Hildebrandt v Papakonstantinou

Supreme Court of NSW|2024-08-21|Before: Williams J

Solicitors: Jenkins Legal Services (Plaintiffs) Maria Mak (First and Second Defendants) PBL Law Group (Third Defendant) File Number(s): 2023/107545 Publication restriction: N/A

Introduction

The plaintiffs in these proceedings invoke the doctrine of proprietary estoppel in claiming relief in terms that would confer on them an immediate entitlement to an interest in the fee simple estate in real property owned by the first plaintiff's mother, as tenants in common with the first plaintiff's brother, in proportions to be determined at some future time.
In the event that the plaintiffs' proprietary estoppel claim fails, the first plaintiff seeks a family provision order in respect of the estate of her late father who, during his lifetime, owned the property in question with the first plaintiff's mother as joint tenants. His interest in the property passed to the first plaintiff's mother as the surviving joint tenant upon his death in June 2023.
For the reasons that follow, both the proprietary estoppel claim and the family provision claim must be dismissed.

The parties

The parties to these proceedings are family members.
The second defendant, Mrs Markela Papakonstantinou, is the mother of the first plaintiff, Mrs Georgina Hildebrandt (also known as Gina), and the third defendant, Mr Arthur Papakonstantinou.
Mrs Papakonstantinou's late husband Mr Hrisoulis Papakonstantinou (also known as Charlie) was the first defendant to these proceedings when they were commenced on 3 April 2023. Sadly, Mr Hrisoulis Papakonstantinou passed away on 14 June 2023. Upon his death, his interest in the property that is the subject of these proceedings passed to Mrs Papakonstantinou as the surviving joint tenant.
Mrs Papakonstantinou represents the estate of Mr Hrisoulis Papakonstantinou in these proceedings pursuant to a representative order made by the Court on 17 November 2023.
The second plaintiff, Mr Kit Hildebrandt, is the husband of Mrs Gina Hildebrandt.
Throughout the proceedings, including in their affidavits, the parties have adopted the convention of referring to one another by their first names. I adopt the same convention in these reasons. No disrespect is intended.

Salient facts

The proceedings concern a rural property at [REDACTED] Niclins Road, Mangrove Mountain, New South Wales 2250, purchased by Hrisoulis and Markela in about 1970. [1]
Gina was born in March 1960 and Arthur was born in September 1963. They were about ten and seven years of age, respectively, when they moved to the property together with their parents in 1970.
Hrisoulis and Markela made their living by growing fruit and vegetables and, later, raising chickens, on the property.
Gina's unchallenged evidence is that, from as early as she can remember after the family moved to the property in 1970, both of her parents, speaking to her in the Greek language, said to her words to the effect that "1/2 of the Farm is yours and 1/2 of the Farm is Arthur's", and "The top 1/2 of the Farm is Arthur's. The bottom 1/2 of the Farm is yours", and "The top end of the Farm is Arthur's. The bottom end of the Farm is yours", and "It's 50/50". Hrisoulis and Markela said words to that effect to Gina many times over the years while she was living at the farm during the 1970s.
In cross-examination, Gina gave evidence that it was always her understanding that the "bottom half" or "bottom end" and "top half" or "top end" of the property referred to by her parents corresponded with those parts of the property that were subsequently depicted as "Gina's lot" and "Arthur's lot" (respectively) in the plan shown at [72] below which was annexed to a Deed of Family Arrangement signed in April 2009, and which is also annexed to Markela's will made on 5 September 2023.
Gina also gave evidence in cross-examination that, from the time she was a young girl, she always understood her parents' statements to mean that the bottom half of the property would be hers one day, through inheritance. She understood that the property would be divided between her and Arthur after both of her parents died.
After Gina graduated from high school in 1978, she helped her parents with the work required to run the farm, and took on primary responsibility for the domestic duties in the household while Markela worked alongside Hrisoulis on the farm.
In October 1979, Gina moved away from the property and took up full time employment elsewhere after marrying her first husband at the age of 19. That marriage did not last, and Gina returned to the property in 1980, before moving to Sydney in 1981 where she lived until about late 1983 or early 1984.
Gina lived at the property for a further period from late 1983 or early 1984, during which she worked as a beautician at a salon in Gosford and for private clients who came to the property, and also assisted her parents with the farm work and domestic duties.
In 1984, Gina travelled to Canada to visit relatives. It was during that trip that she met her husband, Kit, whom she married in Canada in May 1985.
Gina and Kit lived in Canada after their marriage, where they both worked full-time. They purchased a three bedroom home in Saskatoon in 1987, and had their first child, Christopher, in December 1987. Their second child, Andrew, was born in March 1990.
Gina and Kit felt settled and content with their life in Canada. They were working to pay off the mortgage on their home, and raising their two sons with the support of Kit's parents and Gina's relatives in Canada with whom they felt very close.
Gina's unchallenged evidence is that, from about May 1986, Markela was encouraging her to move back to Australia with Kit, and with their two children after they were born in December 1987 and March 1990. During these conversations, Markela said to Gina words to the effect: "You should come back home. You'd be better off here. You could work on the Farm. 1/2 of it is yours anyway".
It appears that Markela expressed similar sentiments to Gina's aunt, Thea Niki, who lived in Canada. Gina gave evidence that she recalls Thea Niki saying to her in the years after May 1986 that Markela kept telephoning Thea Niki and saying "Gina needs to come home" and that "Their life would be better in Australia. 1/2 of the Farm would be theirs".
Gina and Christopher visited Hrisoulis and Markela and stayed with them on the property in November 1988. Kit joined them just before Christmas in 1988. The family stayed with Hrisoulis and Markela throughout January 1989, returning to Canada in early February 1989.
Gina gave evidence that, during that visit, Hrisoulis and Markela, and particularly Markela, urged Gina and Kit to live in Australia in order to be closer to them. On several occasions during those conversations, Hrisoulis and Markela said to Gina and Kit words to the effect: "Come back to the Farm. It's 1/2 yours" and "Come back here. You would be so much better off. The bottom 1/2 of the property is yours". Kit did not give evidence of any such conversations during their visit to Australia in December 1988 and January 1989.
Gina gave evidence that her parents continued to urge her to return to Australia to live with Kit and her children after their son, Andrew, was born in March 1990, saying to her words to the effect: "Come back to the Farm. We miss you. We can all be together. Kit can work on the Farm. 1/2 of it is yours anyway".
Gina also gave evidence that Thea Niki told her during this period that Markela wanted her to move back to Australia, and that "She wants to be close to you and your kids. She says you & Kit will get 1/2 of the Farm".
In cross-examination, Gina agreed that, when Thea Nikki told her what Markela had said, it was consistent with Gina's long-held understanding and expectation that she would receive the southern part of the property at some time in the future under the wills of her parents. Gina also gave evidence that this understanding and expectation on her part has never changed subsequently.
Gina gave evidence that, after a while, she and Kit began considering moving back to Australia to live on the farm. Kit was initially more open to the idea of moving than Gina, who was happy and content with her life in Canada and considered herself settled there.
During her telephone conversations with Hrisoulis and Markela, they continued to say to Gina words to the effect: "Come back to Australia. Come back to the Farm. I want to see my grandchildren. We can all live close together. Kit can work on the Farm. 1/2 of it is yours".
During one particular telephone conversation with her parents during this period after the birth of Andrew, Markela said to Gina words to the effect: "Come back to the Farm. You & Kit can both work on it. 1/2 of it will be yours and Kit's. Your father and I will sponsor Kit's visa so he can work on the Farm".
Gina and Kit ultimately decided to move to Australia, arriving in July 1991.
In her affidavit sworn on 3 April 2023, Gina gave evidence that: "In early 1991, because my parents had told me to come back to the Farm, because it was half mine, Kit and I decided to move to Australia and we sold our home in Canada."
In her affidavit sworn on 2 July 2024, Gina gave evidence that: "On the basis of all that Mum & Dad had said (over many years) about 1/2 of the Farm being mine (or mine & Kit's) … I understood, assumed and expected that, if Kit & I gave up our life in Canada, moved to Australia, and lived and worked on the Farm (with Mum & Dad), 1/2 of the Farm would be mine & Kit's. I also gave up my life in Canada, moved to Australia, and thereafter lived and worked on the Farm (with Mum & Dad) on the basis that this would occur. If I had not believed this would occur, I would not have given up my life in Canada."
It is clear from Gina's evidence in cross-examination, to which I have referred at [28] above and at [51]-[52] below that Gina did not understand, assume or expect that half of the property would be hers, or hers and Kit's, except by way of inheritance after the death of both of her parents.
Kit gave evidence that, during the period after he and Gina were married until 1991 when they made the decision to move to Australia, Gina spoke to her parents on the telephone regularly. After those conversations, Gina would say to him words to the effect: "Mum and Dad asked that we move back to Australia to live with them at their farm".
