Estephan v Estephan

Judgment 1The plaintiff, Daher Estephan, is the son of the defendant, Nehmetallah Estephan, and is the eldest of six children. He has two brothers, Jihad and Dany, and three sisters, Nawal, Clemence and Luna (also known as Lona). By the early 1970s all of the members of the family had emigrated from Lebanon to Australia. 2Since the date of its purchase in 1976 the defendant has been the registered proprietor of a property at Hurlstone Park, New South Wales, that was the family home (the Property). The defendant and his wife lived in the Property from the date of its purchase in 1976 until the defendant's wife moved into an aged care facility in recent years. The defendant, who is now aged 83 years, still resides in the Property with one of his grandchildren. The plaintiff lived in the Property from 1976 until 1980. He then travelled overseas for two years and in 1982 he once again took up residence and remained living in the Property until 2010. All of the plaintiff's siblings had moved out of the Property by the mid 1980's. The plaintiff's wife, Noha Estephan, also lived in the Property from the date of her marriage to the defendant in 1996, together with their three children born in the late 1990s and early 2000. 3In 2009 the defendant asked the plaintiff to assist him with the sale of some of his properties in Lebanon. In 2010 the defendant became suspicious that the plaintiff had sold some of his property in Lebanon inconsistently with his instructions. This led to a family dispute and a fracas at the Property in July 2010 when police officers were called. The upshot was that the plaintiff, his wife and their children left the Property and have since resided elsewhere. A subsequent family meeting at the Property failed to resolve the family dispute. 4The plaintiff seeks a declaration that the defendant holds the Property on trust for him. The plaintiff also seeks a declaration that the defendant is estopped from denying that the plaintiff is entitled to own the Property. The plaintiff claims that: (1) he contributed approximately $4,000 of the $36,000 purchase price of the Property in 1976; (2) by agreement in 1985 (the 1985 Agreement), the defendant promised to transfer the Property to him on the condition that he funded and carried out certain renovations to the Property in 1986-1987; (3) alternatively, the defendant promised the plaintiff that if he funded and carried out renovations to the Property in 1986-1987 he would transfer the Property to him; and (4) in reliance on that promise he proceeded to renovate the Property at his own expense. The defendant denied that the plaintiff made the $4,000 contribution to the purchase price of the Property. He also denied that the 1985 Agreement was entered into or that he made the alleged promise. He also denied that the plaintiff made any financial contribution to the renovations to the Property. Matters in issue inlcude: (1) whether the plaintiff contributed $4,000 towards the purchase price of the Property; (2) whether the 1985 Agreement was entered into; (3) whether the defendant made the promise to the plaintiff as alleged; and (4) whether the plaintiff contributed to the cost of the renovations in reliance of that promise. It is not in issue that the Property was renovated. 5When the plaintiff commenced these proceedings, the Statement of Claim filed on 6 December 2010 included a claim that a term of the 1985 Agreement was that, if the plaintiff funded and undertook the renovations the Property would become the plaintiff's "upon the plaintiff marrying". On the first day of the trial, counsel for the plaintiff indicated that the words "upon the plaintiff marrying" were abandoned. There was no objection to this abandonment. There was no explanation or evidence as to why the abandonment occurred. Nor was the plaintiff cross-examined about the abandonment. The trial and mediation 6The proceedings were heard on 21, 22, 23 and 24 November 2011 when Mr M Condon, of counsel, appeared for the plaintiff and Mr DA Lloyd, of counsel, appeared for the defendant. 7On the first day of the trial, counsel read the affidavits in support of their client's respective cases. Mr Condon read the plaintiff's three affidavits sworn on 16 May 2011, 29 July 2011 and 18 November 2011; and the affidavits of the plaintiff's wife, Noha Estephan, sworn on 16 May 2011 and 29 July 2011; the plaintiff's sister, Lona Assam, sworn on 11 May 2011, 29 July 2011 and 18 November 2011; the plaintiff's brother-in-law, Elias Assam, sworn on 11 May 2011 and 18 November 2011; the plaintiff's sister, Clemence Estephan, sworn on 10 May 2011; and a neighbour and friend of the family, Louis Sara, sworn on 11 May 2011 and 29 July 2011. 8Mr Lloyd read the affidavits of the defendant sworn on 14 July 2011 and 15 November 2011; the defendant's son and plaintiff's brother, Jihad Estephan, sworn on 14 July 2011 and 15 November 2011; the defendant's son and plaintiff's brother, Dany Estephan, sworn on 14 July 2011 and 15 November 2011; Dany's wife, Norma Estephan, sworn 14 July 2011; the defendant's grandson, son of Jihad, Nehmeh (Norm) Estephan sworn 14 July 2011; the defendant's grand-daughter, Dany's daughter, Julie Estephan sworn 14 July 2011; and a friend of the defendant, Rita Pavey, sworn 1 June 2011. 9On the third day of the trial, 23 November 2011, after the defendant and Jihad had been cross-examined, Mr Lloyd made application to withdraw the affidavits of the remaining witnesses, leaving only the defendant's evidence and that of Jihad in the defendant's case. Mr Condon consented to that course. At that point I referred the parties to immediate mediation that took place in the facilities of the Court until 5pm, when it was noted that the mediation session had concluded and the parties had failed to resolve their differences. Final submissions were made on 24 November 2011, at the conclusion of which judgment was reserved. Purchase of the Property - 1976 10The first aspect of the plaintiff's case is his claim that he contributed to the purchase price of the Property. In about July 1976 the Property was purchased for approximately $36,000. The evidence establishes that it was a very small house consisting of two average size bedrooms, a very small bedroom and an even smaller bedroom. There was a small old kitchen and no separate lounge, dining or other common room. There was one small and very old bathroom. The only toilet was situated in a shed in the backyard. 11The plaintiff claimed that the purchase of the Property was funded by a mortgage from the Commercial Banking Corporation (later the National Australia Bank (the Bank)) to the extent of approximately 55% of the purchase price, with the balance being funded by the defendant, the plaintiff, the plaintiff's sister, Clemence, and the plaintiff's younger brother, Dany, in equal amounts. The plaintiff's affidavit evidence was that, to the best of his recollection he paid approximately $4,000 towards the purchase price and that he did not intend that money to be a gift. His evidence was that pursuant to "cultural customs and traditions", the Property was registered solely in the defendant's name. In cross-examination, the plaintiff said that he did not consult a solicitor in relation to the provision of the $4,000 and he agreed that there was no documentation in relation to this contribution. He agreed that $4,000 was a great deal of money in 1976 and said (tr 19): I know that, I know that, I know that, but when I could personal, good friend to stand beside you to help you that you are newcomer to the country because you've been with all that time, it's not big money at all when you have to borrow if from friend of yours. 12The plaintiff also agreed that prior to preparation and/or the commencement of the proceedings, he had not mentioned the $4,000 to the defendant, but denied that the reason for not mentioning it was because he did not make the contribution (tr 19). 13In his affidavit of 14 July 2011, the defendant gave evidence that he did "not recall" any contributions from anyone towards the purchase of the Property. However in cross-examination the defendant moved from this position of a lack of recollection to a denial and gave the following evidence (tr 132-133). Q. I want to suggest to you that Daher provided $4,000 towards the purchase price of the [Property]? A. Never, no, nobody pay, only myself, nobody pay, nobody help. 14The plaintiff's sister, Clemence, claimed in her affidavit that part of the purchase price for the Property was borrowed from the Bank and that she, the plaintiff, the defendant and Dany each contributed $4,000 towards the purchase price. Clemence arrived in Australia in about 1974 and had been working for at most two years at the time the Property was purchased. In cross-examination Clemence said that when she first arrived in Australia she was working in a clothes factory as a machinist. She could not recall exactly how much she was paid, but said that she was able to save some of that money (tr 98). She said that between the time that she commenced her work and mid-1976 she was able to save $4,000 from her work as a machinist (tr 99). She gave the $4,000 to her mother because, at that time, her mother "hold all the money" (tr 99). She claimed that her mother said that the money would be given back to her (tr 100). 