence of events occurring later in time. It is appropriate that I determine the relevant findings of facts in respect of the 2005 Representations in the section below in which I consider the equitable estoppel claim as a whole. It is convenient to turn to the evidence regarding the 2016 Representations next.

[12]

Content of the 2016 Representations

The alleged conversation in March or April 2016 giving rise to the 2016 Representations was set out in Raymond's affidavit of 10 July 2021 at par 57: 50. In March or April 2017, [the deceased] and I had lunch together in the lounge room of No 36. … We had the following conversation: [Deceased]: "Cabbie, when the old lady's gone I'm gonna sell her place and move to North Richmond and finish off the house that I started building and I'm gonna give you 36, is that alright?" [Raymond]: "What, you serious?" [Deceased]: "Yeah, you've been there for me like I've been there for you, you've looked after the old lady and took care of the place like you said you would." [Raymond]: "Cab that would be amazing, you are not only looking after me but you are also helping me look after my daughter because one day I can leave it to her." [Deceased]: "Okay then, done." [Raymond] cried and hugged [the deceased]. [Raymond]: "Thank you my brother." [Deceased]: "Come on let's get out of here I gotta get to the first race cause Penza has a good ride in the first, could be thousands there for us."
Raymond gave evidence that, on the day of this conversation, the deceased complained to Raymond of headaches. Raymond, thinking of his daughter, suggested to the deceased make a will. The deceased responded to this suggestion by saying: "I told you once the old lady's gone I'm gonna sell her place and give you the house and I'm out of here that's it, there you know my Will."
In cross-examination, Raymond said that he did not expect to receive No 36 by way of a will because he understood that the deceased did not believe in making a will. Raymond said that he expected that, had the deceased made a will, the deceased would have left No 36 to him that way, but as the deceased did not have a will, Raymond understood that, if Val predeceased the deceased, the deceased would gift No 36 to Raymond while the deceased was still alive by signing the title over to Raymond.
Now is a convenient moment to interpose certain evidence of Luigi Pennetta bearing on the deceased's attitude towards his testamentary dispositions. Mr Pennetta recalled a conversation with the deceased at No 34, the timing of which he could not specify, to the following effect: [Mr Pennetta]: "What's the matter Ricky?" [Deceased]: "Wills are shit! They are a piece of paper worth nothing." [Mr Pennetta]: "Why what do you mean?" [Deceased]: "After all the years of helping my uncle I got nothing and lost out." [Deceased]: "Who looks after my Mum will get the lot." [Mr Pennetta]: "Good on ya, I'm in the same boat I have no kids who looks after me and Maria (my wife) can have the lot too."
Next, Luigi Pennetta said that he and the deceased had a conversation after a few years of Raymond living at No 36 in which the deceased told Mr Pennetta: "I am happy with Ray he looks after Mum he can have 36 when Mum goes for all he has done for me and my Mum."
Finally, Luigi Pennetta said that he made contact with Raymond at No 36 when he learnt, on 7 November 2021, of Val's death. Mr Pennetta said to Raymond: "Yes, [the deceased] told me about his promise he said to me who looks after Mum gets the lot." Raymond replied: "I know [the deceased] was a man of his word."
Returning to the conversations on the day of the 2016 Representations, as I have already set out, Raymond gave evidence that, the day after these conversations, the deceased stopped using his set of keys to enter No 36 and the deceased began knocking at the door and would wait for Raymond to invite him in on the basis that the deceased now considered No 36 to be Raymond's place.
In her 19 August 2021 affidavit, Val gave evidence of a conversation occurring "a few years before [her] son's death" between herself and the deceased at No 34. She said that the deceased left in the early afternoon to go see Raymond at No 36. Around 6:30pm that evening, being Val and the deceased's usual dinner time, Val noticed the deceased had not returned. Val walked out to the boundary of No 34 and No 36 and called out to the deceased to return for dinner. She said the deceased walked out of No 36 and replied that he was still talking to Raymond. Val called out again about an hour later and the deceased returned to No 34. There they had the following conversation: [Val]: "All that talking while your dinner is getting cold. Eat your meal, then go to talk." [Deceased]: "Yes, all that talking was about you." [Val]: "Me? What for?" [Deceased]: "Cabbie [a nickname attributed to Raymond], and I have reached an agreement." [Val]: "Oh, really? What about?" [Deceased]: "Cabbie's going to look after you when I am not around. Then, one day when you're not around I'm going to sell your house, move to the farm, and going to give [No 36] to Cabbie." [Val]: "Why anyone would want to live up at North Richmond, I'll never know." [Deceased]: "I want to finish building the house up there." [Val]: "Well, before you go giving anyone a house, make sure you think hard about it." [Deceased]: "Yes, I have. I have given Cabbie my word." [Val]: "Right, OK then. Well come and eat your dinner."
Raymond and Francine gave evidence that Jazmina moved to Los Angeles in 2016 for work, and that Jazmina asked her parents to accompany her to help her establish herself in her new city. Raymond gave evidence that he declined Jazmina's request because he wanted to honour his promise to the deceased that he would look after Val. Francine's evidence on this episode was more expansive. She deposed to a conversation she had with Raymond about his declining to help Jazmina resettle in Los Angeles: [Francine]: "I can't believe you're not going to come and help your daughter" [Raymond]: "You know I can't" [Francine]: "I don't get it. Don't you want to look after your daughter?" [Raymond]: "Keeping my word I'm looking after everybody" [Francine]: "nope still don't get it, how is that looking after your daughter?" [Raymond]: "I promised Rick I'd look after Val and him" [Francine]: "yeah I know, and you have but seriously" [Raymond]: "Well because I've kept my promise, Rick told me when Val goes he's gonna sell her place at 34 and move to North Richmond and he's gonna give me 36!" [Francine]: "what?" [Raymond]: "yeah so see one day when I'm gone, I can leave it for Jazmina" [Francine]: "I can't believe it, you know the first time I met Rick you said that he was the nicest bloke I'll ever meet, shit you weren't wrong" [Raymond]: "I told you"
In early 2017, after returning from Los Angeles, Francine visited Raymond at No 36 where Raymond and the deceased were having lunch. While Raymond was in the kitchen, Francine and the deceased had the following conversation: [Deceased]: "did you settle ya girl in?" [Francine]: "yes but it was so hard to leave her" [Francine]: "Listen Rick, Raymond told me about you giving him this place when your mum's gone" [The deceased], nodded and winked at me. [Deceased]: "I told you not to worry, I would look after him" [Francine]: "yes you did and my God how you have. Thank you"
Francine was asked in cross-examination about this conversation with the deceased in early 2017. Francine accepted that there was no specific mention of No 36 but said that she presumed that the deceased knew what she was saying, and she knew what he was saying.
I interpose here to note Raymond's concession that he did make some overseas trips in recent years. Between 2013 and 2015, Raymond says he travelled to Thailand 3 or 4 times per year, and once per year between 2016 and 2017, staying 2 or 3 weeks at a time. 2017 was the last time Raymond travelled until he visited Jazmina in Los Angeles in 2020. The deceased prompted Raymond to travel on the occasion in 2017 over Raymond's protests that he wanted to stay and help care for Val. On his 2020 trip, Raymond spoke to Francine on the phone every day to check on Val, and I infer that Raymond felt able to leave Val given that Francine could assist Val while he was away.
2017 was the year that Jack Chemuel moved into No 36, and I have recorded much of his evidence above. Jack also gave evidence that, whenever the deceased went to North Richmond, Jack would observe Raymond checking in on Val next door. Jack also saw Raymond running regular errands for Val and transporting her. The proximity of Merrylands West TAB and the local IGA gave Jack the opportunity to see Raymond often assist Val with her grocery shopping, at least twice a week. Jack said in cross-examination that he understood, from Raymond telling him, that when Val passed away, the deceased would move to North Richmond and No 36 would be Raymond's.
Kevin Janson gave evidence that his carers would take him past No 34 and No 36 about once a fortnight, usually on a Thursday, while Val was alive. He said that, on one occasion in mid-2017, one of his carers knocked on the door of No 36 and was greeted by "a gentleman". The gentleman told the carer that the deceased was "either at the property, at the TAB, or at your mother's." Kevin went to No 34 and met the deceased. Kevin saw a taxi in the driveway and asked about it. The deceased replied: "Oh don't worry about that. Don't worry about him. We have an arrangement."
On another occasion around late 2018 or early 2019, Kevin Janson went to No 34 to see Val. He said that he and the deceased had the following conversation: [Kevin]: "By the way are you getting the carers allowance for looking after my mother?" [Deceased]: "That is only small change. That is only pocket money." [Kevin]: "You are getting the carers allowance for my mother, but you are never here." [Deceased]: "That is only small change. That is only pocket money. When I am not here, she can go there. I have an arrangement."
Kevin understood "there" to be a reference to No 36.
Raymond gave evidence that, about a month after the deceased died in April 2019, Val said to Raymond: "I know [the deceased] said that the place was going to be yours. He's not here. But he used to tell me that the place would be cabbies [sic], and I'm going to give it to you in my Will." In her affidavit of 19 August 2021, Val gave evidence that, in September 2019, she instructed her solicitor to prepare a will (Val's 2019 Will) for her which provided for Raymond. Val said that, as it was the deceased's intention to gift No 36 to Raymond, Val gifted part of her estate to Raymond. She executed the will on 14 October 2019. Val then said at par 11 of that affidavit: 11. I feel Raymond has upheld his part of the Agreement, as he has taken care of me and [No 34], both during [the deceased's] lifetime and since his date of death.
In cross-examination, Raymond accepted that there was never any discussion as to what might happen in the event that the deceased died before his mother. Raymond said that this never crossed his mind because the deceased expected Val to predecease him.