Kit gave evidence that he recalled one telephone conversation with Hrisoulis and Markela in early 1991 in which he and Gina were both on the call. Kit gave evidence that Hrisoulis and Markela said to them during that conversation: "Come back to Australia, we want to see our grandchildren grow up. Live with us on the farm and you can work on it. It will be yours". Kit gave evidence that Hrisoulis or Markela also said to him during that call that they could sponsor his visa if he moved to Australia to live them and work on the farm.
In his affidavit sworn on 3 April 2023, Kit deposed that (emphasis added): "In early 1991, following that telephone call, Gina and I had a discussion about whether we should move to Australia and live with her parents on the farm. On the basis of Hrisoulis and Markela saying that we would be able to live on the farm and one day would have ownership of the farm, I decided that we should move to Australia and live on the farm. …"
In cross-examination, Kit gave evidence that his understanding and expectation in 1991 was that the southern part of the farm would be given to him and to Gina at some stage in the future if they moved to Australia and lived on the farm.
When they returned to Australia in July 1991, Gina, Kit, Christopher and Andrew moved into Hrisoulis and Markela's three bedroom home which was located on the northern part of the property. Arthur had moved out some years earlier in about 1982. In 1991, Arthur was living in Port Kembla and working in a fruit shop business in Figtree, a suburb of Wollongong.
In 1994, Gina and Kit, together with their sons Christopher and Andrew and their daughter Kayla who had been born in August 1991, moved out of Hrisoulis and Markela's three bedroom home to live in some demountable buildings that they had converted to residences on the southern part of the property. Gina and Kit refer to these demountable buildings as "dongas". Before making this move, Gina and Kit had considered moving to live in Sydney, where Kit was working most of the week. Gina's unchallenged evidence is that, when she told Markela that they were planning to move to Sydney, Markela replied with words to the effect: "Please don't. You should both stay here. The back of the Farm is yours. Build your house on the bottom 1/2 of the Farm".
Kit gave evidence that he had a discussion with Gina, Hrisoulis and Markela in 1994 during which Gina said that they would like to get their own place, and Markela said: "The farm is yours. Stay". Kit then asked if they could build another home on the farm, and Hrisoulis said: "Yes. Yes, move into the back end of the farm". Markela said: "Yes, the back of the farm is Gina's". Kit deposed that, based on that discussion, he and Gina decided that they would build another home on the property.
Gina, Kit and their children lived in the dongas on the southern part of the property for about seven years between 1994 and 2001. During that period, they carried out the work necessary to make the dongas liveable and connected them to electricity, they cleared the areas surrounding the dongas, constructed a driveway and landscaping, and built a large shed on the southern part of the property.
In August 2001, Gina and Kit were in a financial position to build their own home on the southern part of the property.
Gina gave evidence that she and Kit had discussed this with her parents from time to time during the period after 1994, and that Hrisoulis and Markela had always said words to the effect of: "Of course, build what you want. It's yours".
Gina and Kit borrowed approximately $250,000 from the Commonwealth Bank to fund the construction of their home on the southern part of the property. That loan was guaranteed by Hrisoulis and Markela, who granted a mortgage in favour of the Commonwealth Bank to secure their obligations under the guarantee.
There is no dispute that Gina and Kit have made, and are continuing to make, all repayments under their home loan, which was subsequently refinanced with National Australia Bank in 2015.
The home that Gina and Kit built on the southern part of the property is a five bedroom, two bathroom residence with a three car garage.
At the same time as building their new home, Gina and Kit installed a sewage management facility, water tank, and telephone line. They moved into their new home when it was substantially completed in February 2002.
At some time after moving to the southern part of the property in 1994, Gina and Kit planted some crops there, including some navel orange trees.
As I have mentioned at [14]-[15] and [28] above, Gina gave evidence in cross-examination that she always understood, expected, and assumed that she would receive the southern half of the property at some time in the future under the wills of her parents, and not earlier. In cross-examination, Gina confirmed that this was her understanding, expectation and assumption when she and Kit built their house and made other improvements to the southern half of the farm: "Q. Her Honour should understand that in relation to all the decisions that you and Kit have made in relation to developing the southern part of the farm, building your lovely house-- A. Mm-hmm. Q. --which we see in some photographs that you would have seen that were handed up to her Honour yesterday, building all the sheds, creating the lovely gardens and so on. That was all done simply on the basis that at some point in the future when your parents passed away you would receive the benefit of all of that under their will. Correct? A. That was the assumption. Absolutely."
Gina gave further evidence in cross-examination confirming that this was her understanding, although she had not discussed her parents wills with them: "A. … I've just always assumed and always understood - mum and dad aren't - we, we, we didn't do things like that. I wasn't privy to a lot of things. "You live down there. You do what you've got to do. Arthur and Flo are up there". Great. Granted. That's, that's fine. We never sat down and went, "You know what? The will's going to be", no. I always understood, and I've always, like, "When mum goes, you know, one day then it, it's going to be yours". Yes, okay. I get it. I understand. Q. Just so that we're clear‑‑ A. But, and, but I also understood that that, of course, that's in their will. Q. But, the delivery of the promise for the southern half of the farm, to your understanding, was always by their wills. Correct? A. Always by their wills, unless we could get it subdivided beforehand, have a transfer, I - you know. Q. If things turned out differently with the subdivision and if the subdivision was granted so that you would have your own lot on Gina's Lot and Arthur, similarly, would have his own lot on Arthur's Lot. There was then, potentially, an opportunity to have each of those separate lots transferred to you and Arthur. Correct? A. Yes. Q. But, you never discussed that with your parents either, did you? A. Well, not in - no, I don't recall. No. Q. May her Honour understand that if there was to be such a transfer, after the separate titles to each of those lots had been created on a subdivision, then you would have received everything within the boundary of the new lot on the southern part? A. To, yes, to my understanding. Q. And you would have no interest in and no share in anything to do with the lot over the boundary‑‑ A. Absolutely. Q. --on Arthur's Lot? A. That's right. Q. That's right? A. That's right. Q. That's been your understanding always? A. Yes."
Kit gave evidence in cross-examination that, when he and Gina built their house in 2001 he understood that the southern part of the property was in the name of Hrisoulis and Markela, but that it would be given to him and Gina at some stage in the future. Kit acknowledged that it was a possibility that this gift would occur under the wills of Hrisoulis and Markela, but said that his parents-in-law had not discussed their wills with him.
In his affidavit sworn on 3 April 2023, Kit gave evidence that on various occasions from 2001 onwards, Hrisoulis and Markela said to him words to the effect: "The farm is yours. The bottom half is Gina's, that is your half. The other half is Arthur's".
It is common ground that the southern part of the property occupied by Gina and Kit and their family since about 1994, including the land on which they built their home in 2001, is the area depicted as "Gina's Lot" on the 2009 plan referred to at [14] above and reproduced at [72] below. As will be apparent from all of the evidence referred to above, the parties use the terms "southern part", "southern half", "bottom half", "bottom part" and "bottom end" interchangeably to describe that area. The "northern part", "northern half", "top part", "top end" or "top half" of the property is described as "Arthur's Lot" on the 2009 plan. It is common ground that the two halves of the property are approximately equal in size.
In 2000 or 2001, Arthur moved into Hrisoulis and Markela's three bedroom home on the northern half of the property, together with his wife Florina (also known as Flo) and their children, Chris and Mikaylee. Arthur had been working with Hrisoulis and Markela in the chicken farming operations on the property since 1999, and he took over those operations when he moved to the property in 2000 or 2001. The fruit and vegetable growing operations had been wound down and ceased some time earlier. All of the chicken farming operations were conducted on the northern half of the property.
When Arthur and his family moved to the property, Hrisoulis and Markela retired from farming altogether and went to live in a home that Arthur and Flo had purchased at Kariong.
As I have already mentioned, Kit's unchallenged evidence is that, after Arthur and his family moved onto the northern part of the property, Hrisoulis and Markela said to Kit words to the following effect on several occasions: "The farm is yours. The bottom half is Gina's, that is your half. The other half is Arthur's". He acknowledged in cross-examination that it was a possibility that the gift of the southern part of the property would occur under the wills of Hrisoulis and Markela.
Kit also gave evidence that he has had a problem with Arthur's part of the property, or with Arthur's actions, on several occasions since Arthur moved onto the property. On those occasions, Kit has had a conversation with Hrisoulis and Markela, who said to him words to the effect: "Talk to Arthur, that half is his, the other half is yours, talk to him".
After moving to the northern half of the property in 2000 or 2001, Arthur carried out substantial renovations to the existing three bedroom residence. Arthur also built a machinery shed, replaced the roofs of existing sheds, and carried out an environmental impact assessment to support an application for development approval to expand the chicken farming operations on the property. Arthur's unchallenged evidence is that all of those works were funded out of the sale proceeds of another property that he and Flo had owned.