15Clemence agreed that she was aware of the dispute in the family and gave the following evidence (tr 100): Q. And you support your brother, Daher, in this dispute? A. No, I support what I can see. Q. And what is it that you say you can see? A. I can see that my brother, Daher, used to live with my parents all his way, and help them with building the house and looked after my parents. Q. And what you want is for Daher and his family to be able to move back into the house, correct? A. Yes. 16The defendant claimed that, at the time of the purchase of the Property, Clemence was 17 years old and she did not make any contribution to the purchase price of the Property. He claimed in his affidavit that he obtained a loan from the CBC Bank for $20,000 and that he made all of the mortgage payments. He said that his "best recollection" was that he paid this loan off in 1984. 17There is no documentary support for the evidence given by the plaintiff, the defendant or Clemence in relation to their contributions towards the purchase price of the Property. The fact that no evidence was called from Dany allows the conclusion that his evidence would not have assisted the defendant's case: Jones v Dunkel (1959) 101 CLR 298 This is particularly so where his evidence was originally read in support of the defendant's case and then withdrawn. 18I have referred below to the lack of supporting documentation in relation to the claims made in the respective cases. The assessment of the evidence in those circumstances combined with the fact that some of the relevant events occurred 35 years ago (in the case of the purchase of the Property) and 25 years ago (in the case of the renovations to the Property) is not free from difficulty. Both the plaintiff and the defendant suffered from a lack of clarity in their evidence. However the defendant in particular, as recognized by his own counsel, tended to overstate matters. Although his counsel submitted that this is understandable in the circumstances in which he finds himself, it is a matter that I have taken into account in assessing the competing versions of the events surrounding the purchase of the Property 19Although I have some reservations about the plaintiff's claims in this regard, on balance I prefer his evidence to that of the defendant. I am satisfied that the plaintiff contributed approximately $4,000 towards the purchase price of the Property. 1976-1985 20The plaintiff gave evidence that, in 1980, he sold his taxi business and went overseas for two years. Following his return to Australia, he worked for someone else driving a taxi until 1985 when he purchased his own New South Wales taxi plates and worked as a taxi driver in his own business. He gave evidence in cross-examination that between 1982 and 1985 he used to give money to his mother. He also paid for food and other bills (tr 22). His evidence included the following (tr 23): Q. Is it fair to say that you earned more money as a taxi driver after you bought the business in 1985 than when you were working for somebody else before 1985? A. I think it's fair when you have your own business and you have good accountant knows how deal, they know if you buy for new taxi which is tax deductible which when you buy new uniform tax deductible, when you pay for restoration with cost, you know, fortune and insurance for compensation. It's all that that count, what you earn after you paying interest, after you paying out that's what they mean by your earning. 21The plaintiff gave evidence that in the mid 1980s the defendant stopped working and went on to a pension and that at that time his mother was also on a disability pension. A couple of years later the plaintiff sold 50% of the equity in the taxi plates to his brother, Dany. He claimed that Dany gave him $10,000-$12,000, well below the then market value and that "in essence" he "gifted the majority of the real value of 50% of the taxi plate business to Dany to help him out". He claimed that he serviced all the expenses of the taxi business and gave Dany $200 per week. He claimed that he did this because he had been brought up to believe that the older siblings try and help out the younger members of the household wherever possible. He claimed that he continued to be the sole provider of food for his parents and himself and to pay the telephone bills and insurance expenses. He also claimed that he continued to pay the "then" mortgage, the rates and water bills and also made financial contribution towards the electricity bills. The 1985 Promise 22The plaintiff claimed that in around 1985 he had the following conversation with the defendant: Defendant: The house needs to be fixed. There are many problems and we want you to fix them. Plaintiff: I would have to borrow money then to have this work done. Defendant: Daher, if you borrow the money and do this work, we will give you this house. We always wanted it to be yours anyway, particularly as when you get married, we want you to live here with your family. 23The plaintiff claimed that he then had some discussions with the Bank and subsequently had a further conversation with the defendant in the following terms: Plaintiff: I have been to the bank and I can borrow money from the bank, but they want security and they have asked for a mortgage over the home. As the home is registered in your name, you will need to agree to the mortgage. I have some cash savings which I can start spending on the home straight away to get the project going, but then I will need to borrow money, which will put me in debt. Defendant: That's fine, if you do these renovations, we will give you the house. I promise, it will be yours. You will be responsible for the mortgage. This house is as much yours as it is ours and when you get married, we want you to stay in this house. Lets fix up the house, you get married and start your family here in this home, this house will be yours. It will be put into your name. Plaintiff: If you promise me this, then I will go ahead and do the renovations and borrow this money. Defendant: Yes, it will always be your house. 24The plaintiff claimed that, in reliance upon these promises and statements by the defendant, he decided to proceed with the renovations and to borrow money from the Bank. He applied for a Building Permit to undertake the renovations of the Property at a cost of $300. He engaged architects to draw up plans for the renovations and he paid the fees for those services. Canterbury Council issued a Building Permit on 9 April 1996. The application had to be made in the defendant's name because he was the registered proprietor of the Property. The plaintiff claimed that, although the application was in the defendant's name, the defendant "had nothing to do with" the application, the plans, approval or the work carried out in renovating the Property. The Renovations 25The plaintiff annexed a bundle of invoices to his affidavit that he claimed related to some of the materials for the renovations for which he paid. These include two receipts addressed to the plaintiff from Vincent Buda & Co for $806 for windows and some form of tape for $57.50, both dated 8 March 1986. There is another receipt from the same company addressed to the plaintiff for $392 for building materials dated 17 March 1986. There are "cash" receipts from the same company for $30, dated 22 March 1986, and $65, dated 24 March 1986. There are also delivery dockets from Tucknotts Texture Bricks Pty Ltd addressed to the defendant. There are two Boral Concrete "Cash Sale" receipts, one for $608, dated 6 March 1986 and the other for $627, dated 14 March 1986. There are three Bargain Building Supplies documents - a quotation for windows and bars, dated 12 March 1986 and two undated Cash Sale Receipts for $579 and $70. 26The plaintiff gave evidence that during the period of the renovations he continued to work seven days a week frequently doing night shifts in the taxi in order to enable him to have adequate time during the day to manage the renovations to the Property. He claimed that he attended the Property every day throughout the period of the building works, liaising with the builder, continuing to monitor the progress of the works and making decisions and giving instructions to the builder as the project progressed. He claimed that he frequently rendered assistance to the builder to save money, such as the provision of labouring services, carting bricks and concrete, moving building materials around the site, visiting suppliers to place orders for building materials and, where practical, collecting items necessary for the building works from suppliers in his taxi. 27The plaintiff claimed that, by the end of 1986, the building work had been progressing slowly due to his cash flow difficulties. He claimed that it was in December 1986 that he borrowed money from the Bank, secured by a mortgage over the Property, to complete the renovations. In support of this claim the plaintiff annexed to his affidavit what appears to be the last page of a document from the Bank. That document refers to a payout of $55,903.67 of a previous facility, with the total amount recorded as $57,500. The predetermined credit charge at 19% per annum was fixed at $39,279.52, making a total facility of $96,779.52, with monthly instalment repayments of $1,344.16. That document records that the loan was guaranteed by the defendant and was secured by a mortgage over the Property. The plaintiff claimed that he obtained this loan because it was "needed to assist in paying for the renovations". 28The plaintiff's evidence was that the renovation works were completed in around mid-1987 and that the Property had been transformed from an old run down brick and fibro house into a new full double brick and tiled spacious home with four large bedrooms, one large new bathroom with separate bath and shower, a new internal laundry, two internal toilets, a large dining room, a large and separate lounge room, a new large kitchen, and generous verandas at the front and rear of the Property. There was no challenge to the plaintiff's evidence in relation to this transformation of the Property. 