[13]

Raymond's support of Val and work on No 36

Raymond gave evidence that, from the period after 2016, he undertook the following improvements and repairs on No 36: 1. In 2016 he paid $350 for replacement of broken windows in the granny flat and side bedroom. 2. In 2016 he paid $90 for a new showerhead and new bathroom sink fittings and spent 3 or 4 hours installing these. 3. In 2017 he paid $400 for paint and spent 16 hours helping to paint the loungeroom and bathroom. 4. In 2017 he removed the carpets in the third bedroom and paid $1,200 to restain and polish the floorboards, which took one day to complete. 5. In 2017 he paid $750 for a new screen door which the deceased installed. 6. In 2018 he paid $110 for new curtains in the front two rooms and spent 3 hours installing these. 7. In 2018 he paid $350 for a used air conditioner for the loungeroom, the front room and the dining room and spent 4 hours installing this with a friend. 8. In 2019 he paid $1,800 to remove trees from the backyard of No 34 and No 36. 9. In 2020 he paid $150 for new kitchen sink fittings and spent 3 or 4 hours installing these. 10. In 2020 he paid $625 for rubbish to be removed from the side of the house. 11. In 2020 he paid about $360 for replacement of the toilet in the bathroom.
Jack Chemuel said that he observed Raymond arrange for pest control in April 2017 and purchase flea bombs and outdoor pest spray every two weeks; that, at some time in 2018, he saw Raymond arrange and pay workmen to clear shrubs on the property; and that, in early 2019, Raymond arranged for rubbish removal and the disposal of at least 10 to 12 ovens and fridges which had been stored at the house.
Francine observed that Raymond painted the house at a cost of $400, and ripped out the carpet and had the floors polished and restained at a cost of $1,200, in 2017 while Francine was in the United States with Jazmina; that Raymond bought new curtains at a cost of $110 in mid-2018; that Raymond arranged for the cutting down of trees at No 34 at a cost of $1,800 in early May 2019; that Raymond paid to have some rubbish at the side of the house be removed at a cost of $625 in early 2020; and that Raymond arranged for a plumber to make repairs at No 36 at a cost of $510 in mid-2020.
Luigi Pennetta said that he observed Raymond often helped Val to clean up around the yard and the garden so there was a clear path where she could walk.
Raymond said that, in 2016, Francine started helping Val 2 or 3 days per week. I record here that, in her affidavits, Francine described her occupation as a carer. In cross-examination, Francine said that she would attend No 36 between 2 and 3 times per month in the period between Jazmina moving to Los Angeles and the deceased's death. As is noted below, this would increase after the deceased's death.
Raymond said that he assisted Val in the following ways from 2016 onwards: 1. On days that the deceased was at work or at North Richmond, Raymond brought a newspaper to Val at No 34. Raymond would check what Val needed from the shops and would go shop for her. He would put on bets for Val at the TAB of a weekend and collect fish and chips for her. 2. Raymond took Val to Merrylands RSL Club twice per week to play bingo and would pick her up or arrange a taxi for her. 3. Raymond would pick up meat at the butcher for Val to feed her many cats. Raymond said Val had 40 cats in 2016. Raymond would feed the cats twice per day. Raymond would water Val's plants every day. 4. Raymond continued to walk over to No 34 in the evenings and check on Val through the window.
Raymond said that, when he returned from a trip to Thailand in 2017, he began sleeping on the lounge near the window so that he could hear if there were any problems for Val during the night.
When Luigi Pennetta found out about the deceased's death in April 2019, Mr Pennetta visited Val to offer his condolences. He said that Val said to him: "Thanks to Ray I can stay in my home I never want to go to a nursing home."
Raymond and Francine's care of Val continued after the deceased's death in 2019. Raymond said that Francine helped Val almost every day after the deceased's death. Together, he said, they assisted Val in the following ways after the deceased's death: 1. Every morning Raymond would check in on Val at No 34, bring her a newspaper, and make Val breakfast. 2. Raymond and Francine arranged meals for Val and assisted her with going to the bathroom. 3. Raymond would feed Val's cats twice per day and maintained the lawns at No 34 and No 36. 4. Francine would shower Val at No 36. Raymond and Francine arranged for a nurse to attend No 36 twice per week to treat Val's breast cancer wounds. 5. Raymond continued to leave the outside light on all night. 6. At the beginning of 2021, Raymond and Francine organised a personal alarm for Val and Raymond was "on call" at all hours of the day. Raymond would be called to assist Val with going to the bathroom. Francine would sometimes stay at No 36 to give Raymond a break at night.
Assumedly referring to the period after the deceased's death, Francine gave the following evidence about the care and assistance to Val that she and Raymond provided: Francine would use the bathroom at No 36 to shower Val; Francine would prepare some of Val's meals except for when Raymond would arrange to order and collect Val's weekly fish and chips and her favourite Chinese meals twice per week to continue the tradition and routine started by the deceased; a nurse would attend twice per week to dress Val's breast cancer wound and Francine would change Val's dressing every other day; Raymond would wash Val's clothes in the laundry at No 36; Francine would stay overnight at No 36 about once per week to give Raymond a break, so he could get a good night's sleep, in which she would attend to Val's overnight needs which included taking Val to the bathroom; and Raymond continued to maintain the lawns at No 34 and No 36.
I have already recorded above Val's evidence in her 28 January 2021 affidavit as to the care that Raymond and Francine rendered to her. I record here that Val gave evidence in that affidavit, again in the context of her family provision claim, that she would not want to find an alternative carer to Francine because Val was a private person and would not feel comfortable with a new carer attending to personal tasks such as showering to which Francine normally attended.
Raymond gave evidence of a striking event occurring on 6 August 2021. He said that, on the morning of that date, he was leaving No 36 to go grocery shopping when he saw two police officers approaching No 34. Raymond saw Francine walk up and speak with them. Raymond then saw the officers enter No 34. Later that day, the officers called an ambulance to take Val away for medical assessment. Val pleaded for Raymond's help as she refused paramedics' attempts to seat her in a wheelchair. Val said: "Ray you promised [the deceased] you'd look after me, why aren't you doing anything to stop them?" Val was taken to Fairfield Hospital where she remained for a few hours. A doctor called Francine later that evening to ask her and Raymond to collect Val who was distressed and calling out for them.
Raymond observed that Val appeared distressed and worried about being removed from her home after this incident. After 6 August 2021, Raymond said, he would receive notification between 8 and 10 times per day on his telephone that Val had used her personal alarm and he would often stay with Val until she fell asleep then return home and sleep on the lounge at the front of No 36 waiting for the alarm to sound, which would usually occur about 4 to 5 times per night.
In cross-examination, Raymond accepted that the work he carried out on No 36 directly advantaged him because it improved the comfort of the property, and he accepted that the value of the improvements done was not high, but he sought to impress on the Court that [T 55.31-55.33]: "it's not about the money, sir. It was about taking care of his mother to her last breath and to lay her to rest."
Also in cross-examination, to the suggestion that it was Raymond's understanding that the deceased could change his mind, Raymond replied that he would have sought legal advice if the deceased had acted in a way inconsistent with the arrangement.
As with the evidence in respect of the 2005 Representations, I will reserve recording my factual findings on the 2016 Representations so as to best explore all the evidence in a wholistic way.

[14]

Factual dispute - was Raymond a lessee at No 36?