After obtaining development approval for the expanded chicken farming operations, Arthur refitted the existing chicken sheds and built an additional chicken shed on the northern part of the property in 2006 and 2007. These works, which were funded by a loan secured by a mortgage over the farm, expanded the capacity of the chicken farming operations approximately fourfold from 34,000 birds in 1999 to 127,000 birds on completion of the works in 2007.
Gina and Kit have lived on the southern half of the property continuously since 1994, and Arthur and Flo have lived on the northern half of the property continuously since 2000 or 2001. Hrisoulis and Markela remained the registered proprietors of the property until the death of Hrisoulis on 14 June 2023, when his interest in the property passed to Markela by survivorship.
Gina and Kit's daughter, Kayla, tragically passed away at the age of 15 in October 2006.
In his affidavit sworn on 12 August 2024, Arthur gave evidence that: "Throughout the period from when Gina and Kit began living in the dongas in about 1994 to about 2009, my Mum and Dad repeatedly told myself and Gina that the bottom part of the Farm was Gina's and the top portion part of the Farm was mine. As far as I was aware, everybody in our family was very comfortable with that, including Gina."
Under cross-examination by Senior Counsel for Markela, Arthur gave evidence that he understood from those discussions that he would eventually receive the top half of the property, and Gina would eventually receive the bottom half of the property, under their parents' wills.
Under cross-examination by Counsel for the plaintiffs, Arthur acknowledged that he had not said in his affidavit that he understood that these gifts would be by way of inheritance. It was put to him, and he acknowledged, that he had used the words "was Gina's" and "was mine" in that part of his affidavit referred to at [64] above, not "would be Gina's" and "would be mine". It was not put to him that his evidence about his understanding in answer to the question asked by Senior Counsel for Markela was mistaken or wrong, or that it had been false evidence.
At some stage after 2001 and prior to April 2009, there were some discussions between Hrisoulis, Markela, Gina, Kit, Arthur and Flo about the possibility of subdividing the property to create separate titles for the northern half occupied by Arthur and his family and the southern half occupied by Gina and her family. In her affidavit sworn on 2 July 2024, Gina gave evidence that Hrisoulis and Markela were "in complete support of the subdivision proposal", and that "[w]e all knew Mum & Dad were the owners of the Farm (and that the proposal could not have gone ahead without their agreement and approval)".
On 9 April 2009, Hrisoulis, Markela, Gina and Arthur each executed a Deed of Family Arrangement at the offices of Central Coast Business Lawyers.
The recitals to the Deed state: "A. Hrisoulis and Markela are the registered proprietors of the real property at [REDACTED] Niclins Road, Mangrove Mountain in the State of New South Wales ("the real property"). B. In or about 1970, Hrisoulis and Markela acquired the real property for approximately $10,000.00. Situated upon the real property were two (2) old sheds and an old residence. C. Subsequently Hrisoulis and Markela built a new residence on the real property for approximately $31,000.00 and three (3) sheds for approximately $45,500.00 D. With the consent of Hrisoulis and Markela, in or about 2000 Arthur established a chicken breeding business on a portion of the real property and made the following capital improvements to that portion: (i) The construction of a residence at a cost of approximately $250,000.00; (ii) The payment to the local authority, Gosford City Council of approximately $50,000.00; (iii) Concreting and other like jobs at a cost of approximately $40,000.00; (iv) Removal of old sheds and the installation of three (3) new sheds at a cost of approximately $1,380,000.00. (v) The purchase of a tractor at a cost of approximately $60,000.00; and (vi) The purchase of a work shed at a cost of approximately $25,000.00. E. As at the date of this Deed, Arthur's total financial contribution to the real property is approximately $1,805,000.00. F. With the consent of Hrisoulis and Markela there is a mortgage over the portion of the real property which Arthur's residence and business is located in an amount of approximately $1,300,000.00. The mortgagee is the Commonwealth Bank of Australia and the mortgagor is Hrisoulis and Markela as guarantors for Arthur. G. With the consent of Hrisoulis and Markela, Gina resides on another portion of the real property and has made the following capital improvements to that portion: (i) A residence at a cost of approximately $250,000.00; (ii) A work shed at a cost of approximately $20,000.00; and (iii) Gina's partner has also contributed the sum of approximately $100,000.00 to the improvement of the real property. H. As at the date of this Deed, Gina's total financial contribution to the real property is approximately $370,000.00. I. With the consent of Hrisoulis and Markela there is a mortgage over the portion of the real property which Gina's residence is located in an amount of approximately $360,000.00. The mortgagee is the Commonwealth Bank of Australia and the mortgagor is Hrisoulis and Markela as guarantors for Gina. J. The real property is 16.415 hectares and the parties believe that it is capable of subdivision. K. It is the intention of Hrisoulis and Markela to sub-divide the real property and Arthur and Gina consent to such sub-division in respect of the portions of the real property on which their respective residences are located. L. Annexed hereto and marked with the letter "A" is a plan of the real property showing the two (2) proposed lots to be created by the sub-division. M. Hrisoulis and Markela wish to sub-divide the real property on the basis that Hrisoulis and Markela would permit Arthur and Gina to live with them on the real property and for the purpose of the orderly and certain succession on the demise of Hrisoulis and Markela having regard to the financial contributions of Arthur and Gina to the real property. N. The real property and any capital gain referred to above are intended to form a part of the assets of Hrisoulis and Markela and are intended to form part of their estate following the event of the demise of either or both of them. O. Hrisoulis and Markela have contemporaneously entered into Wills on the execution of this Deed to give effect to the terms of this Deed on their demise. P: All parties to this Deed have agreed to enter into its terms in an endeavour to benefit the family generally, to provide certainty and to avoid disputes and litigation on the basis of the terms contained in this document."
It is common ground that Recitals F and I are inaccurate. The mortgage was secured against the whole of the property, which was on one title.
Clause 2 of the Deed provides: "2. SUB-DIVISION OF THE REAL PROPERTY 2.1 Hrisoulis and Markela may in their absolute discretion sub-divide the real property. 2.2 Arthur and Gina shall do all such things and sign all such documents necessary to assist Hrisoulis and Markela to subdivide the real property. 2.3 The subdivision of the real property shall be on the following basis: (a) Unless otherwise agreed by the parties in writing, Arthur and Gina shall pay the costs of the subdivision including all legal and surveying costs. (b) the real property shall be sub-divided into two (2) lots as follows: (i) The first lot shall be of an area of approximately 8.2075 hectares and shall comprise of the land on which Arthur's residence and business are situated ("Arthur's Lot"); and (ii) The second lot shall be of an area of approximately 8.2075 hectares and shall comprise of the land on which Gina's residence is situated ("Gina's Lot"). The lots shall be in accordance with the plan annexed hereto and marked with the letter "A". (c) The parties acknowledge that in the event that Gosford City Council or the Department of Lands require the lots created under the sub-division to differ from the lots indicated in sub-clause (b) then Arthur and Gina shall not be entitled to terminate this Deed or make a claim for compensation so long as their respective lots are not reduced by more than 10%. (d) Hrisoulis and Markela shall retain legal title to the real property and any sub-divided lots until the date of the death of the survivor whereby the provisions of clause 4 shall apply. (e) Arthur and Gina shall hold an equitable interest in their respective lots by way of resulting trust in proportion to their financial contributions made to the acquisition, improvement and maintenance of the real property."
Annexure A to the Deed contains the following plan:
Clause 3 of the Deed provides that Hrisoulis and Markela have the right to sell the property prior to their death, and makes provision for how the sale proceeds are to be applied in that event.
Clause 4.1 of the Deed provides for the transfer of "Arthur's Lot" to Arthur and "Gina's Lot" to Gina following the death of the survivor of Hrisoulis and Markela, if the property has by then been subdivided as contemplated in clause 2.
Clause 4.2 of the Deed provides for an alternative regime in the event that the property has not been subdivided prior to the death of the survivor of Hrisoulis and Markela.
Clause 5 of the Deed provides for the regime in each of clause 3.2 and clause 4.2 to be adjusted to account for any financial contributions to the property made by Arthur or Gina after the date of the Deed.
Clause 6 of the Deed provides: "6. CAVEATABLE INTEREST 6.1 Hrisoulis and Markela acknowledge that Arthur and Gina by making financial contributions to the real property have acquired an interest in the real property pursuant to a resulting trust and are entitled to and may lodge a Caveat on the title to the real property to protect and secure their interest in the real property, and Hrisoulis and Markela shall sign the Caveats consenting to their lodgment, provided however that Arthur and Gina shall execute a Withdrawal of Caveat on or before completion of any sale of the real property and shall deliver such Withdrawal of Caveat to Hrisoulis and Markela on or before completion of the sale. 6.2 Hrisoulis and Markela shall not take any action or lodge any Lapsing Notice in relation to the Caveat at any time except with the written consent of Arthur and Gina."