29The plaintiff claimed that at the time the renovations were completed, a conversation occurred with the defendant and the plaintiff's mother in the following terms: When are you getting married? You must get married now that you have renovated the home and make this home nice and new for your new bride. You need to put new furniture in here; you can't have this old furniture in here when you get married. What would your new wife think? You must start making preparations in readiness for getting married. 30The plaintiff claimed that as a result of this conversation he purchased new furniture at his own expense. The plaintiff also claimed that he made most of the mortgage payments and that the defendant occasionally made some minor contributions. He claimed that he made these repayments in reliance upon the promises made by the defendant that the Property would be transferred to him. He claimed that he and the defendant shared the payment of the electricity bills and council and water rates, but that he funded the cost of living for the family associated with food, insurance and the telephone. He claimed that he remained the primary earner of the household. 31Over the next few years the plaintiff continued to care for his mother, whose health continued to deteriorate. He claimed that he drove his taxi seven days a week and supported the family financially. He undertook most of the maintenance of the Property and funded the repainting of the home on at least two occasions since 1986. The plaintiff claimed, he continued to "service the mortgage and the borrowings". 32In August 1997 the plaintiff and Dany purchased a 20 hectare farm at Pheasants Nest, New South Wales (the Farm) for the purpose of growing vegetables for sale. The plaintiff and Dany obtained a loan from the St George Bank to fund the purchase of the Farm and by 2000 the debt was approximately $263,000. The plaintiff agreed in cross-examination that he and Dany refinanced the farm loan in 2000 with the Bank (tr 65). Although the evidence in relation to this vegetable business on the Farm is sparse, it appears that the plaintiff and Dany continue to operate it and the defendant and his wife visit it from time to time. 33The plaintiff claimed in his affidavit evidence that by 2002, he was experiencing financial pressure and wanted to pay off the loan that he had taken out for the renovations and extensions. He decided to sell his taxi business that he and Dany owned. He received $265,000 as proceeds of sale, out of which Dany received $182,500. The plaintiff used his share to pay out his share of the loan on the taxi business and the mortgage over the Property. He claimed that he did this in reliance upon the promises made by the defendant. 34Louis Sara purchased his home diagonally opposite and approximately 25 to 30 metres from the Property in 1960. He has known the defendant and his wife and the plaintiff since about 1976. He said that he had become well acquainted with the plaintiff and his family and the defendant and his wife and that they are "good friends". Mr Sara gave evidence that he had observed the plaintiff to be a hard working man and "the main financial provider for the family". He observed him being very loving and caring towards the defendant, his mother and the other members of the family. 35Mr Sara gave unchallenged evidence of a conversation he had with the plaintiff in around 1985, in which the plaintiff informed him that the defendant wanted him to carry out some renovations to the Property. The plaintiff informed Mr Sara that the defendant had told him that, if he did this work and paid for it, "the house will be mine". The plaintiff informed Mr Sara that he was having some plans drawn up and that he would show them to him to see what he thought. He said that he hoped that it was not going to cost too much as he was going to have to pay for it all. 36Mr Sara recalled observing the extensive building works at the Property during 1986. He saw the plaintiff on site on a daily basis engaging in discussions with the builders, sometimes arriving at the house with materials sometimes loaded in his taxi. He recalled seeing the plaintiff physically helping the builder, carrying bricks, carrying sand, mixing cement and undertaking various labouring jobs. He also saw the plaintiff in discussions with the builder, walking around the Property pointing to various parts of the house, looking at plans with the builder and generally appearing to be responsible for and supervising the entire project. Mr Sara said that he observed the plaintiff working as a taxi driver seven days a week during the entire period of the building works. 37Mr Sara had a number of conversations with the defendant in which the defendant said on a number of occasions: "I am so proud of my son. Look at what Daher is doing for the family"; and "Daher is such a good boy. He really looks after the family and myself and my wife"; and "I feel sorry for Daher, he's working so hard, he's working seven days a week in a taxi and puts all his money into this house and towards the family". 38Mr Sara said that the plaintiff complained to him that the project was costing him "so much money" and it was a lot more than he thought it would be. He said that the plaintiff informed him that, when he fixed one thing, he discovered that something else needed to be fixed and it just kept costing him more and more money. The plaintiff also informed Mr Sara that he had to "borrow more money" because the project ended up costing more than he expected. He said that the plaintiff informed him that the renovations had cost him over $75,000 and that he owed so much money he was worried how he was going to pay it back. 39Mr Sara said that he did not see Jihad or Dany contribute to the building works or renovations. He recounted a number of conversations when both the defendant and the defendant's wife said how proud and happy they were that the plaintiff had completed the renovations and made the Property into a "beautiful home". Mr Sara claimed that, on one occasion, the defendant said to him "his mother and I are giving him the house for the renovations and all the support he has given us over the years". He claimed that the defendant's wife said "Nehmetallah and I have agreed to give this house to Daher for doing the renovations and for everything that he has done for us in the past" and that it was "only fair". Mr Sara said that the defendant's wife also said that the plaintiff deserved the house "for him and his future wife" and that "he should get married and bring his wife and raise his family in this home". 40Mr Sara accompanied the plaintiff on a couple of trips when he purchased some of the furniture for the Property. He saw him pay for that furniture. He also assisted the plaintiff by using his brother's truck to pick up some of the furniture and deliver it to the Property. Mr Sara claimed that the defendant's wife informed him that the plaintiff had bought a new television, air-conditioning unit, fridge and washing machine. The defendant's wife said that the plaintiff was a "wonderful son" and that they were "blessed to have him". Mr Sara also observed the declining health of the defendant's wife and the plaintiff's support and care for her. 41In 1992, when the plaintiff went overseas for a few months he left his taxi with Mr Sara and asked him whether he could drive it while he was away. Mr Sara said that the arrangement was that after he had taken out his normal commission he would pay the rest of the money into two accounts, one for the taxi loan and the other to pay off a debt that the plaintiff had over the house. Mr Sara claimed that, while the plaintiff was overseas, he drove the taxi in accordance with the arrangement and paid all surplus moneys into the two loan accounts as instructed. 42Mr Sara observed the plaintiff's wife providing extensive care to the defendant's wife. He also observed that during the previous ten years when the defendant had suffered health issues, the plaintiff and his wife provided ongoing care to the defendant. 