I have foreshadowed above that there is a factual issue as to whether Raymond was merely a lessee at No 36. The evidence does not satisfy me that Raymond was ever a lessee at No 36. The principal reason is that, as I record below, all the evidence has satisfied me that the arrangement between Raymond and the deceased was on the terms of the 2005 Representations and the 2016 Representations, and those terms did not include Raymond renting No 36 from the deceased.
Furthermore, I have found above that, in the period between the 2005 Representations and the 2016 Representations, the deceased used No 36 as a residence and that he did in fact come and go from No 36 as it pleased him. That finding is inconsistent with a finding that Raymond was a lessee during that period as Raymond did not in fact enjoy exclusive possession of No 36. Though I have found that Raymond in fact enjoyed exclusive possession of No 36 after the 2016 Representations, there is no evidence to suggest that the arrangement between the deceased and Raymond took on a condition by which Raymond would pay rent to the deceased.
Against the fact of the arrangement as I have found it is the evidence of Dianne Campbell and Raymond Esber, the substance of which Raymond Daniel and Val denied in their evidence.
Raymond Esber stated in his affidavit of 16 September 2021 that: "[The deceased] would always refer to the person living at [No 36] as "the tenant"." Mr Esber gave evidence of a conversation at his home between himself and the deceased occurring in 2008 or 2009 in which the deceased said to him: "I am angry because my tenant at [No 36] is not paying their rent."
Mr Esber also gave evidence of another conversation occurring about two or three months before the deceased's death when the deceased came to Mr Esber's home for Mr Esber to assist the deceased with issues that the deceased was having with an iPhone that he had purchased for the deceased. Mr Esber said: … During our conversation he said "My tenant owes me thousands". I asked him "What do you mean thousands?" [The deceased] replied "Thousands". I kept on asking [the deceased] "How much?" [The deceased] kept replying "Thousands." Finally he said in anger "About nine years' worth".
Dianne Campbell gave evidence of a conversation with the deceased she said occurred in around 2018 at her home on an occasion when the deceased was staying at the North Richmond Property: [Dianne]: "How are things going?" [Deceased]: "Headache." [Dianne]: "A physical headache?" [Deceased]: "No, problems." [Dianne]: "What problems?" [Deceased]: "Problems with the tenant." [Dianne]: "Is it the tenant next to your Mum?" [Deceased]: [nodded and said:] "Yes." [Dianne]: "I know the feeling. I have had so many people not pay for their horses. Is that what it is, not paying the rent?" [Deceased]: [nodded and said:] "Yes." [The deceased] did not elaborate further.
In his affidavit in reply of 21 October 2021, Raymond said that the deceased never referred to him as his tenant, that the deceased never asked him to sign a lease to stay at No 36, and that the deceased never asked him to pay rent.
In her affidavit in reply of 22 October 2021, Val gave evidence that she had never heard the deceased refer to Raymond as "the tenant", and that the deceased had never told Val that Raymond owed him money or was paying rent.
Luigi Pennetta recalled that, when he sold No 36 to the deceased, the deceased rented No 36 out to tenants, but that the deceased later told him that they caused him a lot of damage and never wanted to rent the property out again. I have noted this evidence above. Mr Pennetta put this conversation as having occurred "shortly after [Mr Pennetta] sold the property to [the deceased] in 1985".
I have ultimately not preferred the evidence of Dianne Campbell and Raymond Esber in respect of this issue. It is appropriate at this juncture to elaborate on why I am satisfied that Dianne and Mr Esber were not adequately involved in life at No 34 and No 36 during the time that Raymond Daniel lived at No 36 for the Court to accept their evidence on this issue.

[15]

Evidence of Raymond Esber

Raymond Esber said that he met the deceased in 1974 and that he and the deceased were the best of friends right up until his death in 2019. Mr Esber spent many years working with the deceased when Mr Esber had a band and the deceased worked for Mr Esber doing lighting at concerts and events. Mr Esber said that the deceased knew all of Mr Esber's friends and relatives and that they all socialised together; that the deceased saw every band Mr Esber played with; and that the deceased would call Mr Esber at least once per fortnight to have a chat. The evidence of both sides of this dispute is agreed on the fact that Mr Esber bought the deceased a mobile telephone, which I consider to be a matter implying a certain level of friendship. The deceased and Mr Esber at least visited each other's homes on occasion.
Raymond Esber asserted that at no time during his friendship with the deceased did the deceased ever mention to Mr Esber the name "Raymond Daniel". Raymond Daniel said that he saw and met Mr Esber once in the latter half of 2018 when Raymond was returning from a taxi shift and Mr Esber was standing with the deceased outside of No 34 or No 36. The deceased and Mr Esber were concluding a conversation and the deceased introduced Raymond to Mr Esber, who left soon after. Raymond says that he and the deceased had a conversation shortly after this, to the following effect: [Deceased]: "thank God you arrived, I couldn't get rid of him!" [Raymond]: "who is he?" [Deceased]: "ahhhh just a bloke I used to work with, he does my head in Cabbie." [Raymond]: "nah, he looked alright Cab" [Deceased]: "he doesn't shut up, made me miss out on thousands"
In cross-examination, to the suggestion that he met Raymond Daniel in mid- to late 2018, Mr Esber said [T 137.6]: "Never, ever."
Raymond said that he never saw Mr Esber again and never heard his name mentioned until after the deceased's death. Raymond said that Mr Esber came to No 34 to see Val on 18 May 2019, after the deceased's death. On this occasion, Mr Esber asked Val if he could have the phone that he had set up for the deceased, and Val agreed. Raymond, Francine and Val all gave evidence that the way they first contacted Dianne Campbell was by coming across her phone number, on that date, in the contact list contained on the deceased's mobile phone. Val went so far as to say that it was Mr Esber who unlocked the phone to access the contact list, and that she gave the phone to Mr Esber in the end when he asked for it to be returned to him. The basis of this evidence of Raymond, Francine and Val - that Mr Esber and Raymond and Francine and Val must have been present together at No 34 on 18 May 2019 - was not put to Mr Esber in cross-examination, but it was a proposition that must have been clear to Luke's counsel from Raymond's witnesses' affidavits. In cross-examination, Dianne Campbell said that it was Raymond Esber who called her in May 2019, who then put Francine on the phone to speak to her. I am satisfied that this meeting occurred.
In any case, I am satisfied that Raymond Daniel and Raymond Esber were not well acquainted and that the deceased did not talk about one to the other, at least by name. It is against that backdrop that the inference that Luke's case attempts to draw from Mr Esber's evidence - that Raymond Daniel is the tenant to whom Mr Esber says the deceased was referring during their conversations - loses its lustre. In circumstances where Mr Esber says he did not know Raymond Daniel, even if I accept Mr Esber's evidence as to the content of conversations he says occurred between himself and the deceased, I am not satisfied that those conversations sufficiently prove that the deceased was referring to Raymond Daniel. Furthermore, Mr Esber's evidence that the deceased, in late 2018 or early 2019, complained of 9 years' worth of unpaid rent, does not sit comfortably with the fact that Raymond Daniel had lived at No 36 since 2005.
The rigidly oppositional quality of Raymond Esber's evidence was ultimately softened by matters raised in his cross-examination: 1. To the suggestion that Mr Esber did not visit the deceased at No 34 for many years prior to his death, Mr Esber said [T 137.16ff]: I would meet him, but not every week or every day. I would meet him now and then, yes, but not for many years I did not, no. I would meet him now and then, and I was always asked to see him outside. He would not invite me inside the house. I think he was embarrassed. The house was in such a mess, so I'd always give him a call on his landline, or beeped him, and he'd come out and talk to me outside. 1. When asked about the timing of his last visit to No 34, Mr Esber said [T 137.25ff]: I didn't visit him much towards the end because I was caring for my mother and my mother passed away in 18, 2018. So, then he was driving a taxi, he told me, for the guy next door. So, I didn't visit [the deceased] all that much while I was caring for my mother. He would call me every couple of weeks just to keep in touch with me and find out what was going on, how I was keeping, how I was doing, you know, looking after my mother. 1. To the suggestion that it would be unusual for the deceased to allow the rent of a tenant to accrue for 9 years, Mr Esber said [T 138.41ff]: [The deceased] had a habit of doing things like that because he had a property at St Mary's, he didn't have a lease, and the tenant there, he was of Asian, Tongan or something and he didn't pay the rent. So, when I asked [the deceased], I said "Did you have a lease?" He said, "No, no". I think he didn't want to pay the fees. That's basically what it was. 1. And to the suggestion that he did not really know the nature of the relationship between the deceased and Raymond Daniel, Mr Esber said [T 138.49ff]: Well, Richard would have told me but as far as I know he was a tenant and they - and then Richard drove a taxi for him and he got a taxi licence. I think it was about 2015. I don't know how close, like, they would have been because as far as I know, Richard was just driving the taxi because it's something else to do in life.
The first two of these answers stand as sensible concessions of the limits of Mr Esber's interactions with the deceased, at least in the later years of the deceased's life. The reference in the third answer to a property at St Mary's [T 138.41-2] is elusive. In evidence is a receipt, dated 1 September 2014, issued to the deceased in respect of a donation he made in relation to a child sponsorship organisation. This receipt lists the deceased's address as a PO box in St Mary's. That appears to be the only other reference in the whole of the evidence to the suburb of St Mary's. If the deceased did in fact own an investment property at St Mary's, it may be that difficulties he had with a tenant there would have possibly explained away Mr Esber's (and Dianne's Campbell's) belief that Raymond Daniel was the tenant to whom the deceased allegedly referred, but the Court cannot soundly proceed on that speculation.
As to the fourth of the answers set out above, it is difficult to accept that Raymond Esber could say, on the one hand, that the deceased told him that the deceased "drove a taxi for [Raymond Daniel] and [the deceased] got a taxi licence" and, on the other, that the deceased had never mentioned Raymond Daniel's name to Mr Esber. In circumstances where I have found that Mr Esber spoke to Val and Raymond Daniel and Francine on 18 May 2019, Mr Esber's response to whether he did not really know the nature of the relationship between the deceased and Raymond Daniel lacks any contextualisation by reference to what he would have discovered at that meeting.
Given these evidentiary equivocations, I cannot accept Mr Esber's evidence that the deceased told him that he was having troubles with a tenant at No 36, and, even if I did, I would not draw the inference that the deceased was referring to Raymond Daniel. Rather I am satisfied that Mr Esber's relationship with the deceased was not so close as to place Mr Esber in a position in which Mr Esber could know the true nature of the relationship between the deceased and Raymond Daniel.