Clause 7 of the Deed provides: "7. WILLS 7.1 Hrisoulis and Markela shall execute Wills in accordance with the terms of this Deed contemporaneously with the execution of this Deed."
As referred to in more detail below, the property has not been subdivided, and there is no evidence of any prospect of it being subdivided in the future. That is to say, there is no evidence suggesting that there is any prospect that Markela's executors and trustees will be able to transfer "Arthur's Lot" to Arthur and "Gina's Lot" to Gina following the death of Markela, who has survived Hrisoulis, in accordance with clause 4.1 of the Deed.
As Markela is still living, clause 4.2 of the Deed has not yet been enlivened.
Contrary to the plaintiffs' submissions, the defendants have not pleaded any claim in these proceedings to enforce the Deed. The defendants pleaded the substance of the terms of the Deed, and stated that they relied on those terms, in response to the plaintiffs' pleading of certain representations and admissions said to have been contained in the Deed, and in response to the plaintiffs' pleaded allegations about the terms on which a potential subdivision of the property had been discussed between Hrisoulis, Markela, Arthur, Gina and Kit. The defendants did not plead that the doctrine of estoppel by deed operated to preclude the plaintiffs from claiming the relief sought in these proceedings. Nor did the defendants file any cross-claim for specific performance of the Deed. As explained immediately above, the principal obligations under the Deed do not fall due for performance until after the death of Markela. Each of the defendants rely on the terms of the Deed as evidence of the intentions of at least Hrisoulis and Markela in April 2009 concerning the timing of the gift of "Arthur's Lot" and "Gina's Lot" to Arthur and Gina respectively.
At the commencement of the hearing, Markela gave an undertaking to the Court and to the plaintiffs that she will not take any steps to enforce the Deed against Gina and Arthur, or either of them. That undertaking was given in the context of a further undertaking by Markela to the Court and to the plaintiffs not to revoke or amend her will made on 5 September 2023, to which I refer later in these reasons, and not to make a new will.
Arthur gave an undertaking to the Court and to the plaintiffs that, provided that Markela does not alter her 5 September 2023 will (as she has undertaken not to do), Arthur will not take any steps to enforce the Deed.
The plaintiffs then abandoned their claim, made by way of reply and (curiously) cross-claim, to set aside the Deed pursuant to the Contracts Review Act 1980 (NSW) and on the grounds of unconscionability, undue influence and misrepresentation, and abandoned the various other claims in that cross-claim, all of which related to the Deed.
In those circumstances, I pass over the evidence concerning whether Gina read and understood the Deed that she signed on 9 April 2009, whether she signed it under pressure, and whether she was offered a copy of the Deed to take away with her after she had signed it. It will not be necessary to make any findings about those matters. It is not in dispute that Kit did not know about the Deed until shortly before the commencement of these proceedings in April 2023. Gina's unchallenged evidence is that she did not tell Kit about the Deed. It will not be necessary to make any finding about the reasons why Gina did not tell her husband about the Deed.
Arthur gave evidence in cross-examination that, after the Deed was signed in April 2009, it remained his understanding, and continues to be his understanding today, that the promise of the bottom half of the farm to Gina and the top half of the farm to him was to be received under the wills of his parents.
During 2013 and 2014, Arthur installed a fourth chicken shed on the northern part of the property. According to Kit's evidence in cross-examination, the property now has capacity for 161,000 chickens.
In 2014, Kit extended the shed that he had built on the southern half of the farm.
Kit's unchallenged evidence is that, on various occasions after that time, Hrisoulis and Markela said words to him, and to Gina in his presence, to the effect that "[t]he back half of the farm is Gina's" and, indicating the back part of the property, "[t]his is yours".
Gina gave evidence that, by this time, she and Kit were becoming increasingly concerned about the amount of money that Arthur might be borrowing secured against the property, and whether they were at risk of losing the home that they had built on the property if Arthur was unable to repay his loans. Gina and Kit did not know the amount of Arthur's borrowings against the security of the property. Gina and Kit expressed their concerns to Hrisoulis and Markela, who declined to intervene.
In early to mid-2015, Gina and Kit agreed to Arthur's proposal that the three of them would refinance their existing borrowings with National Australia Bank. This was arranged through Mr Rick Evans, a manager at the National Australia Bank with whom both Arthur and Kit had an existing relationship. Gina and Kit refinanced with National Australia Bank their existing home loan of $200,000, and an existing business loan of $120,000. Those loans, together with Arthur's loans that were refinanced by National Australia Bank at the time, were guaranteed by Hrisoulis and Markela, and secured by a mortgage granted by them in favour of National Australia Bank, which was registered against the title to the whole of the property as registered mortgage AK305253.
As I understand the evidence, Gina and Kit did not learn the amount of Arthur's borrowings that were secured by Hrisoulis and Markela's guarantee and the mortgage that they granted to NAB over the property at this time.
In 2017, there were further discussions between Hrisoulis, Markela, Gina, Kit, Arthur and Flo about a potential subdivision of the property. Arthur and Kit took responsibility for instructing SJH Planning & Design to prepare the survey plan and the application for development approval for the proposed subdivision. The survey plan depicts the proposed subdivision of the property into two precisely equal sized lots, which substantially correspond with the more roughly drawn areas of "Arthur's lot" and "Gina's lot" shown on the plan that was annexed to the Deed of Family Arrangement signed in April 2009.
The application for development approval was lodged with the Central Coast Council in September 2017, with the consent of Hrisoulis and Markela as the owners of the property. The Council rejected the application in January 2018. Hrisoulis, Markela, Gina, Kit, Arthur and Flo received legal advice that an appeal against the refusal of development consent would have no prospects of success. No party submitted that the legal advice was wrong. No evidence was adduced of any prospect of the Council granting development consent for the subdivision of the property in the future.
As I have mentioned earlier in these reasons, [2] Gina gave evidence that, if the Council had granted development consent for the proposed subdivision, then there was the potential for the subdivided lots to be transferred to her and to Arthur at that time, but that she did not recall having any discussions about that possibility with her parents. Arthur gave evidence that this had not been discussed with Hrisoulis and Markela at the time. Kit gave evidence in cross-examination that "[i]t was indicated" at the time the development application was made that, if the Council granted consent for the proposed subdivision, then the southern half of the property would be transferred to him and to Gina. Kit said that he expected that, if development consent was granted, then he and Gina would receive the southern part of the property following subdivision. It will be recalled that clause 2 of the Deed signed in April 2009 provided for Hrisoulis and Markela to retain title to the two lots in the event of a subdivision, with Gina and Arthur each having an equitable interest in their respective lots by way of resulting trust reflecting their financial contributions.
Gina gave evidence that, at some time in 2021, her parents telephoned her after Kit had been to see them. Gina gave the following account of her conversation with her parents: "Mum: Kit came here yelling about the bank and Arthur's borrowing, saying things like 'We've lost our home, stop him borrowing more please'. Me: Mum, relax, you know Kit is really worried about this. The bank has taken us off the mortgage, we might lose our home. Mum: He was yelling at us. Your father and I were scared, we did not understand what he was telling about. All I could make out was 'Arthur', 'mortgage' and 'losing our house'. Me: You know he gets frustrated when he's worried. We might lose our house because of Arthur. He's removed our mortgage. This isn't fair Mum. You would be yelling too."
In about November 2021, Arthur telephoned Gina with a proposal that they should engage a solicitor to transfer the property into their names. Arthur told Gina that Mr Evans of National Australia Bank had suggested that it would be more difficult to do this after Hrisoulis and Markela died. There is a slight difference between the evidence of Gina and Arthur, in that Gina recalls Arthur telling her that he had discussed the proposal with their parents, whereas Arthur does not recall this. Arthur does not dispute, however, that his parents were agreeable to a transfer of the property to him and to Gina at that time.
Shortly after the discussion between Arthur and Gina, Mr David Prior, solicitor, of PBL Law Group sent an email to Arthur and to Kit on 10 November 2021 attaching a retainer letter. The retainer letter was addressed to Arthur and Gina, and stated that they had retained PBL Law Group to undertake all legal services required to transfer the property from Hrisoulis and Markela to Gina and Arthur. The retainer letter then set out the procedure by which PBL Law Group would provide those services, commencing with taking initial instructions from Gina and Arthur. The letter stated: "It is our understanding that the Transfer will state that each of you will own the property as tenants in common in unequal shares which will reflect the size of each part of the land that you currently occupy. We will need you to confirm in writing the relevant percentages or fractions of the property that you each are expecting to have transferred to you."