43Mr Sara claimed that in the early years after the plaintiff was married, the defendant had a number of conversations with him in which he often said what a wonderful son the plaintiff had been to him and that the plaintiff had stayed with the defendant and his wife and worked hard to support them. He claimed that the defendant said that the plaintiff had done many kind and wonderful things for them and that he had put "so much money into this house". Mr Sara claimed that the defendant said: That is why I am giving him this house, and that way I know that he and his family can live here even after we die. 44The defendant suffered some injuries when he was involved in an accident while travelling on his electric cart. In around 2008 or early 2009 he received a compensation payout that Mr Sara said was approximately $140,000. Mr Sara accompanied the defendant to his solicitor's office for the settlement of that payment. Mr Sara claimed that it was shortly after this visit that the following conversation took place: Defendant: I am going to leave Daher in charge of everything, and I'm doing a will to make sure he gets at least 50%-60% of the house and all my cash. Mr Sara: But you've been saying for years that you have given the house to Daher already, because you did the deal with him about the renovations, he put all the money in, and because he's been looking after you and Nahema for years, I understood from what you've told me before that the house was already his. Nahema has told me many times that you've given the house to Daher for doing the renovations and looking after you. Defendant: Yes I know. But I've now been getting enormous pressure from Jihad and Dany to change my will and they insist on getting part of the house, and they threaten me that if I didn't change my will and give them a share of the house, that they would kill me. Mr Sara: Who told you this? Who threaten to kill you? Defendant: Jihad and his son Young Norm. They told me that if I didn't change my will they would kill me. I don't trust Jihad, and I'm worried that he might hurt me if I don't do as he asks. I just don't want Jihad or Young Norm near the house, and if I do this they hopefully will leave me alone. You know I don't trust Jihad and Young Norm, but also I'm worried what Jihad might do if I don't change my will. 45Mr Sara had made no mention in his affidavit of any conversation with either the defendant or the plaintiff in relation to the purchase price of the Property. However he gave the following evidence-in-chief (tr 88-89): Q. Mr Sara, I want to take you back to the mid 1980s at the time of the renovation works at [the Property]? A. Correct. Q. Did you have a conversation with Mr Estephan senior? A. Yes. Q. Which is not set out in your affidavit? A. Yes. Q. Can you tell her Honour please what was said, the substance of what was said in that conversation? A. In that conversation I believe Mr Nehmetallah he was, he asked me about his son borrowing some money to do the renovation which is the idea of his son, he told his dad and his dad agreed with him to sign the contract and borrow some money to do the renovation. Q. I want to ask you about another conversation and about the time, was there a conversation about how the property had been bought in 1976? A. Yeah, I remember Mr Nehmetallah told me, Mr Estephan Daher which he borrow, he paid his dad $4,000 through this mortgage of that house, when they bought the house. HER HONOUR: Q. I'm sorry, you will have to start that again, Mr Nehmetallah said what? A. Daher Estephan, that's his son, when Mr Nehmetallah he bought the house he contribute $4,000 to his dad buying the house in the beginning of it. Q. When did Mr Nehmetallah Estephan say this to you? A. The same, I can't remember exactly what day, that's the time when they decided to get the second loan. CONDON: Q. We know that the renovation works took place in about 1986? A. That's correct. Q. I want to ask you about when the conversation you last told her Honour about took place, was it before, during or after those renovation works? A. Before. Q. How long before? A. Oh, can't hardly recall, be so long. Q. What is your best estimate. A. My best estimate I believe I heard that it's way before renovation. 46Mr Lloyd cross-examined Mr Sara about this conversation and in particular the context in which it was said to have occurred. Mr Sara said that he always sat down with the defendant and they would chat about things (tr 89). He gave the following evidence (tr 89): Q. Dealing with this conversation about the purchase of the house, did Mr Nehmetallah say anything else to you about the way the purchase had been funded? A. Yeah, he did, told me even his daughter helped him out with $4,000 and his son, both contribute $4,000 each. 47Mr Sara agreed that he had helped the defendant with his compensation claim and that he had taken him to hospital and doctors. It was suggested to him that he had asked the defendant to pay him something for that assistance. He said that he just "took a thousand dollars" and that the defendant "throw me a thousand dollars as a compliment, as a help". He said he did not want it and he gave it back to him but then the defendant gave it back to him again (tr 91). When Mr Sara was cross-examined in relation to the conversation that he had recounted in his affidavit, outlined above, in which he claimed the defendant had alleged that Jihad and Dany had threatened to kill him, he gave the following evidence (tr 93): Q. Do you seriously tell her Honour that Mr Nehmetallah said to you in 2008 or early 2009 that his sons Jihad and Dany had threatened to kill him if he didn't change his will? A. No. Q. You don't say? A. I can't remember. Q. You agree that's what you have said that Mr Nehmetallah said to you in your affidavit, don't you? A. No I can't remember that. 48Mr Sara's attention was then drawn to that passage in his affidavit and he was further cross-examined (tr 93-94): Q. There is in your affidavit that you say that Mr Nehmetallah said the words that 'if I didn't change my will and give them a share of the house that they would kill me', that's what you say in your affidavit isn't it? A. I said that but I been putting in an enormous, this man, it had to be a story, it is a big story behind him. He tell me one day this, next day this, try to buy the three party and you know, somehow mention it to me and next time he change his mind. I was with him like a brother, you know, just put me in a position like, you know. 49It was not clear to me whether Mr Sara was suggesting that the conversation he had with the defendant that he had recounted in his affidavit had been the subject of a further conversation with the defendant at a later time in which the defendant suggested that such events did not happen. 50The plaintiff's sister, Clemence, moved out of the Property in 1980 when she married. In around the mid 1980s, she was living only a few houses away from the Property and observed the progress of the renovations on a daily basis. She saw the plaintiff working on almost a daily basis on the Property, helping builders and tradesmen, delivering materials to the site and appearing to organise everything to do with the renovation work. Her affidavit evidence was that the plaintiff would regularly come to her house to shower after working at the Property before he went to work as a taxi driver. 51During the renovation works, the defendant would constantly praise the plaintiff to Clemence, saying words such as: "Thank God for Daher. He is doing all of this himself. I don't know what we would do without him"; and "Daher is a wonderful son. I could never do anything like this. We are very lucky to have Daher"; and "Daher is building this house. He's had to borrow money and pay for everything himself"; and "I always want Daher to live with me. I need him to look after me. He always takes care of me". 52Clemence gave evidence that over the years since the renovation works had been completed, the defendant would often say to her "look at what Daher has done for us and this house. He deserves this house". Clemence would visit her parents at the Property approximately three times a week and sometimes as much as every day when her mother was not well. She claimed that she rarely saw Jihad or his son at the Property. She gave evidence of the tension between Jihad and the defendant, in particular when Jihad requested the defendant to give him the house and to give him money as he needed it. Clemence also gave evidence of her observations of the defendant being "scared" of Jihad. 53The plaintiff's wife, Noha Estephan, gave evidence that, before she married the plaintiff, he showed her some bank statements and said "here are some of the bank statements. You can see how much money I had to borrow to do all the work on the house". Noha said that, at the time of their wedding, she and the plaintiff received $26,000 and that the plaintiff spent it on "the house". 54After the plaintiff and Noha were married, Dany and his wife and their three children were also living in the Property. Noha had a conversation with the defendant in which she suggested that she and the plaintiff should move out because the Property was rather crowded. The defendant suggested that they "must stay" at the Property and she recalled the defendant saying: This is your house Daher, you are the one who did all the work on it, you are the one who spent all your money on it. Dany and his family can move out. They had a house beforehand and sold it so they can go and rent a house for themselves. This is your house, and you should not have to move out. 55Noha said that the defendant's wife agreed and within a week of that conversation Dany and his family moved out of the Property. She said that the defendant and his wife bonded closely with their children and had a good and loving relationship with them. She said that the home was a happy home throughout the years and she cared for her own children and the defendant and his wife. It was in about 2005 or 2006 that the defendant's wife moved into the aged care facility in which she still remains. Noha also gave evidence of the fracas that occurred in July 2010 that was obviously very distressing both for herself and her children. 56The plaintiff's sister, Lona Azzam, observed the plaintiff contributing significantly, both financially and around the home, during the period 1976 to 1985. She gave affidavit evidence that in the early 1980s, the plaintiff was the "primary earner and financial supporter of the household". She claimed that he would routinely pay for expenses relating to the household. He even gave her pocket money and she observed him giving money to the defendant and the defendant's wife from time to time. Mrs Azzam lived in the Property until 1985 when she married Elias Azzam. Prior to her marriage, Mrs Azzam had discussions with both the defendant and her mother in which the defendant said: "This house is going to Daher. This will always be his house". Her mother said "Your father and I are giving this house to Daher". 