[16]

Evidence of Dianne Campbell

As for Dianne Campbell, I am satisfied that Dianne was also not in a sufficient position to properly understand, with the appropriate context, the nature of the arrangement between the deceased and Raymond. Dianne's place in these proceedings is as a neighbour of the deceased's North Richmond Property. Dianne moved into her property across the road from the North Richmond Property in 1992, when the deceased's father was living in that property. Robert Janson introduced Dianne to the deceased shortly after she met Robert in 1992. Dianne said she started making and delivering dinners to Robert from about 2009.
Val gave evidence that the first time she met Dianne was at Robert's funeral in September 2014, but that Val and Dianne did not speak. Before this time, the only contact Val had had with Dianne was when she called No 34 to report that she saw someone on the North Richmond Property and had called the Police. In cross-examination, Dianne confirmed that the first time she saw Val was at Robert's funeral, but said that she had spoken to Val many times previously over the phone.
Raymond said that the deceased spoke of Dianne to him and referred to her as "the lady across the road" until about 2016 when he started to refer to her as "Di". Raymond said that in or around 2018 the deceased told him that Dianne was having major issues with the wiring in her house and that he would be going to her house to help her with the issues. Val said that at some time between 2018 and 2019 the deceased mentioned that he had done some work at Dianne's place but that the deceased did not mention her otherwise.
I have found that Val, Raymond and Francine were able to access the deceased's mobile phone on 18 May 2019 during a meeting with Mr Esber, and that in doing so they acquired Dianne's phone number. Val said it was her suggestion that they call Dianne. Dianne cried when they told her of the deceased's death. Francine organised the visit to Dianne's house.
At Dianne's home in North Richmond, Raymond says he mentioned the deceased's brother Kevin in conversation and Dianne said that she did not know that the deceased had a brother. Francine also deposed to this conversation. Kevin's evidence was that Dianne came to visit him after the deceased's death and that he had never met her before, but that the deceased had mentioned her once to complain about how much time he spent rewiring her house. In cross-examination, Dianne rejected the suggestion that she did not know Kevin existed when the deceased was alive, saying that the deceased and his father had mentioned him to her before.
Francine and Raymond gave evidence that Dianne handed Francine an envelope as they were leaving Dianne's house. Francine said that Dianne told her: "you're doing an amazing job with Mrs Janson it's just a little thank you card but don't open it until you get home […] and please don't tell Mrs Janson". When they arrived back at No 34, Francine opened the envelope and found $500 enclosed with a card which read: "Please use this for anything Val or you need, thank you for looking after Mrs Janson and please let me know if there is anything I can do to help … Dianne". There is evidence of a text message conversation between Francine and Dianne in which Francine thanked Dianne for the money.
Raymond and Francine gave evidence that, in the car ride back to No 34, Val told them that Val had never spoken to Dianne before that day, and that this was only the second time Val had seen Dianne, the first being at Robert's funeral.
Dianne recounted an event occurring on around midday on 25 May 2019, several weeks after the deceased's passing. Dianne went to No 34 to see Val and offer help. She went to the front door and knocked but there was no answer, so she walked around to the back of the house, yelled out Val's name, and knocked on the back door and received no answer. Dianne turned the door handle and she looked inside to find the walls covered in dirt, the floor strewn with clothing, and the place smelling terribly. Dianne then said that Val approached from the side of the backyard and Dianne offered to help Val tidy up, but Val declined the offer. Val did not want Dianne to enter No 34. They had a brief conversation then Dianne left. In her affidavit of 22 October 2021, Val confirmed that this event occurred, as did Dianne in cross-examination. For her part, Dianne said in cross-examination that she accepted that Francine was assisting Val, but Dianne raised concerns to Val about Francine, believing that Francine just wanted to take Val's money, to which Val did not respond. To the best of Raymond's knowledge, Dianne had never been to No 34 or No 36 before this event.
Francine and Val both recounted a conversation between them in which Val complained about Dianne attending on No 34. Francine offered to call Dianne on Val's behalf to let Dianne know that Val did not need Dianne to come back to No 34. Francine then recounted a phone conversation between her and Dianne in which Dianne expressed her dismay at the state of No 34 and in which Francine explained that she and Raymond were slowly cleaning No 34 but not so fast as to upset Val who was still grieving for the deceased. There is then evidence of further text message conversation between Francine and Dianne in which they politely discussed how Francine and Raymond were going with cleaning up No 34.
The relevance of this sequence of events concerning Dianne Campbell is to demonstrate that Dianne's knowledge of life at No 34 and No 36 was inherently limited. She clearly had some interaction with the deceased and his father at North Richmond, but her only visit to the Merrylands West properties was after the deceased's death, and her interactions with Val were few. I do not consider that the deceased would have been likely to explain the nature of his arrangement with Raymond to Dianne. She was the neighbour to his father, and later to his second property, to whom he offered occasional assistance with electrical work. In that context I am prepared to discount Dianne's evidence about her recollection of the deceased complaining about his "tenant" being an apparent reference to Raymond.

[17]

Family provision claim - remaining factual matters

I have foreshadowed that I have found in favour of Raymond's equitable estoppel claim, which obviates the need for his alternative family provision claim. It is appropriate however that I set out the factual matters bearing on the family provision claim, both for the sake of judicial efficacy and to provide further context to the equitable estoppel claim.
The deceased died intestate and so left no will embodying his testamentary intentions. Val gave evidence that she and the deceased never spoke about the deceased's testamentary intentions, and that she never raised the issue with him given that she expected to predecease him.
I have recorded above Raymond's evidence that the deceased considered his "will" to be his plan to sell No 34 once Val had passed away and to give No 36 to Raymond; Val's evidence as to her motivations for benefiting Raymond in her will on account of her understanding of the deceased's intention to gift No 36 to Raymond; and Luigi Pennetta's evidence to the effect that the deceased held a negative attitude towards wills, and that the deceased wanted to reward Raymond with No 36 for looking after Val. This evidence is not properly characterised as "evidence of the testamentary intentions of the deceased person" (Succession Act, s 60(2)(j)) because it tends to support a conclusion that the deceased intended to make a gift of No 36 to Raymond while the deceased was still alive - this being a question I will consider below in greater detail in the context of the equitable estoppel claim. For the purposes of the family provision claim, I consider this evidence relevant nonetheless to the moral duty of the deceased to make provision for Raymond: Succession Act, s 60(2)(p).
Raymond was aged 57 years at the date of the hearing. He has little over $100 in a bank account and a debt of $25,000 owing to Francine's parents. Raymond's monthly expenditure exceeds his net income by about $300 per month. Included in his monthly expenditure is $400 as the occupation fee of No 36 pursuant to the order made earlier in these proceedings and all the outgoings of No 36. Raymond has an adult daughter, but the evidence does not reveal what level of financial contribution, if any, he makes to her welfare. Raymond and Francine remain married but are separated and they do not share finances nor have any joint assets. Francine lives with her parents.
Raymond has suffered from back pain for about 15 years, and depression and anxiety for many years, such that he has difficulty sleeping and rarely leaves the house. His general practitioner stated in a patient summary dated 13 July 2022 that Raymond has, among other conditions: depression, lumbar spondylosis, and type 2 diabetes. The general practitioner noted that Raymond cannot sleep or work due to the emotional stress of the deceased and Val, and that he takes a series of medications. Raymond is currently unemployed.
If Raymond were unable to continue residing in No 36, he would have a need for accommodation and would be seeking a 1- or 2-bedroom home unit. Raymond provided evidence of prices of such units in the Merrylands area, which ranged from $480,000 to $570,000. Luke tendered advertisements of such units with prices ranging from $395,000 to $780,000.
Raymond is entitled to a 30 percent share in Val's estate which has not yet been administered. The only evidence in these proceedings as to the value of Val's estate is the inventory of property annexed to the grant of probate of Val's will to Francine on 28 April 2022. The inventory values Val's estate at $932,381.52. Raymond has estimated his share to be valued at between $150,000 and $200,000, subject to any family provision claim by Kevin Janson. Raymond's estimate is sensible, given his understanding of a prospective claim made by the NSW Trustee and Guardian on behalf of Kevin Janson; claims by Luke against Val, and the unknown taxation liabilities and costs orders in these proceedings and the related proceedings.
Luke is the only competing beneficiary of the deceased's estate. He was aged 45 years at the date of the hearing. Luke valued his assets at $51,318.75 and his liabilities at $28,591.37, placing his net worth at $22,727.38. He retains a sum in the order of $15,000 from the recent sale of a home unit in Queensland. Luke is in a relationship, and he lives together with his partner in a property that she owns. His partner has paid for most of his living expenses since October 2021 and he intends to pay her back; this loan arrangement is reflected in his personal liabilities.
He is the sole director and secretary of a company which he used to conduct a business as a private investigator, the assets and liabilities of which are $54,156.19 and $70,451 respectively. Luke has transitioned to work as a lawn mower since around April 2022 because his previous role as a private investigator was causing him anxiety. Luke suffers from vertigo and significant anxiety and depression. I accept that these conditions affect his capacity to work a full-time work week and that he in fact works approximately 15 hours per month. He no longer holds the necessary qualifications to conduct investigation work and plans to continue work as a lawn mower into the foreseeable future.
As to the nature of the respective relationships of Raymond and Luke to the deceased, it is clear from all the evidence that Raymond and the deceased shared a richly supportive friendship for about 23 years, whereas Luke and the deceased - out of no fault of Luke whatsoever - had no relationship during the deceased's life. The lack of relationship between Luke and the deceased is no reason to disregard his status as the deceased's son and as the rightful beneficiary of his intestate estate. However, it is relevant that there was no evidence that the deceased had any knowledge of Luke's birth and had therefore wilfully neglected him.
At the hearing, the parties tendered a joint schedule setting out the estimated values of the assets and liabilities of the deceased's estate, which consisted of: the North Richmond Property ($1,375,000 to $1,700,000), No 36 ($1,000,000 to $1,100,000), shares and dividends ($27,283.50); and a debt of $18,932.25 owing to Val's estate. The estimated net estate therefore ranges from $2,383,351.25 to $2,808,351.25 (this final figure assumes the line items in the schedule to be correct; the final figure stated in the schedule is apparently incorrect).
Raymond's costs were stated to be $165,000 on the ordinary basis and $182,900 on the indemnity basis. Raymond has already paid $30,000 from his own funds. Luke's costs on the indemnity basis were stated to be $103,201.72. Luke has already paid $6,774 from his own funds and no payment has been made from the deceased's estate towards costs.
The success of Raymond's equitable estoppel claim will leave Luke with the remainder of the deceased's estate, with a value in the order of $1,383,351.25 to $1,708,351.25, depending on the value of the North Richmond Property. If my conclusion as to Raymond's successful equitable estoppel claim is found to have been in error, the net distributable estate from which a family provision order could be made in Raymond's favour (taking the two parcels of real property at values in the median of their respective ranges, and subtracting Raymond's costs on the ordinary basis and Luke's costs on the indemnity basis) would be $2,247,951.25.