According to Gina's evidence, Arthur had told her in their telephone conversation that Mr Prior had "drafted something up we can sign and we can sort the rest of it out later. It's tenants in common in unequal shares". Arthur denies this. Arthur gave evidence that, at the time he spoke with Gina, he had not seen the letter that Mr Prior subsequently emailed to him and to Kit. In cross-examination, Arthur denied that he had instructed Mr Prior that the transfer to him and Gina was to be in unequal shares. I accept Arthur's evidence, which is consistent with the terms of the retainer letter itself, which makes clear that initial instructions were yet to be taken, and that Arthur and Gina would need to provide written confirmation of the shares in the property that they were each expecting to have transferred to them. The retainer letter, which was addressed only to Arthur and Gina, expressly stated that their parents may require independent legal advice.
It is common ground that Kit had a heated conversation with Arthur in which Kit rejected the notion that the shares should be unequal. Without seeking legal advice or engaging in any further discussions with Arthur, Hrisoulis and Markela concerning the potential terms of a transfer, Gina and Kit refused to contemplate a proposed transfer to Gina and Arthur in anything other than equal shares. In those circumstances, the transfer proposal was taken no further.
In early 2022, Gina and Kit wished to investigate again the possibility of subdividing the property into two equal sized lots. Kit gave evidence that, at that time, "it was becoming apparent that we would need either to subdivide or if not, sell the Property. Gina and I were ready to retire and our retirement funds were tied up in the value of the Property".
Kit drafted a document for Gina to present to her parents for signature to authorise Kit and Gina to apply for subdivision. The document read: "To whom it may concern. We Hrisouli and Markela Papakonstantinou property owners of [REDACTED] Niclins road Mangrove Mountain are in Agreeance the said property To be subdivided, and give our son-in-law Kit and daughter Georgina Hildebrandt the authority to engage outlook planning to start and finish proceedings of the DA to subdivide the land. The land that their house and goods sit upon has been gifted to them."
Gina went to see Hrisoulis and Markela with Kit's document in February 2022. According to Gina's evidence she read the whole of the document in Greek to her parents, and also read it to Arthur over the phone, before Arthur agreed that Hrisoulis and Markela should sign it, and they did so. Arthur does not recall Gina reading to him the last sentence of the document: "The land that their house and goods sit upon has been gifted to them". It is not necessary to make any finding about whether or not Gina did read that sentence to Arthur, because the subdivision application did not proceed. Asked about the last sentence of the note in cross-examination, Gina said: "I did explain. Because all my life - this has been gifted to us one day. So it has been gifted to us. I explained that to mum".
It is common ground that the improvements that Arthur has made to the northern half of the property over the years since 2000 or 2001 are more extensive than the improvements that Gina and Kit have made to the southern half of the property during the same period. Both Gina and Kit gave evidence in cross-examination disavowing any interest in receiving any part of the value of the improvements made by Arthur. Yet the November 2021 transfer proposal angered them because the solicitors' retainer letter referred to the solicitors' understanding, subject to taking instructions, that the transfer was to be to Arthur and Gina as tenants in common in unequal shares. Kit gave evidence in cross-examination that he wanted the land to be transferred in equal shares. He denied that this would result in Gina sharing in the value of the improvements that Arthur had made to the northern half of the property.
In February 2023, Gina and Kit lodged a caveat against the title to the property. The interest claimed in the caveat was described as a lien by virtue of agreement. The details supporting the claim stated: "Since 1991, the caveators have, with their own funds and with the registered proprietors consent and encouragement, resided at, and funded the substantial improvement of, the land".
Gina gave evidence that she visited her parents three or four days after the caveat was lodged to explain it to them. Gina told her parents that she and Kit did not want to sell the property, but they were concerned about Arthur borrowing against the security of the property. According to Gina's evidence, she complained to her parents that Arthur would not tell them anything about his borrowings. Gina told her parents that "[w]e don't want his debt". Gina gave evidence that she and Kit had been expressing concerns to Hrisoulis and Markela for some years prior to this about what they believed was an increasing level of borrowing by Arthur secured against the property. These concerns had also led to what Gina described as heated arguments between Kit and Arthur. Hrisoulis and Markela had declined to intervene, and had told Gina and Kit: "You have your 1/2 of the Farm and Arthur has his 1/2. What Arthur does with his 1/2 is his business. It is none of yours". When meeting with her parents after the caveat had been lodged, Gina also told them that she was worried that Arthur might sell the property, and she complained that Arthur had "take[n] our name off the mortgage". This allegation had also been the subject of previous complaints by Gina and Kit. [3]
With respect, it is difficult to understand the concerns that Gina expressed to her parents by way of explaining the caveat that she and Kit had lodged against the property. First, Arthur was exposed to the risk of the bank enforcing the mortgage if Gina and Kit failed to meet their loan repayments, in the same way that Gina and Kit were exposed to that risk if Arthur failed to meet his loan repayments. The evidence adduced in these proceedings does not disclose any basis for Gina and Kit to fear in 2023 that Arthur would fail to service his loans. Second, Arthur was not a registered owner of the property, and he was therefore not in any position to sell it. Third, as Counsel for the plaintiffs acknowledged in closing submissions, Arthur had not taken the names of Gina and Kit "off the mortgage". As explained earlier in these reasons, Gina and Kit were the borrowers under two loans that were guaranteed by Hrisoulis and Markela, and their obligations as guarantors of those loans and of other loans taken out by Arthur were secured by a mortgage over the whole of the property.
According to Gina's evidence, Markela told her that: "I just want this to stop. Kit is always stopping Arthur doing what he wants. I don't want you to stop Arthur. I don't understand the loans you're talking about".
On 21 March 2023, Gina and Kit were served with a lapsing notice.
Correspondence between the solicitors acting for Gina and Kit, and the solicitors acting for Hrisoulis and Markela, followed.
Gina and Kit commenced these proceedings on 3 April 2023.
The matter came before the Equity Duty Judge on 5 April 2023. No order was made extending the caveat on the basis of an undertaking given to the Court by the defendants in comprehensive terms not to deal with the property, including by making any further drawdowns under any loan secured against the property (save for utilising any existing overdraft facility), and to comply with the terms of the mortgage registered against the title of the property.
Hrisoulis and Markela then applied for the caveat to be removed from the title on the basis of service of the lapsing notice in March 2023. Notwithstanding the undertaking that the defendants had given to the Court on 5 April 2023, the plaintiffs then applied to the Court for an order permitting them to lodge a further caveat. The defendants neither consented to nor opposed that application, and the order was made under s 74O of the Real Property Act 1900 (NSW) on 5 May 2023.
The caveat that the plaintiffs then lodged on 5 May 2023, being caveat AT61850, claimed a different interest to the caveat lodged in February 2023. The plaintiffs claimed an interest that was described as a charge. The details supporting the claim stated: "The Caveator claims an equitable interest as beneficiary of a constructive trust, or, alternatively, an equitable interest as chargee or lienee by virtue of the facts referred to in Annexure A."
Annexure A stated: "Financial contributions made by the Caveator to fund substantial improvements to the land since 1994 (on which the Caveator has resided since that time) with the Registered Proprietor's consent and encouragement (and in reliance upon representations made by the Registered Proprietors that the land would become the Caveator's) such as to establish proprietary estoppel."
Kit gave the following evidence in cross-examination (emphasis added): "Q. … I think you have agreed with me that in your caveat, you've said that there was reliance on representations made by the landowners that you and your wife would own the southern part of the farm, correct? A. Correct. Q. Could you explain to us how, at the time this caveat was put on, you understood your parents‑in‑law would have been able to transfer the farm, that is to say the southern part of the farm, to you and your wife when the farm had not been subdivided? A. That's a technical question that even the, the Court, when you put a caveat on, doesn't have any spot in there that you can actually check a box, it only gives you certain boxes you can actually check. Q. You know, don't you, that the only way this could be addressed by the parents‑in‑law was to leave the property to your wife and you in their wills, correct? A. That's a possibility. Q. That was a possibility that you have always understood was the way in which the promise to your wife and to you over many years would ultimately be delivered, correct? A. That's a possibility. The will, the will actually states that my name doesn't even exist onto it. Q. But is there any other possibility? A. You're asking me if, if, in the will, that my mother‑in‑law wrote in August of last year or September of last year represented that I was going to receive the southern portion of the farm or part of the farm is inaccurate because my name doesn't exist on there. Q. But you know, don't you, that the only way your parents‑in‑law could deliver on a promise with respect to the southern half of the farm was after a subdivision to transfer the lower part or to deal with the whole property in their wills, correct? A. That is a possibility. Q. Are there any others? A. Yes. Q. What are they? A. That the farm was going to be transferred into my wife's name and Arthur's name in 2021. Q. But how could that occur absent a subdivision? A. Pardon me? Q. How could that occur absent a subdivision? A. Quite simple, they transfer it from Hrisoulis and Markela Papakonstantinou to Arthur Papakonstantinou and Gina Hildebrandt, which is what they applied to do with PBL Law Group. Q. You wanted that transfer to be in equal shares, didn't you? A. Well the land value as equal shares, yes. Q. That was the problem, wasn't it? A. That was part of the problem, yes. Q. The reason it was a problem was because you knew that a transfer to Arthur and your wife in equal shares would mean that you would share in the value of Arthur's property? A. No, that's not what it meant."