57Mrs Azzam also recalled conversations in late 1985 or early 1986 in which the defendant informed her that the plaintiff was going to renovate the house and obtain a loan to pay for the renovations. She claimed that the defendant said: I've made it clear to him that if he does these renovations, then we are definitely going to give him the house and he will live in it after we die. 58Mrs Azzam observed the plaintiff doing the renovations, helping the tradesmen, doing labouring work and purchasing and delivering materials to the house. She also observed him liaising with the various tradesmen and organising the works, assisting with the plans and generally supervising the project. She also observed that the plaintiff was still working very long hours as a taxi driver. Mrs Azzam also gave evidence of conversations with her father in which he informed her that Jihad and young Norm had been taking him to see lawyers because they wanted him to change his Will. 59In cross-examination, Mrs Azzam said that she believed that Jihad had been intimidating her father and making threats against him. She gave the following evidence in cross-examination (tr 49): Q. There was never any agreement that you were aware of for your father to transfer the family home into Daher's name, was there? A. No. Q. What you understood was that your father was going to leave Daher a greater share of the family home than the other children? A. That's correct, yes. 60Elias Azzam gave affidavit evidence of observing the plaintiff carrying out the renovation works in 1986. At about this time he had a conversation with the defendant, in which he claimed that the defendant said: We have asked Daher to renovate the house. We've told Daher that if he agrees to do these renovations, then the house is his. 61He also gave affidavit evidence that the defendant's wife said to him: This house is going to be Daher's. We have promised it to him for everything that he has done and for the building works he is going to do. It's only fair. The other two sons have their own homes. We want the house renovated, and that's why Nehmetallah told Daher that if he does the renovations the house is his. 62In cross-examination, Mr Azzam said that he observed that the plaintiff and the defendant had a very good relationship and that the plaintiff was the defendant's "prime carer" (tr 54). 63Jihad Estephan, the third eldest of the children, has five children and is presently retired. He is on a disability pension for arthritis (tr 154). In his affidavit sworn on 15 November 2011, Jihad said that he recalled assisting the defendant with renovations to the house, in particular with the demolition of the bricks. He claimed that he was at the Property "most days" during the renovations and that he saw the plaintiff supervising the workers on the site. He said that he recalled on many occasions seeing the defendant hand over cash to the plaintiff and then shortly thereafter the plaintiff paying the workers in cash. He claimed that the plaintiff's role in the renovation was to pay the workers and to interpret for his father. He said that the "rest of the family were also present during the renovations and we each looked over things". He said that he would "often attend" the house each day and if he was working, he would drop by after work. He gave the following evidence in his affidavit of 15 November 2011: 12. The renovations were funded by my father as I knew he had received money from his compensation payout of $30,000.00 as well as his superannuation entitlement in the sum of $16,000.00. I recall that the renovation did not cost in excess of $45,000.00. 64The defendant's affidavit was in similar terms. His affidavit of 14 July 2011 included the following: 27. In 1986, renovations were undertaken on the House. I paid for the costs from a compensation payout of $30,000. I also used an additional $16,000 which was a superannuation entitlement, as well as additional savings that I had from working. I gave about $30,000 to the Plaintiff to assist to pay for the renovations to the House. 65Jihad's evidence on this topic in cross-examination included the following (tr 146-147): Q. Was there a sum of $16,000 that he had available to him from some source to use for the renovation work? A. No idea. Q. You had no idea? Do you know what the word superannuation means? A. No. Q. If someone was to say to you superannuation entitlement would you know what this person was talking about? A. No. Q. To the best of your knowledge was there a pool of funds of $16,000 which went towards the renovation work? A. I don't understand the question. Q. Was there a source of funds amounting to $16,000 that was used to undertake the renovation work? A. I still don't get the question. Q. Does the figure $16,000 ring a bell in your mind in the context of the renovation work? A. I don't understand this question. Q. Does the figure of $16,000 have any significance to you in relation to the funding of the renovation work? A. Again I don't understand this. 66Jihad's attention was then drawn to the content of paragraph 12 of his affidavit and his evidence became even less satisfactory (tr 147-148): Q. Do you say that there was a sum of $16,000 paid or sourced from superannuation, is that true or not that statement? A. I didn't understand that question. HER HONOUR: Q. Mr Condon is asking you whether it is true to say, as you did, that the fund of $16,000 for the renovation came from your father's superannuation? A. That's right, yeah. CONDON: Q. You said to her Honour repeatedly in the last few minutes that you didn't know anything about a sum of $16,000 and you don't know anything about superannuation entitlement, is that statement in your affidavit true or false? A. Again, I don't get the question, I'm sorry. Q. Is what you said in your affidavit about the source of $16,000 correct or incorrect? A. What that's from, yeah, correct. Q. Who told you that information? A. Well, long time when he get paid my dad he mentioned that to us how much he get paid. Q. I want to suggest to you he didn't say that to you at all and you made up that figure of $16,000? A. Yep. Q. Do you agree or disagree with that proposition? A. I agree. Q. Mr Estephan I want to suggest to you that to your knowledge $16,000 was not sourced from superannuation entitlement and used to fund the renovations, do you agree or disagree with that proposition? A. I don't get the question I am sorry, I don't understand it. Q. In your affidavit you said that your father had a superannuation entitlement in the sum of $16,000? A. Not on the 16 th . Q. Is that proposition correct or incorrect? A. That's correct. Q. Why did you say to her Honour in the last few minutes that you had no idea about a figure of $16,000, are you making this evidence up? A. I didn't understand the question before. 67Jihad's claims in relation to the funding of the renovations were not supported by any clear recollection of conversations with the defendant in relation to the amount of money to be paid for the renovations or the source of those funds. 68There was a challenge to the plaintiff's credit in support of a submission that his version of the conversations with the defendant should not be accepted. The plaintiff's Tax Returns for the years ending 30 June 1999, 2000, 2001 and 2002 included a statement that his "main business activity" and "main business or professional activity" was "taxi driver". The plaintiff was cross-examined about an application he and Dany made to the Bank to refinance the St George loan, in which he stated that his "employer" was "F&S Smash Repairs" since "1/11/1999". In that same application, the plaintiff stated that his previous employment had been as a "self employed Taxi Driver" for "2 years". 69A letter dated 15 August 2000 on the letterhead of F&S Smash Repairs (the F&S letter) was provided to the Bank. The letter was signed by the plaintiff's brother-in-law, Mr Matar, who was described as the "Business Owner". Mr Matar certified that the plaintiff had been working "fulltime" for the business as a "Panel Beater" since November 1999. The letter described the plaintiff as a "good worker" and included the statement that he "gets paid $950.00 Gross per week". 