[19]

Encouragement by the 2005 Representations

First, as a matter of fact, I am satisfied on the balance of probabilities that the conversation between Raymond and the deceased at the Merrylands West TAB, said to have occurred in late 2004 or early 2005, set out at [110] above and named the 2005 Representations, did in fact occur in the terms deposed to by Raymond. On that basis, I am satisfied that Raymond has established, as a matter of law, that the deceased encouraged Raymond to alter his position in the expectation of obtaining a proprietary interest, that interest being an irrevocable licence to occupy premises.
Luke submitted the Court should not accept the factual matter just stated, because: (1) there was no corroboration of the 2005 Representations in Val's affidavits [T 168.50-169.2], and (2) any corroboration by Francine is limited because her evidence of conversations with Raymond is silent as to Raymond's evidence that the 2005 Representations included a reference to Raymond being allowed to "stay for good" at No 36 [T 169.4-169.17]. I reject the submission for these reasons: 1. It is not fair to say that Val's affidavit evidence did not corroborate Raymond's evidence as to the 2005 Representations. I have explained at [108] above why this is the case. 2. Though it is true that Francine's evidence of contemporaneous conversations with Raymond did not include Raymond making mention of the deceased's assurance that Raymond "will stay there for good", Francine's evidence of her conversations tends to corroborate the core elements of the arrangement struck between Raymond and the deceased in 2004 or 2005, being that Raymond would look after Val and pay bills, and the deceased would allow Raymond to reside at No 36 without paying rent. 3. It is not necessary for the Court to have direct corroboration of every word said by the deceased for the Court to nonetheless be satisfied of the substance of the deceased's representations to Raymond. There is no reason for the Court to disbelieve Raymond's evidence that the deceased said to him the words: "Cabbie stick to your promise and I'll look after you and you will stay there for good." 4. The fact that the deceased allowed Raymond to reside at No 36 for about 11 years on the basis of the arrangement struck between them is evidence that the deceased was satisfied with the arrangement being a long-term one. 5. The fact - which I have accepted, as seen below - that the deceased made the 2016 Representations in acknowledgment of Raymond having cared for Val and having looked after No 36, as Raymond had said that he would, is evidence that the deceased had intended in 2004 or 2005 that, if Raymond did as he was asked to do, Raymond would receive some proprietary interest in No 36.
At the hearing, the parties tended to couch their discussion of the 2005 Representations in terms indicating that the appropriate proprietary interest encouraged by those representations was that of a life estate in No 36. In closing [T 169.21], Luke's counsel submitted that no reasonable person in Raymond's position could apprehend that the 2005 Representations, if made, would have given rise to a right to reside in the property for life or for a life estate.
Though it is not material in this case, I am inclined to the view that the assumption objectively encouraged by the deceased's representations was that of an irrevocable licence. Evans v Evans [2010] NSWSC 170 was a decision of Brereton J (as his Honour then was) which was later reversed by the Court of Appeal in Evans v Evans [2011] NSWCA 92, but Brereton J's analysis of the applicable legal principles does not appear to have been doubted: see [2011] NSWCA 92 at [11] (Campbell JA). In his primary judgment at [39]-[41], Brereton J stated: [39] One form that this equity sometimes takes is to convert a revocable licence to occupy premises into an irrevocable or permanent one. Thus in Vinden v Vinden [1982] 1 NSWLR 618, Needham J considered circumstances in which a licence to occupy property, which was expressed to be subject to the licensee making contributions to mortgage payments and rates would become irrevocable by the licensee (in Vinden, the defendant, whom the plaintiff owner was endeavouring to eject), acting to his detriment upon the expectation that he would be permitted to remain in the property indefinitely. His Honour referred to Plimmer v Mayor of Wellington (1884) 9 App Cas 699, in which a revocable licence to occupy a jetty was held by the Privy Council to have become irrevocable by reason of the licensee incurring expenditure on improvements in the expectation, encouraged by the licensor, of being permitted to remain indefinitely. Plimmer and Vinden both illustrate that an owner of land may become bound by an equitable obligation to permit an occupier to remain permanently, if the occupier, to the knowledge of the owner, acts to his or her detriment in reliance upon an expectation of being permitted to remain indefinitely, and that in such circumstances the occupier requires a correlative equitable right to remain. [40] In some cases, an equity that arises by estoppel in this way may be conditional upon the performance by the plaintiff of certain obligations, as Vinden also shows. Where there are conditions attached to the expectation - such as contributing to outgoings - the equity is subject to performance of those conditions by the licensee. As Needham J said (at 625B) (emphasis added): In my opinion, while the defendant continued or remained willing to meet those obligations , his licence was irrevocable, or, to put it another way, an equity arose which could be satisfied only by holding the plaintiff estopped from denying that the licence was irrevocable. [41] That a plaintiff will not be able to enforce an equitable interest by way of proprietary estoppel so long as he or she is in default of a condition attached to the enjoyment of the equity appears also from Wood v Browne [1984] 2 Qd R 593 and Beaton v McDivitt (1985) 13 NSWLR 134, 157C-D; see also Young, Croft & Smith, On Equity, [12.310], and O'Neill v Williams, [42] - [43]. The plaintiff can be relieved from the performance of such conditions by conduct of the defendant - for example, by the defendant making it impossible for the plaintiff to meet the condition and also by release, agreement or even acquiescence [O'Neill v Williams, [44] - [45]]. Vinden illustrates this, as the plaintiff (legal owner) made it impossible for the defendant (occupier) to pay the mortgage, by paying it out himself, and to pay the rates, by having the notice redirected.
I am satisfied that the 2005 Representations did not create an unregistered lease of No 36 to Raymond because I accept that the deceased did not ask Raymond to pay rent to reside there and because Raymond did not enjoy exclusive possession of the property (before 2016). On that footing, Raymond was a bare licensee of No 36. It would seem to me that the interest objectively encouraged by the deceased's representations was a licence to occupy, subject to fulfilment of the relevant conditions, rather than a life interest, which would assumedly have required the deceased to have, in substance, encouraged in Raymond the understanding that any estate Raymond had in No 36 would devolve on someone else after Raymond's death. As will be seen immediately below, I am satisfied that Raymond in fact satisfied the conditions placed on his licence to occupy No 36 in the wake of the 2005 Representations. It is ultimately in the context of the conditions placed on Raymond's residence at No 36 that the assumption being encouraged by the 2005 Representations becomes reasonable.