Kit's answers which I have emphasised in the extract from his oral evidence immediately above may reflect a belief that a transfer of the land would not include the improvements affixed to the land. If so, that belief is mistaken.
As I have already mentioned, Hrisoulis passed away on 14 June 2023, shortly after being diagnosed with pancreatic cancer in May 2023, for which he was admitted to hospital on about 1 June 2023. By clause 9 of his last will made on 8 June 2023, Hrisoulis gave the whole of his estate to Markela.
Clause 10 of Hrisoulis' last will contains an alternative bequest in the event that Markela predeceases Hrisoulis. In that event, and if these proceedings have not been settled prior to Hrisoulis' death, clause 10(c) of the will provided that the property was given to Arthur to be held on trust for Gina and for himself in the proportions of 30.46% for Gina (calculated on the basis that the size of the land surrounding Gina and Kit's home on the property is approximately five hectares, which represents approximately 30.46% of the size of the whole of the property), and the remainder for Arthur, on terms that Arthur either buy Gina's portion from her or sell the whole of the property and pay to Gina the value of her 30.46% portion of the property.
Markela survived Hrisoulis. Clause 10 of his will did not take effect.
Hrisoulis' interest in the property passed to Markela, not under clause 9 of his will, but by survivorship. In August 2023, Markela became registered as the sole proprietor of the property as the surviving joint tenant. The title remains encumbered by the mortgage registered in favour of National Australia Bank in 2015, being registered mortgage AK305253.
It is common ground that, at the time of his death, Hrisoulis had no assets of any material value, other than the property which he owned jointly with Markela and some funds in a bank account that he held jointly with Markela.
On 5 September 2023, Markela made a will pursuant to which she appointed Arthur and Gina as her joint executors and trustees.
Markela's will provides: "3. I LEAVE the whole of my estate to my Trustee ON TRUST: 3.1 As to the real property owned by me and situated at [REDACTED] Niclins Road, Mangrove Mountain and depicted in the plan ATTACHED to this Will and marked "Arthur's Lot" to the north and "Gina's Lot" to the south: (a) I DIRECT my Trustee to obtain a valuation of the said real property as at the date of my death from a registered Valuer as though the property was subdivided into separate freehold lots as marked in the said plan as "Arthur's Lot" and "Gina's Lot"; and (b) I GIVE the said real property to ARTHUR PAPAS and GINA HILDEBRANDT as tenants in common in shares to be determined by my Trustee on the basis of the said valuation, so the share given to ARTHUR PAPAS shall be the proportion of the value of "Arthur's Lot" to the value of "Arthur's Lot" and "Gina's Lot" and the share given to GINA HILDEBRANDT shall be the proportion of the value of "Gina's Lot" to the value of "Arthur's Lot" and "Gina's Lot"; and (c) I DECLARE that the gift of the said real property as aforesaid, shall be subject to ARTHUR PAPAS being solely liable for all debts that he has borrowed on the security of the said property and GINA HILDEBRANDT being solely liable for all debts that she has borrowed on the security of the said property; and (d) If my Trustee is unable to agree on a registered Valuer to conduct the valuation referred to in clause 3.1.(a) above, then the President of the Law Society of New South Wales is to nominate a registered Valuer. 3.2 I DIRECT the payment of all my just debts and funeral and testamentary expenses from the residue of my estate, and for the residue to otherwise be divided equally between ARTHUR PAPAS and GINA HILDEBRANDT for their own use absolutely. 4. If ARTHUR PAPAS predeceases me then I GIVE the share ARTHUR PAPAS would have taken under my Will had he survived me to his wife FIORINA PAPAS. 5. If GINA HILDEBRANDT predeceases me then I GIVE the share GINA HILDEBRANDT would have taken under my Will had she survived me to her children CHRISTOPHER HILDEBRANDT and ANDREW HILDEBRANDT in equal shares for their own use absolutely."
On 11 September 2023, Markela's solicitors wrote to Gina and Kit's solicitors enclosing a copy of Markela's will, in the context of an ongoing mediation of these proceedings. The letter stated: "The will confirms that Mrs Papakonstantinou has not resiled from any of the promises or assurances that the plaintiffs rely on with respect to the subject property. The proceedings therefore have no utility, and the plaintiffs claim against the second defendant will fail."
Gina and Kit's solicitors replied by letter dated 20 September 2023, stating that neither Markela's will, nor the assertion in the 11 September 2023 letter that she does not resile from her representations, resolved the proceedings. The letter requested confirmation that Markela: "… will now consent to judgment being entered against her in the proceedings (including the relief sought by our clients). If your client is as agreeable to our clients' claims as you suggest, we would have thought this the obvious appropriate resolution of the proceedings (rather than their discontinuance or dismissal, with each of our respective clients paying their own costs)."
The relief claimed in the Summons filed by the plaintiffs on 3 April 2023 was predicated on the plaintiffs having a present entitlement to an interest in the property. The claims for relief included claims for an order requiring the property to be transferred to Gina and Kit (jointly) and Arthur as tenants in common in equal shares or, alternatively, in shares proportionate to their respective contributions to the property.
As I have mentioned earlier in these reasons, Markela has given an undertaking to the Court and to the plaintiffs not to revoke or amend her will, and not to make a new will.
Gina gave the following evidence in cross-examination: "Q. You understand, don't you, that if the will is to be implemented as some point in the future, subject to you being responsible for your own debts, you will receive the full value of the southern half of the property. A. Correct. Q. And that's to be determined as a proportion of the value of the whole property. Do you understand that? A. Well, I don't understand it. But, that's what it says. Yes. Q. So, when your mother passes away at some stage in the future, under this will you will have delivered to you that which you have always been promised, namely Gina's Lot. Correct? A. Mm-hmm. Q. Is that right? A. Yes. Q. Subject, of course, to you being responsible for your own debts. Is that right? A. Mm-hmm. Q. And subject, obviously, with Arthur being responsible for his own debts? A. Yes. Q. So, I'm sorry, but I have to ask the question, what's wrong with that? A. You know, most, it's nothing, but in number 5, if I, if I predecease; "If Gina Hildebrandt predeceases me then I give her share to Gina, who would have taken my will had she survived me, to her children, Christopher Hildebrandt and Andrew Hildebrandt, in equal shares" That's great. Q. Yes. A. But, above - Q. Well, they're your sons. A. --if anything happens to Arthur it goes to his wife. Why doesn't mine go to my husband and it goes straight to the children? Q. Well, I understand that and - A. I mean, he doesn't get, he doesn't get a say in the home that he's worked so hard for? I mean, you know, is, is my mum's will wrong? You know, I - this is my mum's will, okay. It's her will. No‑one is - it's her will. But, when you read, "If Arthur Papas predeceases me then I give the share Arthur would have taken under my will had he survived me to his wife". But, what happens with me? She's going to give it to Andrew and Christopher. What happens to Kit? There's a discrimination factor here. Okay? Q. So, if you - A. But, as in a, you know, I, I don't think that's fair. Q. All right. A. It's definitely - if it can go to Flo if anything, touch wood, happens to Arthur, it can go to my husband if anything, touch wood, happens to me."
Kit gave the following evidence in cross-examination about Markela's will: "Q. If we come back then to the will and if I could ask you to look at clause 3, you'll see that in subparagraph (a) in clause 3.1, there's to be a valuation? A. Mm-hmm. Q. So that the value of the southern half of the farm or "Gina's Lot" is to be worked out similarly with the northern half or "Arthur's Lot", do you see that? A. Yep. Q. Do you accept that if this will is to operate upon the passing of your mother‑in‑law, that in clause 3.1(b) of the will, you and Gina will receive the value of the southern part of the farm or "Gina's Lot" as it's described on the plan? A. My name's not there. That says Gina Hildebrandt. Q. I'll come to that, but can you just please attend to my proposition? You accept, don't you, that under clause 3.1(b) of the will, Gina, to take your point, will eventually receive the value of the southern half, or "Gina's Lot" as it's described on the plan, in proportion to the value of "Arthur's Lot"? A. Yeah, I read that. Q. In the result under this will, do you accept that the full value of Gina's Lot will be provided under this will upon the death of your mother‑in‑law? A. That's a possibility, yes. Q. Is there any other? A. Well if you go to the following page, clause number 5, it omits me if something happens to my wife, so no, it's - I'm not part of this, this will, so if something happened to my wife, I would lose what I put my whole life into and what I paid for. Q. But subject to that, do you accept that what's proposed under this will will give at least your wife the full value of the southern part of the farm? A. That is part of it, but we were in the midst of a very contentious mediation with his Honour Keith Mason. … Q. … how long have you been married to Gina for? A. 39 years. Q. Would you agree with this proposition that your personal relationship with her is as strong today as it has ever been? A. My wife and I are very strong right now, yes. Q. Do you agree with this proposition that as you currently see things, you and your wife will grow old together and will still be happily married when one of you passes which regrettably will happen at some stage? A. Correct."