70There is nothing in the plaintiff's Tax Returns suggesting that he worked as a Panel Beater or that he received approximately $50,000 per annum for his work in such employment. In cross-examination and before his attention was drawn to the F&S letter, the plaintiff suggested that he was "not the one who wrote" that his occupation was a Panel Beater. He sought to suggest that it was a "broker at the bank" who had written it (tr 67). He said that such a description was "incorrect" and that he never worked as a panel beater (tr 67). However he then gave the following further evidence in cross-examination (tr 67-72): Q. You were never employed by F&S Smash Repairs were you? A. I worked for maybe one or two months. Q. And it wasn't true that in August 2000 that your previous employment was a self-employed taxi driver, was it? A. Previous 2000? Q. It was not true that your previous employment in August 2000 was self-employed taxi driver? A. Oh, yes, for certain. Q. That was your current employment in August 2000? A. When you have own business, I am entitled to get someone to do the work for you. I'm entitled to work anywhere I like to. ... Q. You see next to 'second applicant income', there is gross paid, $4,116; do you see that? A. So. Q. Do you see this entry is for gross paid, $4116? A. Yes. Q. You agree that that is the entry next to the second applicant's income? A. I told you, I'm not the one who arranged that. A broker has done it. Q. If you go over to page 3 of this document please. Turn one page over, you see there is the word that I ask you about little while ago 'declaration', in the middle of the page? A. Hm Hm. Q. Just read that to yourself, if you would, and let me know when you have finished reading what's under 'declaration'? A. I don't know what the declaration mean. I never been bankrupt. Q. What is it about the words under 'declaration' that are causing you difficulty? A. According? Q. What is causing you a problem under the word 'declaration'? A. When I signed this, I got this from the bank. They never explained to me anything. They do whatever they want. What they ask, if you have previous loans and you have been paying on time, that is what is most important to them. Q. I want to suggest to you that you gave the bank information prior to this document being prepared, that you were working as a full-time panel beater, what do you say about that? A. I was working as panel beater for two or three years. I did it. Q. You told the bank that you were earning $4,116 a month by way of income? A. I'm not the one who arranged this. I told you, when I went to the bank there is a broker over there. You know what the broker mean? ... Q. The position is that when you signed this document that I have been asking you questions about, you knowingly gave false information to the National Australia Bank. A. I didn't give false information. Q. And you gave false information to the National Australia Bank in order to get yourself a financial advantage, that's right isn't it? A. I'm not the one who prepared the form. Somebody, like on my behalf prepared it, and maybe I signed something which I don't know I was signing on. Q. Do you know a man named Fadi Matar? A. Yes. I worked for them for a while. Q. Fadi Matar is your wife's brother, isn't he? A. Yes. Q. Would you turn please to page 132 of that white folder [the F&S letter]? A. Yes. Q. And if you would just read that letter and let me know when you have finished; have you finished? A. Yes. Q. You agree that the information in that letter is false? A. Is what? Q. The information in that letter is wrong? A. I work at that place, but I say not for - I worked there for a while. Q. When I asked you some questions a little while ago about what work you were doing in roundabout 2000/2001, you told her Honour that you were working as a taxi driver and doing some work at the farm, do you remember that? A. Yes, I remember. Q. You didn't mention anything about doing work as a panel beater in that period? A. Who remembers what I was doing. I mean, I can't remember, recall, all the jobs that I have done in the past. Q. Whatever the position, you didn't work for F&S Smash Repairs as a panel beater earning $950 gross per week from November 1999 to August 2000, did you? A. 1999, I work for a while, but I don't know for how long. I don't remember. Q. Do you know how this letter came to be prepared? A. How the letter came to be prepared? Q. Yes? A. I don't know. Maybe contacted by the bank or they prove if I have a job, or something, which back then I had that job, and I had the taxi and I had the farm. But I don't know which job I kept for long, because Q. Did you ask Fadi Matar to prepare that letter? A. I ask him, I said can you give me a reference, as a reference. Q. Did you ask him to prepare that letter? A. I did ask for a reference, yes. Q. And did you ask him to put the information in that letter that is contained in there? A. No, I don't ask him to write. I said I want a reference. But I didn't know what he write or what he was saying. 71The defendant made a number of claims in relation to how he funded the mortgage payments in respect of the Property. When he arrived in Australia in 1974 he was 45 years of age. He said that he worked during the period 1974 to 1976 and was able to save $10,000 for the deposit for the purchase of the Property. The defendant also purchased a property in Waratah Street, Marrickville in 1979 and sold it in 1984 for $73,000. The defendant claimed that he used those proceeds to pay for the renovations to the Property. There are no records to support the receipt of the sale proceeds nor the use of the sale proceeds on the renovations. Mr Azzam claimed that the defendant informed him that he intended to use the proceeds of the sale of the Waratah Street property to buy land in Lebanon (tr 55). Indeed Jihad gave evidence that some of the sale proceeds of the Waratah Street property were used to buy property in Lebanon, but the exact amount was unclear (tr 143, 145-146). 72The defendant submitted that the plaintiff's version of the funding of the renovations should not be accepted. In particular, it was submitted that the plaintiff's claim that the Bank's documents annexed to his affidavit for a loan of $57,500 could not have related to the renovations. The plaintiff agreed in cross-examination that the defendant had guaranteed a loan to purchase a taxi that was "in the 40's" (tr 31). The defendant submitted that the document annexed to the plaintiff's affidavit was in relation to a refinance of the earlier loan for the purchase of the taxi and did not relate to the renovation. 73The defendant submitted that the burden of repayments for the earlier and the refinanced loan would have been greater than the plaintiff could have serviced, having regard to the income disclosed in his Tax Returns of $6,818 in the year 1986/1987. It was submitted that the plaintiff did not borrow the money to finish the renovations in December 1986, nor did he take out the loan in reliance upon the defendant's promises that he would receive the Property. It was also submitted that he did not use the funds to assist in paying for the renovations. 74It is true that the paucity of documents in relation to both parties' claims in relation to the funding of the renovations creates difficulties for their respective cases. However the fact that the loan may have been a refinance of an earlier loan does not mean that the plaintiff did not fund the renovations. The absence of supporting documents needs to be viewed in light of the fact that the Property was purchased 35 years ago and the renovations were completed 25 years ago. It is also necessary to have regard to the plaintiff's unchallenged claim that he has been unable to return to the Property to search for any further documents that may have been available to him in his records kept at the Property. It is also necessary to view the absence of supporting documents in light of the fact that these parties were living together in the Property harmoniously and co-operatively for a period of approximately 30 years, in circumstances in which it would not have been reasonably contemplated that it would be necessary to have documentary proof 26 years later of conversations alleged to have occurred within the family. 75Mr Condon referred to the following passage of Hodgson JA's judgment (with which Beazley JA agreed; Davies A-JA giving his own reasons) in Ho v Powell (2001) 51 NSWLR 572 at 576: 14. There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson: "The Scales of Justice: Probability and Proof in Legal Fact Finding"). 15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 9 8 ER 969 at 970:) "...[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". See also Azzopardi v The Queen (2000) 75 ALJ 931 at 935 [10]; 179 ALR 349 at 353 [10]. 16 The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case: cf. Commercial Union Insurance Co of Australia Ltd v Ferrcom Pty. Limited (1991) 22 NSWLR 389. 76Davies A-JA referred to the "rule" in Jones v Dunkel as permitting "evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so" (at [76]). 77The following observations made by McLelland CJ in Eq in Watson v Foxman (1987) 49 NSWLR 315 at 319, although relating to a claim under the Trade Practices Act 1974 (Cth) and/or under the Fair Trading Act 1987, are apt to the circumstances of the present case: Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All of this is a matter of ordinary human experience. 78The relationship between the plaintiff and the defendant during the period 1982 to 2010 was obviously very close. This is in part evidenced by the fact that the defendant granted a Power of Attorney to the plaintiff to sell his properties in Lebanon. It is the sale of these properties that caused the fracture within the family, with Jihad alleging that the plaintiff had not fully accounted for the sale proceeds. The evidence does not establish that the plaintiff failed to account in respect of the sale of the properties in Lebanon. It is accepted that the plaintiff provided each of his siblings (at the direction of the defendant) a share of the proceeds of sale of the land in Lebanon. It is apparent that Dany went to Lebanon to assess what land remained to be sold and this seems to have triggered Jihad's concern. It has not been established that the plaintiff misconducted himself or that he acted inconsistently with the trust placed in him by the defendant in respect of the property transactions that took place in Lebanon. 