[20]

Encouragement by the 2016 Representations

Secondly, as a matter of fact, I am satisfied on the balance of probabilities that the conversation between Raymond and the deceased, said to have occurred in March or April 2016, set out at [120] above and named the 2016 Representations, did in fact occur in the terms deposed to by Raymond. On that basis, I am satisfied that Raymond has established, as a matter of law, that the deceased encouraged Raymond to alter his position in the expectation of obtaining a proprietary interest, that interest being the fee simple in No 36. In this respect, I find that the assumption encouraged was that Raymond would receive an interest in No 36 after the deceased transferred it to him, but that part of the deceased's encouragement of this interest included a practice whereby the deceased treated No 36, in practical terms, as Raymond's property from the time of the 2016 Representations. The occurrence and content of the 2016 Representations is readily believable in circumstances where the whole of the evidence satisfies me that the deceased clearly intended to benefit his closest friend with a substantial gift of property for the 11 years of support he had provided, and where Raymond continued to provide that support for a further 5 years, beyond even the deceased's death until Val's final day.
In cross-examination, Raymond was asked [T 61.35-61.37]: Q. You never expected to get a property of this nature for doing the type of assistance that you did for Mrs Jansen, did you? A. No. But when he told me, I was appreciative. Yes sir.
I record that I did not take this exchange to signify an admission by Raymond that he did not expect to receive No 36 on the basis of the 2016 Representations. I am satisfied rather that Raymond understood 'expected', in the context of the question, to mean whether Raymond would have imagined that he would be so fortunate as to have the deceased transfer No 36 to him. I take Raymond to have merely expressed by his answer that he was surprised by the generosity of the 2016 Representations.
Luke submitted that Raymond's claim on the basis of the 2016 Representations must fail because the representations contained a condition precedent which has not come to pass, that is: where the deceased represented that he would gift No 36 to Raymond after Val died, but the deceased died before Val. As a question of the encouragement element, the logic is that the deceased made no representation as to any proprietary interest of Raymond in No 36 in the hypothetical scenario in which the deceased died before Val; and as a question of unconscionability, the issue is whether the deceased's conscience can be absolved by the fact of his death preceding his transfer of the title of No 36 to Raymond. This submission fails for the following reasons.
First, I am not satisfied that the assumption made by Raymond in response to the 2016 Representations contained a 'condition precedent' of the sort submitted by Luke; that is, I am not satisfied that the deceased encouraged in Raymond the assumption that the eventual transfer of No 36 to Raymond was contingent on Val predeceasing the deceased. Whatever assumption is made by the representee is ultimately one of fact. The evidence does not support a conclusion that the assumption Raymond in fact made contained the proposition that he would only receive No 36 if the deceased outlived his mother. That is readily understandable: the common course of things is that children survive their parents, and that is the basis upon which Raymond and the deceased communicated about No 36 in the main. That this was in fact the nature of the assumption made by Raymond would have been reinforced by the deceased's conduct in treating No 36 as Raymond's property in practice. It bears repeating what I have already noted above that I have accepted evidence that the deceased did turn his mind to a situation in which Raymond might have to provide care to Val, so that Val would never go into a nursing home, were the deceased to be unavailable to care for her himself. On that basis, I am satisfied that, as a matter of fact, the deceased saw an active role for Raymond in his mother's life after the deceased's hypothetical death. Luke's counsel drew from Raymond the acceptance of the fact that there was never any discussion between Raymond and the deceased as to the outcome of the arrangement should the deceased die before Val. It is telling, then, that the deceased never made a point of explaining that the outcome for Raymond would be an adverse one, and such an explanation would have been bizarre in circumstances where the deceased was beseeching Raymond to ensure his mother was looked after beyond his death.
Secondly, as an objective matter, the words of the 2016 Representations do not convey the 'condition precedent' submitted by Luke. The deceased did not say: "if the old lady dies [or: if the old lady died] before me (because there is a possibility that she does not), then I will [or: would] give you No 36." Rather the deceased said: "when the old lady's gone I'm gonna sell her place and move to North Richmond and finish off the house that I started building and I'm gonna give you 36." There is a distinction to be drawn between these two senses, located in the contrast of 'if' and 'then' against 'when' and 'and'. The first sense would have created a condition precedent, failing which there would have been a total absence of encouragement as to what might have occurred had the deceased predeceased his mother, or perhaps a positive encouragement that the outcome would have been simply that Raymond would not have received No 36. But the second sense, being the sense that I take from the words of the 2016 Representations, was a present statement to the effect that the transfer of No 36 was assured to take place at or after the time of Val's death. The effect of that was to oblige Raymond - if he wanted to receive No 36 one day - to continue to care for Val until the time of her death. He indeed fulfilled that condition.

[21]

Reliance on expectations encouraged by the deceased

Next, as a matter of fact and law, I am satisfied that Raymond relied upon the 2005 Representations and 2016 Representations in providing care services to Val, in helping the deceased to clean and contribute to renovations of No 36, and in assisting the deceased to pay bills and rates. To have done these things reflects a shift in Raymond's lifestyle which is readily attributable to the deceased's representations. Luke's submission against this finding referred to a passage of Raymond's cross-examination which I extract here [T 49.50-50.33]: Q. Mr Daniel, you were very grateful to Richard for allowing you to reside in the property, weren't you? A. Yes, I was. Q. You would agree with me that you thought it was a very kind and generous act on his part for him to allow you to do that? A. Yes, sir. Q. I suggest to you that the reason why you pay the various monies for the outgoings and the assistance to his mother was because of his generosity to you in giving you very cheap accommodation? A. Yes. Well, yeah, that's right. Yeah, I was - I was grateful that he gave me that. Yes. Q. That's why you paid the money and why you rendered the assistance to Mrs Jansen? A. Yes. Then also, he didn't always ask for it. That's what I'm saying here. So, I assisted him when he wanted it and helped pay those. When he needed money, I gave it to him, so yeah. Q. So there's no in fairness to you, I'm suggesting to you that it wasn't because of anything he said to you that you did those things, it was because of your gratitude for his generosity? A. Gratitude for his generosity and plus he made that promise to me. So, I can't - I can't say he never said that because he actually did say that. Q. But that wasn't why you did the things, was it? A. I did those things for - for that reason and for - for to help him out when he needed a help. So, I did everything that he asked for. Q. The suggestion that I'm putting to you, though, is that you did it solely for the reason that you are grateful for his generosity. Do you agree or disagree with that? A. I agree. Yeah. Sorry.
On that basis, submitted Luke's counsel, Raymond was not relying on any representation; rather, Raymond was making the payments out of gratitude for the advantageous accommodation which was being provided to him. I do not accept this submission. The distinction attempted to be drawn by Luke's counsel between acting in reliance on the deceased's representations and acting out of generosity for receiving accommodation is, respectfully, a distinction without a difference. It was open for a person in Raymond's position to act in reliance on the deceased's representations and all the while feel gratitude for the deceased.
In Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 at [88], Meagher JA (with whom Leeming and Payne JJA agreed at [207] and [208] respectively) stated that: "Binding authority requires the party relying on the estoppel to establish that it would have acted differently in the absence of the relevant encouragement", and that this test invoked either a 'contributing cause' or 'but for' question. I am satisfied that Raymond has done so.
In any case, counsel's submission rested on the final question and answer extracted above, but I do not accept that the answer given was an admission that Raymond did not act on the 2005 Representations. The final answer must be taken in its context. Counsel asked essentially the same question three times, the answers to the first two of which were that Raymond relied on the representations and felt gratitude to the deceased. With respect to Raymond, I am not satisfied that he understood the nature of the third question in the way that a barrister would, that is, with an appreciation for the distinction attempted to be drawn. I do not therefore attribute to Raymond an admission that he did not in fact rely on the 2005 Representations in changing his position. The position is encapsulated by a later exchange in cross-examination [T57.13-57.20]: Q. So if I can ask you to reflect on that, I'm now going to put the question to you again. I suggest that the reason why you carried out this maintenance work and why you were looking after Mrs Jansen was not in reliance on anything he'd said to you, but for gratitude for getting cheap accommodation. Do you agree or disagree with that? A. I agree that he did that for - like - what he did for me and what I did for him, I agree, yes. He did a lot for me. It was my gratitude, yes, and I also repaid that gratitude in - in fulfilling my promise to him.

[22]