Gina gave evidence to the same effect about her relationship with her husband.
Gina and Kit are now aged 61 and 64 years (respectively). They do not own any real estate. They continue to live in the home that they built on the southern half of the property.
Kit works in his own business, Auscan International, which specialises in fitting out chicken sheds with equipment and machinery, and in servicing, maintaining, repairing and replacing such machinery. Gina provides some assistance to Kit in carrying out administrative and other work for Auscan International. Gina is not otherwise working outside the home at present, and has not done so since about 2008.
Auscan International is the trustee of the Hildebrandt Family Trust. Gina and Kit each receive a distribution from the Trust each year. In the year ended 30 June 2023, Gina and Kit each received a distribution of $21,770 and $21,769 respectively, which equates to an average sum of $1,814 per month each. Gina estimates that she and Kit together have monthly expenses of approximately $13,500, compared to an average combined monthly income of $3,628 during the 2023 financial year. There is no evidence about the amount of any distributions that Gina or Kit received from Auscan International as trustee of the Hildebrandt Family Trust during the year ended 30 June 2024. Nor is there any evidence that casts light on whether the amount of the distributions paid to them in the year ended 30 June 2023 are indicative of the amount of distributions they are likely to receive in future years.
According to Gina's evidence, she has assets with an estimated value of $4,678, Kit has assets with an estimated value of $48,827, and she and Kit jointly own further assets with an estimated value of $25,791. Thus, between them, Gina and Kit own (jointly or separately) assets that Gina estimates have a total value of $75,297. In arriving at that estimate, Gina has not addressed the value of the business that Auscan International operates as trustee of the Hildebrandt Family Trust. Gina has accounted only for Kit's ownership of one share in the corporate entity Auscan International, to which she has attributed a value of one dollar.
Gina has estimated that Kit has liabilities of approximately $134,704, and that she and Kit have additional joint liabilities of approximately $368,737, including their liability to repay to National Australia Bank their borrowings that are secured against the property. According to Gina's affidavit sworn on 2 July 2024, the total amount that she and Kit presently owe to National Australia Bank secured by mortgage against the property is approximately $298,737, which the bank requires to be reduced to $256,000 by 31 December 2024, to $128,000 by 31 December 2029, and to nil by 31 December 2034. Monthly repayments of $2,467 to National Australia Bank are included in Gina and Kit's combined monthly expenses to which I have referred above.
Gina has no superannuation. Kit has superannuation of approximately $15,000.
In her affidavit sworn on 2 July 2024, Gina gave evidence that she and Kit have "nothing concrete to show" for the improvements that they have made to the southern half of the property since 1994. Gina deposed that: "548 I confirm that, if I had not believed that the southern 1/2 of the Farm was mine (or Kit's & mine), in July 1991 I would not have given up my independent life in Canada (to live, initially, with Mum & Dad in Mum & Dad's House for about 3 years). Among other things (and in particular), I would not have given up our Canadian home at 417 Lloyd Crescent (which I confirm Kit & I then owned, had a Mortgage over, and were paying off). 549 If Kit & I had not done so, I believe that, by now, it is likely we would own (or be largely on the way to owning) 417 Lloyd Crescent (or any other home we later bought). We might also then have looked at an investment property or properties. 550 I also confirm that, If I had not believed the southern 1/2 of the Farm was mine (or Kit's & mine), in 1994 I would not have moved to the southern 1/2 of the Farm to live in the dongas (with 3 young children) (and remained living in those dongas for about 7 years). 551 I would also not have done the work (and spent the money) making the other improvements to the southern 1/2 of the Farm I have referred to above. 552 In particular, I would not have borrowed the money from the CBA (and done all of the work) building Our House on the southern 1/2 of the Farm between August 2001 - February 2002. 553 I also confirm that, if I had not believed the southern 1/2 of the Farm was mine (or Kit's & mine), I would not have done the work (and spent the money) I have referred to above relating to the 2017-2018 proposed subdivision of the Farm, the November 2021 proposed transfer of the Farm or the further investigation of subdivision in about February 2022. 554 Arthur did not ever make any contribution to any of the payments I have referred to above. Nor did Flo. 555 I further confirm I would not have done these things if, as a result of Arthur's borrowings for the northern 1/2 of the Farm (and otherwise), I had known Kit & I: (a) could lose some or all of our equity in Our House (and in the southern 1/2 of the Farm); and (b) face the risk of eviction from Our House (and the southern 1/2 of the Farm) if (for any reason) Arthur cannot repay what he has borrowed (or suffers some other misfortune) (whether now or at any time in the future). 556 More generally, Kit & I have now been on the Farm for almost 33 years. We were 28 & 31 years old (respectively) when we arrived from Canada on 18 July 1991. We are now 61 & 64 (respectively). 557 We are both approaching retirement age. I would like to retire. I am also concerned that, at the age of 61, Kit is unlikely to be able to perform the physical labour required in his job for much longer. 558 I am also concerned that, practically, Kit & I are unable to realise whatever equity we have in Our House (and in the southern 1/2 of the Farm). Currently, we are effectively tied to the southern 1/2 of the Farm (and cannot leave it). 559 I am now at the stage in my life where I would like to leave. More generally, I would like to get on with my life. I believe Kit has the same view. 560 However, if we simply leave Our House (and the southern 1/2 of the Farm), we leave with nothing (and have nothing to show for the last almost 33 years)."
Gina abandoned the substance of her evidence in paragraphs 548 to 553 of that affidavit by giving evidence in cross-examination that her expectation and assumption at all times was that the southern half of the property would be hers, or hers and Kit's, only by way of inheritance following the death of both of her parents. [4] Arthur does not claim to have made any contribution to the improvements made by Gina and Kit on the southern half of the property. Nor do Gina and Kit claim to have made any contribution to the improvements made by Arthur to the northern part of the property. There is no evidence of any real risk of the matters referred to in paragraph 555 of Gina's affidavit. It appears that Gina is no longer satisfied with receiving the southern part of the property by way of inheritance after the death of both of her parents, which does not suit the retirement plans to which she refers in paragraphs 556 to 560 of her affidavit.
Markela is now aged 88 years.
At the conclusion of the cross-examination of Gina and Kit, Senior Counsel for Markela informed the Court that he would no longer be adducing evidence from Markela. Subsequently, after all parties had closed their cases, Counsel for the plaintiffs indicated that three short affidavits of Markela addressing the assets of the estate of Hrisoulis were relevant to Gina's family provision claim, and that he would not object to the reading of those affidavits. Those three affidavits were subsequently read. A further of affidavit of Markela that had been served by the defendants, addressing discussions concerning the property over the years, was not read. Markela was not required for cross-examination.
The three affidavits of Markela that were read establish that, at the date of the death of Hrisoulis, his assets were: (1) the property, which he and Markela owned as joint tenants, and which Markela estimates has a value of $6,450,000, including the water licence associated with the property; (2) a sum of $14,540 in a bank account that Hrisoulis held jointly with Markela; and (3) a 2014 Nissan Pulsar vehicle which Markela estimates has a value of $13,000.
As I have mentioned earlier in these reasons, the title to the property passed to Markela upon the death of Hrisoulis by right of survivorship.
The joint bank account is now held in Markela's sole name.
The motor vehicle is in Markela's possession, and she is taking steps to have it transferred into her name.

The plaintiff's pleaded claim

The plaintiffs' pleaded case relies on representations that they have defined as "the first representations" and "the second representations".
The amended statement of claim defines the "first representations" as, collectively: (1) representations made by Hrisoulis and Markela to Gina from 1970 onwards when Gina was very young that, "when they died, Gina and Arthur would inherit the Farm in equal 1/2 shares"; (2) representations made by Hrisoulis and Markela to Gina and Kit during the period between May 1985 and 1991, in the context of Hrisoulis and Markela urging Gina and Kit to move to Australia and live on the farm, that "the Farm was 'half yours'"; and (3) a representation made by Hrisoulis and Markela in a telephone call with Gina and Kit in early 1991, again in the context of Hrisoulis and Markela urging Gina and Kit to move to Australia and live on the farm that "the Farm would be Kit & Gina's".
The plaintiffs plead that, induced by the "first representations", each of them assumed and expected that, if they left Canada, moved to Australia, and lived and worked on the farm with Hrisoulis and Markela, then one half of the farm would be theirs.