79The evidence of the plaintiff and the defendant is diametrically opposed. The evidence given by the plaintiff's sister and brother-in-law, Mr and Mrs Azzam, was impressive. Mrs Azzam did not overstate what she observed and I accept her evidence in relation to her visitations upon, and conversations with, her parents and her observations of the plaintiff during the renovations. I also accept that Clemence did her best to recollect what she observed during the relevant period. I have some reservations about Clemence's recollection in relation to the contribution that she made towards the purchase of the Property. Clemence was only 17 years of age at the time and it seems to me that it would have been very difficult for her to save $4,000 in such a short space of time working as a machinist. However I accept her evidence that whatever money she was able to save from her salary was given to her mother to assist in the purchase of the Property. 80Mr Sara's evidence in relation to the conversation with the defendant about the change to his Will was unsatisfactory. However the overwhelming weight of the evidence of Clemence, Mr and Mrs Azzam and Mr Sara leads me to the conclusion that the defendant and his wife informed each of them that they had decided to give the Property to the plaintiff because he had funded and caused the renovations to be completed and because he had cared for them. 81The attack on the plaintiff's credit in relation to what appears to be an obviously inaccurate (to use a neutral term) letter in respect of his employment as a Panel Beater means that I should be cautious in accepting his evidence without other supporting evidence. However the impressive evidence of Mr and Mrs Azzam in particular combined with the evidence of Clemence and Mr Sara, is supportive of the plaintiff's evidence. 82I prefer the plaintiff's evidence to that of the defendant and Jihad. On balance, I am satisfied that the defendant promised the plaintiff that if he funded and carried out the renovations to the Property, it would "be his". I am also satisfied that it was the intention of the plaintiff and the defendant that when the plaintiff married, he and his wife (and children) would live in the Property with the defendant and his wife. I am also satisfied that it was the parties common understanding that the Property would be transferred to the plaintiff on the defendant's demise. I am satisfied that the plaintiff funded the renovations and caused them to be completed. It is not possible to assess with precision the amount that the plaintiff spent on the renovations over the two years but it is probable having regard to Mr Sara's unchallenged evidence that it was approximately $75,000 obtained in part by way of loan from the Bank. 83Although the plaintiff had originally pleaded that the promise was that the Property would become his "when he married", I fully understand the reason why the case for the plaintiff was adjusted on the first day of the trial. The evidence does not support such a case. Rather the evidence of the plaintiff and each of the witnesses, other than the defendant and Jihad, supports the conclusion that the plaintiff would become the owner of the Property after the defendant died. This comes in part from the evidence of Mr Azzam that the defendant was concerned that the plaintiff would live in the Property "even after we die". 84Although the plaintiff was not cross-examined about the abandonment of this part of his case, the defendant submitted that the claim that had originally been made that the Property was to become his "when he married" was "most implausible". The defendant submitted that if such a promise had been made the plaintiff would have raised it with the defendant upon his marriage in 1996 or when he and Dany were purchasing the Farm in 1997. There is no issue that this was not done. It was also submitted that if that promise had been made the plaintiff would have raised it when he was taking out the various loans with the Bank. This was not done. 85Although the claim was pleaded, the plaintiff's affidavits did not include any evidence to that effect. Rather the conversations to which the plaintiff deposed (referred to earlier) did not contain a date upon which the Property would be put in his name. On balance I did not view the abandonment of this aspect of the plaintiff's claim as decisively adverse to the plaintiff's credit. The case in contract 86The plaintiff's case in contract is that the plaintiff and the defendant agreed that, in consideration of the plaintiff funding and causing the renovations to the Property to be completed, the defendant would transfer the Property to the plaintiff. I am satisfied that the plaintiff funded the renovations of the Property. I am also satisfied that the plaintiff caused the renovations to be completed. The plaintiff seeks an order for specific performance and the appointment of a trustee for the sale of the Property. 87When the plaintiff abandoned his claim that the Property was to be transferred to him when he married, there was then no express term as to when the Property would be transferred to the plaintiff. The terms of arrangement between the plaintiff and the defendant were that: (1) the plaintiff would fund and cause the renovations to be completed; (2) the plaintiff would continue living in the Property with the defendant and his wife; (3) when the plaintiff married he and his wife (and children) were to continue living in the Property with the defendant and his wife; (4) the plaintiff would continue to care for his parents. There was no discussion about what may happen should the plaintiff and his wife wish to leave the Property and live elsewhere, nor was there any discussion as to what may happen, as has happened, if the defendant's wife was to move into an aged care facility. There was no discussion or agreement as to what may happen, should the defendant move into an aged care facility. The parties did not contemplate what was to occur if their relationship soured. There was no discussion as to the date upon which the defendant would transfer the Property to the plaintiff. The irresistible conclusion to be drawn from the discussions is that the defendant had the intention of living in the Property for the remainder of his life. 88Mr Condon submitted that, notwithstanding the abandonment of the term that the defendant had promised to transfer the Property to the plaintiff upon the plaintiff marrying, it would be appropriate to imply a term into the contract that the defendant would transfer the Property to the plaintiff within "a reasonable time". The law in relation to the implication of terms into a contract is well settled: Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337. I am not satisfied that such a term is so obvious that it goes without saying, particularly in light of the fact that the defendant and his wife were to live in the Property with the plaintiff and his family. In the circumstances, where so much was left unsaid in respect of the future living arrangements for the plaintiff and his family and the defendant and his wife, I am not satisfied that it is appropriate to imply a term that the defendant would transfer the Property to the plaintiff within "a reasonable time". As I have said earlier I am satisfied that the common understanding of the parties was that the Property would be transferred to the plaintiff on the death of the defendant. 89There is the additional problem that there is nothing in writing evidencing the alleged contract: s 54A Conveyancing Act 1919. Indeed the defendant submitted that the only "writing" evidencing the defendant's intention during the relevant period was his earlier Will pursuant to which the plaintiff was to have but a shared interest in the Property with his male siblings. 90I am not satisfied that the plaintiff has made out his case in contract. Estoppel 91The plaintiff claims that the defendant is estopped from denying the plaintiff's entitlement to the ownership of the Property. The proprietary estoppel claimed is an estoppel by encouragement, defined by Handley AJA (with whom Allsop P and Giles JA agreed) in Delaforce v Simpson-Cook [2010] NSWCA 84 at [21] as follows: Such an estoppel comes into existence when an owner of a property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. 92On the topic of "detriment" Handley AJA said at [42]: The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. 93Handley AJA referred to the explanation given by Dixon J (referred to by his Honour as the "Dixon principle") in Grundt v Great Boulder Proprietary Gold Mines Ltd [1938] HCA 58; 59 CLR 641 at 674 in relation to the "basal purpose of the doctrine" (that applies to promissory estoppel and estoppel by encouragement) including: That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation on the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. 94The defendant promised the plaintiff that, if he funded and caused the renovations to the Property to be completed, he would become the owner of the Property. The fact that the plaintiff has not proved his case in contract is not an impediment to the establishment of a proprietary estoppel: Evans v Evans [2011] NSWCA 92 at [121] per Campbell JA, with whom Giles JA and Sackville AJA agreed. Although there was no express statement as to when the Property would be transferred to the plaintiff, I am satisfied that the promise was made on the mutual understanding that the defendant and his wife would be entitled to remain living in the Property with the plaintiff and, when he married, with the plaintiff's wife and his children and that the Property would be transferred to the plaintiff on the defendant's death. As the defendant said, it was his intention that the plaintiff would continue living in the Property "even after we die". Although the defendant used the expression "we", he is the sole registered proprietor of the Property. 