Change of position to Raymond's detriment

Next, as a matter of fact and law, I am satisfied that Raymond changed his position to his detriment in the wake of the 2005 Representations and the 2016 Representations. Luke's submission against this finding was threefold, and it serves to address these three components separately.
The first component was that Raymond could not be said to have suffered a detriment in the sense required by the doctrine of equitable estoppel where he had only outlaid expenditure in the order of about $9,450 plus any electricity, water and council rates that he may have paid, and plus the assistance rendered to Val. The monetary figure given was derived from certain paragraphs of Raymond's affidavits, and, in respect of the assistance rendered to Val, the written submission was made, simply, that: "The assistance allegedly rendered by him to Val is not of a nature or extent that would constitute detrimental reliance in the circumstances of the case." In closing, Luke's counsel accepted that he did not have evidence to contradict that Raymond was providing some assistance to Val.
Raymond relied on a number of first instance decisions of this Court as authority for the proposition that the provision of assistance and care to a person in need of it can constitute detriment for the purposes of equitable estoppel. I accept that submission. In Moore v Aubusson [2020] NSWSC 1466, Ward CJ in Eq (as her Honour then was) made the following observations in respect of the issue: [410] That brings me to the question of detriment. Again, there is no presumption of detriment; that detriment has been suffered (or will be suffered) must be established on the balance of probabilities. However, the concept of detriment in the context of proprietary estoppel is neither narrow nor technical (Donis v Donis at [20], per Nettle JA, as his Honour then was). The question of detriment is assessed as at the time a party seeks to depart from the assumption or expectation (DHJPM at [72], per Meagher JA, Macfarlan JA agreeing). Relevant detriment can consist of the making of "life-changing decisions with irreversible consequences of a profoundly personal nature" (Donis v Donis at [34], per Nettle JA, as his Honour then was; cited approvingly in Sidhu v Van Dyke at [84], per French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ). [411] Where I do accept that detrimental reliance was established - addressing the question whether the plaintiffs have has suffered or will suffer detriment if there is departure from the induced assumption upon which they acted (i.e., if the deceased's estate is permitted to act inconsistently with any expectation encouraged by the deceased in relation to her testamentary intentions) - is in the provision of an increasing level of assistance and care over the years (at the expense, at least in some instances, of their own family commitments or wishes - such as the foregoing of visits to family overseas), and what I accept was the care provided by Mr Moore at a time when Ms Andreasen was herself ill (see the evidence of Ms Andreasen in her affidavit sworn 21 March 2016 at [101] to which I have referred above) as well as the time spent looking into treatments for the deceased's health conditions beyond what was being provided to her as a matter of course (see the evidence of Dr Suda in her affidavit sworn 21 March 2016 at [12]-[15]; and her affidavit sworn 3 April 2018). That seems to me to be evidence of life-changing decisions in their personal lives that have had irreversible consequences (in the sense that one cannot now "turn the clock back" after the personal sacrifices that will inevitably have been made over the years in order to provide the assistance that was given), sufficient to meet the test for detrimental reliance approved in Sidhu v Van Dyke. [412] While I accept that at least some of that assistance (and certainly a much increased level of assistance) occurred after the plaintiffs (on their case, although I do not accept Mr Moore's version of the 16 January 2014 meeting with Mr Grace) became aware that the deceased had not made a Will in their favour, that does not alter the fact that there had been a considerable level of assistance before that time (and, in any event, not long thereafter there was the making of the Codicil, which no doubt the plaintiffs considered had rectified the problem in relation to the deceased's Will). [413] Further, in the English case of Jennings v Rice [2002] EWCA Civ 159, the Court of Appeal noted the following about the nature of detriment that may be occasioned to a plaintiff in a case where the care of the promisor was part of the subject-matter of the promise or representation. 51. … Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant's expectations. Detriment can be quantified with reasonable precision if it consists solely of expenditure on improvements to another person's house, and in some cases of that sort an equitable charge for the expenditure may be sufficient to satisfy the equity (see Snell's Equity 30th ed para 39-21 and the authorities mentioned in that paragraph). But the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms. Moreover the claimant may not be motivated solely by reliance on the benefactor's assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the court has to exercise a wide judgmental discretion. [Emphasis added] [414] I accept that, in the present case, the "burden of care" described above is a description of a part of the relevant detriment claimed. While the plaintiffs did not live in the same house as the deceased (and so could be said to be under a lesser burden of care, especially given the presence of professional carers), they nonetheless did alter their life-style to accommodate the deceased's needs, and to provide companionship and support as the deceased aged over a number of years. [415] There were submissions made to the effect that the conduct said to amount to reliance had benefited the deceased but, as the defendant pointed out in oral submissions, the relevant question is not whether the conduct was to the benefit of the deceased but whether reliance on the representation or promise was detrimental such that it would now be unconscionable for the deceased, through her executor, to resile therefrom. Moreover, as I understood them, those submissions as to benefit went more to the proposition that, first, the deceased had intended the plaintiffs to rely on the promise, well understanding what would be involved in its performance; or, second, that on the contractual claim there had been no complaint as to the manner of performance of the obligations asserted to have been agreed on the part of the plaintiffs.) [416] Thus, I find that detrimental reliance sufficient to render it unconscionable for the deceased to resile from the testamentary promises has been established; and the elements of proprietary estoppel made out (and it is unnecessary to consider the alternative claim in promissory estoppel).
In Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 (Zupicic v Paino), Sackar J held at [482]-[491] that the plaintiff acted to her detriment on the particular facts of that case, which involved the plaintiff doing such things for the deceased representor as: preparing food, spending Christmas and Easter over many years, taking him to medical appointments from time to time, bringing him clothes, refurbishing his kitchen, installing an air conditioner in his apartment, keeping him company, and cleaning and washing his belongings. Sackar J was also satisfied that a reason for the plaintiff refusing a promotion at work was to remain flexible to attend on the deceased representor. At [491]-[495], Sackar J wrote (emphasis added): [491] The detriment so called although in a family setting to some extent is perhaps a misnomer but it was the additional time, energy and effort expended by the Plaintiff partly I accept out of a sense of familial obligation but I am equally certain as a result of the many promises from Mr Novick to leave her his entire estate. The travelling from the Northern Beaches to the Eastern Suburbs over the years was not and is still not an easy journey. In turn the Plaintiff and her family made a room available in their home at Mona Vale, where I am certain Mr Novick stayed happily from time to time over Christmas, New Year, Easter and on some weekends. Having an extra person in the house or at the dinner table over a long period, even when they are family can be and often is a burden. That burden is one that family members often willingly assume nonetheless it requires effort and in this case because of the distance between them considerable effort on the part of the Plaintiff. I am satisfied the considerable time and expended effort on Mr Novick over the many years would not have been done by the Plaintiff were it not for the promises made by him to her in relation to his estate. Those efforts were expended over at least 20 years. The cost in terms of money and time would be impossible accurately to quantify but on any view it was clearly very substantial. Conclusion [492] I am satisfied that over the many years Mr Novick indeed made the various promises which the Plaintiff and others have given evidence to the effect that as a result of looking after him he would leave his estate to her. I am also satisfied that the Plaintiff relied to her detriment upon those promises. The detriment suffered by dedicating time and effort to Mr Novick was life changing. Those years cannot be regained. … [494] In my view given the length of time over which the Plaintiff carried out the various activities as a result of his promises as I have found it would in my view be unconscionable to permit him to resile from the promises made and the expectations which he created in the mind of the Plaintiff and which caused her to expend the time and effort as alleged. In the circumstances in my view Mr Novick should be held to those promises. [495] Further in my view this is a matter in which the mere measure of money is insufficient to recognise that which the Plaintiff has done in reliance upon Mr Novick's promises. A substantial fulfilment of the assumption upon which the Plaintiff's actions were based in my view requires her to be placed in a position whereas as far as can be now she obtains the benefit of what is left of his estate.
Luke's submission does not give proper credit to Raymond's contributions to Val's care over a period of close to 17 years, which, to my mind, was the underpinning aim of the deceased's offer that Raymond reside at No 36 in the first place. It is clear that Raymond fulfilled his duty with dedication up until the date of the 2016 Representations, then beyond that time until the date of the deceased's death, and then right up until Val's death in 2021. As Sackar J observed in Zupicic v Paino at [491], and as I consider to be a matter of human experience, the provision of care to a person requiring assistance, be they elderly or otherwise, can be a substantial burden - a word I use intending no disrespect whatsoever - on the care provider's lifestyle, one which requires the expenditure of time and a wealth of emotional effort. I consider it the case that that burden is further pronounced when the person being cared for is not a relative but rather a neighbour or family friend. It is a burden which equity, in the circumstances of a given case, can recognise as giving rise to an equitable estoppel. In that context, Raymond's outlay of some indeterminable sum of money towards renovations on No 36, the maintenance of the two adjacent properties in apparently squalid conditions owing to the deceased's hoarding, and the payment of bills and rates, forms part of a broader picture in which Raymond changed the course of his life to dedicate almost two decades to aiding his friend to provide for his ailing mother.
The second component of Luke's submission on the detriment issue was that Raymond cannot be said to have suffered a relevant detriment where he was inhabiting No 36 rent-free, or for the sundry expenses required of him by the deceased's 2005 Representations, and therefore received the benefit of accommodation below the market rate, in circumstances where he was facing eviction from his rental property.
The law of equitable estoppel requires that the assessment of a plaintiff's detriment involve consideration of any countervailing benefit that has accrued to them under the arrangement encouraged by the representations: Q (a pseudonym) v E Co (a pseudonym) at [154]-[157] (Meagher JA). Flowing from that is the further proposition, stated by Meagher JA in Q (a pseudonym) v E Co (a pseudonym) at [154], that: "[i]t is possible to conceive of cases in which a party relying on an expectation will have benefitted so greatly through his or her reliance that he or she would suffer no prejudice or disadvantage if the expectation were departed from."
I do not consider that this is a case where the benefit of accommodation below market rate is so significant, when compared to the detriment of providing care and assistance to Val, that it has obviated that detriment, and that is for the reason that Raymond restructured his life for 17 years to provide care and assistance to Val in such a way that he fulfils the description of Ward CJ in Eq in Moore v Aubusson of the plaintiff's situation in that case (at [411]): [411] … That seems to me to be evidence of life-changing decisions in their personal lives that have had irreversible consequences (in the sense that one cannot now "turn the clock back" after the personal sacrifices that will inevitably have been made over the years in order to provide the assistance that was given), sufficient to meet the test for detrimental reliance approved in Sidhu v Van Dyke.
The third and final component of Luke's submission on the detriment issue was that the deceased was in fact the primary care giver to his mother, and accordingly that Raymond's contributions to Val's care must have been limited as a result. One could add to that submission the suggestion that Francine shared the load in respect of Val's care from 2016 onwards, though the basis upon which Francine provided care to Val (i.e., whether Francine was paid to do so by Val or Raymond, or otherwise) was not clearly established by the evidence. Val's evidence would support a finding that the deceased was her primary carer until the time of his death, after which time Raymond and Francine were clearly her primary carers. Raymond accepted in cross-examination the suggestion that the deceased was the primary carer for his mother between 2004 and 2016. I do not think it is really relevant that the Court make a finding as to who was the 'primary' carer for Val at any given time because I do not take that term to have any real content. The relevant question is whether Raymond in fact suffered detriment by providing care services to Val, and the evidence does not support a finding that the deceased's own contributions to Val's care were of such quality as to make Raymond's contributions less burdensome. The reality of the situation was that Raymond performed care services when the deceased could not, and it was in those situations that Raymond provided a service that was critical to the proper conduct of Val's and the deceased's lives. Over the course of 17 years, those contributions were substantial.