95I am satisfied that from 1985 to 2010 the plaintiff remained in the Property, caring for his parents physically, emotionally and financially and funding not only the renovations but the operation of the household, encouraged by the defendant's promise that the Property would be his. It is not surprising that there was no request by the plaintiff for the defendant to transfer the Property into his name. The parties enjoyed an harmonious and co-operative relationship for many years and I have no doubt that the plaintiff trusted the defendant to comply with his promise. The absence of any request to transfer the Property is also consistent with the parties' understanding that it would not pass to the plaintiff until the defendant's death. 96Although there is no express statement relied upon by the plaintiff that the defendant said that he would leave the Property to the plaintiff in his Will (but rather the statement in broad terms that the Property would be his), the shared occupancy of the Property and the obvious financial and emotional support provided by the plaintiff and his wife to the defendant and his wife fits appropriately within the following statement made by Robert Walker LJ in Gillett v Holt [2001] Ch 210 at 227-8: ... the inherent revocability of testamentary dispositions (even if well understood by the parties ... ) is irrelevant to a promise or assurance that 'all this will be yours' ... Even when the promise or assurance is in terms linked to the making of will ... the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise. 97The plaintiff changed his position when he put all his energies and earnings into the renovations of the Property and thereafter continued to reside in the Property, funding the operation of the household and supporting his parents both financially and emotionally. It is true that the plaintiff did not have to pay rent to the defendant however the expenditure made by the plaintiff over the years in funding the operation of the household and caring for his parents renders this lack of payment of rent as a neutral factor in the consideration of this aspect of the matter. 98The plaintiff funded the renovations to the Property in 1985-1987 and transformed it in the manner earlier described. The plaintiff remained in the Property rather than seeking entry into the property market for himself and his family, on the understanding that the Property would be his. In considering the appropriate remedy it is important to recognise that the principle of proportionality is a "negative one" in that "the enforcement of the expectation must not be disproportionate": Delaforce v Simpson-Cook per Handley AJA at [77]. In my view it would not be disproportionate for the plaintiff's expectation to be enforced. Indeed I am satisfied that in the circumstances described above it would be unconscionable not to enforce the plaintiff's expectation. 99The context of the promise was that the defendant and his wife would continue to live with the plaintiff (and when he married, with his wife and family) in the Property and that the plaintiff (and his wife) would continue to care for his parents. Neither the fact that the plaintiff's mother has moved into an aged care facility, nor the possibility or any prospect of the defendant also moving into such a facility, detracts from the plaintiff's entitlement to have his expectation fulfilled. There were no submissions that adverse vicissitudes affected the enforceability of an estoppel by encouragement: Delaforce v Simpson-Cook per Handley AJA at [79]. 100I am satisfied that the reason the relationship between the plaintiff and the defendant deteriorated was directly related to Jihad's desire to obtain an interest in the Property. It is a sad consequence that such a loving relationship has soured. I have no doubt that but for Jihad's intervention, the plaintiff and his wife would have continued to care for the defendant while they lived together in the Property. 101I am satisfied that the plaintiff has established a proprietary estoppel claim against the defendant. The defendant is estopped from denying that the plaintiff is entitled to ownership of the Property on his demise. Trust 102The plaintiff also makes a claim for a declaration that the defendant holds the Property on trust for him. 103As I have said, the relationship between the plaintiff and the defendant involved co-occupancy of the Property, with the plaintiff and his wife providing financial, physical and emotional support to the defendant and his wife (until she moved into the aged care facility). I am satisfied that the funding of the renovations by the plaintiff and the provision of support for his parents over 25 years was provided on the basis of trust in the defendant that he would honour his promise that he would transfer the Property to the plaintiff. I am satisfied that, notwithstanding the breakdown in the relationship between the plaintiff and the defendant, it would be unconscionable for the defendant to deny the plaintiff's entitlement to ownership of the Property: Malsbury v Malsbury [1982] 1 NSWLR 226 at 230-231. 104In Morris v Morris [1982] 1 NSWLR 61 (a case relied upon by the defendant in support of a submission that justice may result in a plaintiff not necessarily receiving that which was expected at the time of the relevant expenditure) McLelland J (as his Honour then was) referred at 64 to the "flexible" principle in Chalmers v Pardoe [1963] 1 WLR 677 illustrated in the following extract at 681-682: There can be no doubt upon the authorities that where an owner of land has invited or expressly encouraged another to expend money upon part of his land upon the face of an assurance or promise that that part of the land will be made over to the person so expending his money, a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expanded the money is entitled to an equitable charge or lien for the amount so expended ... It was said in Plimmer v Wellington Corporation (1884) 9 App. Cas. 699, 714 P.C. that the court must look at the circumstances in each case to decide in what way the equity can be satisfied. 105McLelland J said at 64: In the present case the assurance or promise to the plaintiff of an indefinite right of residence in the defendants' property is the operative equivalent of the assurance or promise to make over part of the land referred to in the extract from Chalmers v Pardoe. The remedies to which the principle gives rise are imposed, as is a constructive trust, in order to satisfy the demands of justice and good conscience. Indeed in some circumstances the appropriate remedy may well be the imposition of a constructive trust. 106In the present case the parties were in such an harmonious relationship that they did not give consideration to what was to happen if their relationship broke down. This is not dissimilar to what occurred in Morris v Morris. In that case, the plaintiff (the father of the defendant) sold his home unit and used the proceeds of sale to fund an extension of the defendant's house on the basis that the plaintiff would then live with the defendant and his wife and become part of their family unit. The relationship soured without the parties contemplating or discussing what was to occur in those circumstances. The question for determination in those proceedings was whether the plaintiff was entitled to a proprietary interest in the defendant's property. McLelland J did not impose a constructive trust, concluding rather that the plaintiff's equity would be satisfied by having an equitable charge over the subject property in a sum reflective of the amount expended by the plaintiff on the extensions to the property. 107The present case is different. The plaintiff was encouraged in the expectation that, if he expended money on the renovations and remained living with the defendant and his wife (and caring for them), the ownership of the Property would pass to him. 108It is important to consider all the circumstances of the case in deciding on the appropriate relief. At this stage, the defendant wishes to live in the Property with appropriate support and care. Although there was a glimmer of hope during the trial that the defendant may reconcile with the plaintiff and his family, it appears that this may now not be possible. I am satisfied that the only way to ensure justice in the present case is to enforce the plaintiff's expectation encouraged by the defendant by a declaration that the defendant holds the Property on trust for the plaintiff during the defendant's lifetime. The plaintiff is entitled to a declaration that the Property is to be transferred into the plaintiff's name on the defendant's death. The parties might reach agreement on a sensible mechanism for that to occur. However in the present litigious environment the plaintiff may see fit to protect his interest by the lodgement of a caveat over the Property. Conclusion 109The plaintiff's claim in contract is to be dismissed. The defendant is estopped from denying that the plaintiff is entitled to ownership of the Property on the defendant's demise. A declaration is to be made that the defendant holds the Property on trust for the plaintiff during his life. A further declaration is to be made that the Property is to be transferred to the plaintiff on the defendant's demise. 110The parties are to bring in Short Minutes of Order reflecting this outcome together with an agreed costs order. If the parties are unable to reach agreement on costs, I will hear argument when the matter is listed for the filing of Short Minutes of Order at 10 am on 16 February 2012.