[25]

Family provision claim - consideration

In accordance with the observation of Kiefel CJ, Gageler and Keane JJ in Boensch v Pascoe (2019) 268 CLR 593 at 600-1; [2019] HCA 49 at [7], it is appropriate that the Court record nominal findings on the issues arising in the family provision claim notwithstanding that Raymond has been successful in his equitable estoppel claim. I have set out the relevant evidence above, but this is one of those uncomfortable cases where a successful appeal of my decision on the equitable estoppel claim could turn on innumerable factors of both a factual and legal nature, any number of which would influence the determination of the family provision claim. The Court must do what it can in the circumstances.
The first issue in the family provision claim is whether, given that Raymond's family provision application had been made later than 12 months after the date of the death of the deceased, the Court ought to order otherwise, on sufficient cause being shown, that Raymond be permitted to make his family provision application: Succession Act, s 58(2). I would have determined that Raymond has shown cause for his delay of about 1 year and 3 months. The deceased died in April 2019 and Luke appeared to Val and Raymond only in April 2020, that being the end of the 12-month limitation period imposed by s 58(2). I have accepted Raymond's evidence that he did not believe Luke's bare assertion at that time that Luke was the deceased's son, and that Raymond had no reason to believe it. The only real reason Raymond would have had to believe that his position in No 36 was unstable was the appearance of Luke at Merrylands West along with some reasonable basis for Luke's claim that he was entitled to the deceased's estate on intestacy as the deceased's biological son. Raymond (and Val) would have been on notice of the likelihood of Luke's parentage in February 2021 and then satisfied of it in June 2021. The delay from either of those months until Raymond's filing of his statement of claim in July 2021 is therefore explicable and not prejudicial to Luke.
The second issue is whether Raymond is a person who was, at any particular time, wholly or partly dependent on the deceased person: Succession Act, ss 57(1)(e)(i), 59(1)(a). The question is: "has reliance on another to fulfil a need been shown?" and it is a question of fact: Spata v Tumino [2018] NSWCA 17 at [71], [78] (Payne JA, with whom Macfarlan JA and Sackville AJA agreed at [1] and [132] respectively). The role of the word "partly" in the statutory language is to set the requisite level of dependency at a "more than minimal", rather than a "significant" or "substantial", level: Chisak v Presot [2022] NSWCA 100 at [47], [57] (White JA, with whom Macfarlan and Gleeson JJA agreed at [1] and [2] respectively). Luke relied on two propositions stated in Spata v Tumino on this issue: 1. "Legal title to property is a relevant factor to be considered when addressing the question of dependency upon another for accommodation but is not, of itself, determinative of the question": Spata v Tumino at [84] (Payne JA); and 2. "[R]eliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another's property without paying rent does not necessarily amount to dependence": Spata v Tumino [2018] NSWCA 17 at [82] (Payne JA).
I would have determined that Raymond was at least partly dependent on the deceased for at least the period of 6 or 7 months in 2010 in which the deceased did all shopping for Raymond and in which the deceased offered emotional support to Raymond in circumstances where Raymond was anxious and depressed in light of his daughter's brain surgery and he reduced his work hours significantly. The evidence of that fact was not challenged. That fact elevates Raymond's case above one in which he was merely lodging in another's property without paying rent. Above and beyond that fact is that the very impetus for Raymond's moving in to No 36 in early 2005 was the financial and emotional difficulty Raymond was facing in 2004: Raymond needed security of housing and social stability, and the deceased provided that by allowing him to reside at No 36. Even if it can be said that Raymond could have improved his position sufficiently to secure his own housing at some point in time, the statutory test is such that "[d]ependency may exist irrespective of whether the dependent person is financially or physically able to support himself or herself": Tobin v Ezekiel (2012) 83 NSWLR 757 at 787; [2012] NSWCA 285 at [110] (Meagher JA, with whom Basten and Campbell JJA agreed at 761 [1] and 764 [19] respectively).
The third issue is whether Raymond is a person who was, at the particular time of being wholly or partly dependent on the deceased person, or at any other time, a member of the household of which the deceased was a member: Succession Act, ss 57(1)(e)(ii), 59(1)(a). In Yesilhat v Calokerinos [2021] NSWCA 110 at [133], Brereton JA (with whom Bathurst CJ agreed at [1]) stated: [133] It is also inherent in the concept of membership of the same household that the members of the household be living together. The notion of membership of a household involves a common residence in which two or more persons not only share the facilities but also live together. Membership of (as distinct from presence in) a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree, and there are no hard and fast rules, at least generally, the minimum requirements include at least some element of residing (as distinct from visiting), and mutual living so that there is a quasi-family unit (as distinct from boarding). The fact that a person lives in the residence of another only periodically, or for a very short period, is insufficient to render him or her a member of the other's household, as the required degree of continuity and permanency is not present. Where one person occasionally stays over at the other's house, but maintains his or her own separate accommodation as a principal place of residence, it cannot be said that they are living together or members of the same household, notwithstanding that the emotional relationship between them is substantial, strong, loving, intense, and enduring. In this respect, there is a distinction between a visitor and a resident, which may be easier to recognise than precisely describe; but residence involves aspects of continuity and permanence, and indicia such as use of the place as an address, and as a location where personal items and effects are kept and the activities of daily living (such as sleeping, washing and dressing) are performed.
I have above found that the deceased resided across both No 34 and No 36 until the time of the 2016 Representations. It cannot be said that the deceased was merely a visitor at No 36, and nor that he was merely a boarder there. It also cannot be said, to engage the phraseology of Brereton JA quoted above, that the deceased "occasionally stay[ed] over at [Raymond's] house, but maintained his or her own separate accommodation as a principal place of residence" at No 34. The deceased kept personal items and effects at No 36 and he slept there. The picture presented by the evidence of the period between the 2005 Representations and the 2016 Representations is that the deceased treated the two properties as one unified domestic space in which he could move freely, and into which he had invited Raymond to reside as well. I would therefore have determined that Raymond and the deceased were members of the one household for some period of time between the 2005 Representations and the 2016 Representations.
The fourth issue is whether, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application: Succession Act, s 59(1)(b). The test in this respect is whether Raymond would be regarded as a natural object of the deceased's testamentary intentions: Sun v Chapman [2022] NSWCA 132 at [120] (White JA), [193] (Brereton JA). I would have determined that he was one. From the 2016 Representations at the latest until the date of his death, the deceased intended that No 36 would be given inter vivos to Raymond in recognition of Raymond's support in caring for Val. I have already stated that that was not a testamentary intention, but it was an intention that Raymond benefit significantly from the deceased's estate during the deceased's lifetime. Raymond contributed in a substantial way to Val's welfare and therefore to the deceased's life. The deceased clearly considered Raymond to be a natural beneficiary of his property, and his contributions to the deceased's and Val's lives justify that status in an objective sense.
The fifth issue is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Raymond has not been made by the operation of the intestacy rules in relation to the estate of the deceased: Succession Act, s 59(1)(c). I would have determined that adequate provision had not been made for Raymond's proper maintenance, in that the deceased did not discharge his moral duty to provide for Raymond in circumstances where he made no provision for Raymond and the intestacy rules left the entirety of the deceased's estate to his only child. Raymond and the deceased's friendship was rich and enduring, and they contributed substantially to each other's lives for around 14 years. Raymond has demonstrated his need for provision in respect of his housing security and medical conditions. I have considered that the deceased (and later Val) allowed Raymond to reside rent-free at No 36 for around 16 years and I accept that this was a significant benefit to Raymond, but I do not consider, in all the circumstances in the case, that that fact alone would absolve the deceased of his moral duty to make adequate and proper provision for Raymond: to do so would be to ignore the substance of the relationship between Raymond and the deceased that Raymond resided at No 36 in return for Raymond's contributions to Val's welfare. Ultimately, I am satisfied that, had he not predeceased his mother, the deceased would have remained true to his word to Raymond and gift No 36 to him, wholly in accordance with community expectations.
The sixth and final issue is whether the Court thinks it ought to make an order for provision out of the estate of the deceased for the maintenance, education or advancement in life of Raymond, having regard to the facts known to the Court at the time the order is made; and, if so, what order: Succession Act, s 59(2). I would have determined that the Court ought to make an order that Raymond receive $750,000 by way of provision from the deceased's estate. To do so would be to ensure that Raymond could purchase suitable accommodation and possibly retain a sum for contingencies. That figure would reflect the deceased's clear intention to benefit Raymond for his assistance rendered to Val and the strength of their friendship. After the payment of costs out of the estate, that order would leave Luke with a figure just shy of $1.5 million, primarily in the form of the North Richmond Property.

Daniel v Athans

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