The plaintiffs plead that, in reliance on that assumption and expectation, they left their life in Canada and moved to Australia to live on the farm with Hrisoulis and Markela in July 1991. The plaintiffs plead that, if they had not held that assumption and expectation, they would have remained living in Canada, where they had purchased a property and where they were working and raising their young children with the support of Kit's parents and Gina's aunt and uncle with whom she was very close.
The amended statement of claim defines the "second representations" as, collectively: (1) representations made by Hrisoulis and Markela to Gina and Kit in 1994, in the context of Gina and Kit informing them that they were considering moving away from the farm, that "the Farm was 'yours'" and "'the back of the farm' was Gina's", and that Gina and Kit could build another house on the "back of the farm"; and (2) representations made by Hrisoulis and Markela to Gina and Kit from and after 1994, in the context of Gina and Kit discussing building a home on the southern half of the farm, that Gina and Kit "could build what they wanted on the southern half of the Farm (because it was theirs)".
The plaintiffs plead that, induced by the "second representations", each of them assumed and expected that the southern half of the property was theirs, and that they could therefore build a house for themselves and their family on it.
The plaintiffs plead that, in reliance on that assumption and expectation, they moved into the dongas on the southern half of the property in 1994, they renovated the dongas to live in and built a substantial shed on the southern half of the farm in 1994 (and carried out associated excavation and landscaping works, and connected electricity to the southern half of the farm), they planted crops and navel orange trees on the southern half of the farm, they maintained the southern half of the farm and paid half of the rates for the property (until about 2012 or 2013, when they say that Arthur stopped providing rates notices to them after an argument between Kit and Arthur), they built their home on the southern half of the farm (including installing a water tank, septic absorption pit, and telephone service), and they have made all repayments under the bank loan that they obtained to finance the construction of their home which is secured by a personal guarantee of Hrisoulis and Markela, which is in turn secured by a mortgage over the property.
The plaintiffs plead that they would not have done any of those things if they had not held the assumption and expectation that the southern half of the property was theirs, and they would have instead moved away from the property in 1994 and found alternative accommodation elsewhere for themselves and their family.
The plaintiffs plead that Hrisoulis and Markela have resiled, or sought to resile, from the "first representations" and the "second representations": 1. by failing to transfer "the southern half of the Farm" to Gina and Kit: 1. after they returned to Australia in July 1991; 2. after they moved to live in the dongas on the southern half of the property in 1994; 3. after completion of the construction of Gina and Kit's home on the southern half of the property in early 2002; 4. after April 2009 when Hrisoulis and Markela signed the Deed of Family Arrangement, which the plaintiffs contend recorded Hrisoulis and Markela's intention to subdivide the Farm into two lots of equal size; and 5. at the time of the 2015 refinancing referred to at [91] above; 1. by proposing a transfer of the property to Arthur and Gina as tenants in common in unequal shares in November 2021, thereby denying "that Gina & Kit had an (equal) one half (1/2) interest in the Farm"; 2. by denying that Gina and Kit had a caveatable interest in the property by serving the lapsing notice in respect of the caveat that Gina and Kit lodged against the title to the property in February 2023, and by opposing Gina and Kit's application to this Court for urgent interim relief extending the operation of that caveat; 3. by causing that first caveat to be removed from the title to the property without prior notice to Gina and Kit, and allegedly in breach of their undertaking given to the Court; 4. by failing to sever their joint tenancy of the property so that, on Hrisoulis' death on 14 June 2023, the property passed to Markela by right of survivorship; 5. by Hrisoulis' will dated 8 June 2023, in which he gave the whole of his estate to Markela absolutely and, in the event that Markela pre-deceased him, did not give half of the property to Gina and Kit; and 6. by Markela's will dated 5 September 2023.
The plaintiffs plead that they have suffered, and will suffer, the following detriment if Hrisoulis and Markela are permitted to resile from the "first representations" and the "second representations": 1. giving up their home, employment and settled life in Canada in 1991, including giving up the opportunities to consolidate and build real estate and other wealth in Canada and for Kit to pursue his career in Canada as an upholsterer; 2. performing unpaid work on the farm from the time that they moved to Australia to live on the farm in July 1991, during the prime years of their working lives; 3. investing their labour and incurring the cost of improving the southern half of the property, including building their home in 2001 and 2002, and paying half of the rates in respect of the property from 1994 until about 2012 or 2013, during the prime years of their working lives; 4. significant "loss of equity" that they say they have suffered in their house since 2001 "as Arthur's borrowings have increased"; 5. incurring the costs of preparing and submitting the unsuccessful development application for subdivision, and the costs of obtaining legal advice in relation to the prospects of an appeal, in 2017 and 2018; 6. incurring costs in connection with the proposed transfer of the property to Arthur and Gina in November 2021; 7. incurring costs in connection with investigating the prospects of subdivision further in 2022; 8. having "nothing tangible to show" for all of this effort and cost "in real estate terms" after more than 32 years; 9. being in a "fundamentally precarious position legally" in that their efforts over more than 32 years are protected only by a caveat; 10. being at risk of eviction if Arthur fails to service his borrowings secured against the property; and 11. being unable to realise the "equity" that they have created in the southern half of the property and move elsewhere, in circumstances where they are both at or close to retirement age and, they contend, Kit is unlikely to be able to continue with the physical labour required by his work for much longer.
The plaintiffs plead that, in all the circumstances, Hrisoulis and Markela have acted unconscionably in failing to avoid that detriment to the plaintiffs by fulfilling their assumptions and expectations that one half of the property would be theirs in 1991, and was theirs in 1994. [5]
It is necessary to record the terms of the relief claimed by the plaintiffs.
Prayers 1 to 4 of the Amended Statement of Claim filed on 16 February 2024 sought a declaration that Markela holds the property on constructive trust for the plaintiffs (on the one hand) and Arthur (on the other hand) as tenants in common in equal shares, and an order requiring her to transfer the property and all related or ancillary rights to the plaintiffs (on the one hand) and Arthur (on the other hand) as tenants in common in equal shares. In addition to the proposed declaration but, as I understand it, in the alternative to the proposed order for transfer, prayers 4A to 4E of the Amended Statement of Claim sought orders under ss 71, 76 and 78 of the Trustee Act 1925 (NSW) appointing trustees for sale of the property with each of the plaintiffs (jointly) and Arthur to receive one half of the sale proceeds on the condition that they each discharge their respective debts secured against the property.
In the course of opening submissions on the first day of the hearing, Counsel for the plaintiffs made it very clear that the plaintiffs do not seek to profit from the improvements that Arthur has made to the northern half of the property, which it is common ground have been more extensive and are of greater value than the improvements made by the plaintiffs to the southern half of the property. Under questioning from me, Counsel for the plaintiffs then accepted that, if the Court were to grant the relief sought in prayers 1 to 4E of the Amended Statement of Claim, this would result in the plaintiffs receiving a share of the benefit of Arthur's improvements, and that there would need to be an accounting which had not been provided for in the terms of the relief sought in prayers 1 to 4E. I required Counsel to formulate in writing the precise terms of the relief to be sought.
That led to Counsel purporting on the second day of the hearing to verbally amend prayers 1 to 4 of the Amended Statement of Claim to seek a declaration that Markela holds the property on constructive trust for the plaintiffs (on the one hand) and Arthur (on the other hand) as tenants in common in shares to be determined by the Court in the future (rather than in equal shares), and an order requiring her to transfer the property and all related or ancillary rights to the plaintiffs (on the one hand) and Arthur (on the other hand) as tenants in common in shares to be determined by the Court in the future (rather than in equal shares). Counsel for the plaintiffs also handed up a written revised formulation of prayers 4A to 4E, which sought an order requiring the property and all ancillary rights to be sold either by Markela or by a trustee appointed pursuant to s 76 of the Trustee Act, an order for the discharge of the mortgage secured against the property following completion of the sale, an order requiring Markela (or the appointed trustee) to account to each of the plaintiffs (jointly) and Arthur "in connection with the sale" and to hold the net proceeds of sale on trust for the plaintiffs and for Arthur "pending further order or direction of the Court", and an order reserving the matter for further consideration and granting liberty to apply.
Plainly, relief granted in such terms would not finally resolve the plaintiffs' proprietary estoppel claim.
Counsel for the plaintiffs submitted that the formulation of appropriate relief in this case, assuming that the plaintiffs succeed in their proprietary estoppel claim, had been particularly difficult because there had been uncertainty about whether "[w]hen we talk about a half of the farm, are we talking about a geographical half, a value half, debt half?". Counsel submitted that the plaintiffs now wished to clarify that they are talking about "a geographical half". Counsel for the plaintiffs then reiterated that the plaintiffs "don't seek to profit from the northern half of the farm. If it is more valuable we don't seek to profit from it. But again, equally, we don't wish to be liable for the debt for it. Our position is that each side should pay their own debts".
Counsel then submitted: "That's the reason that we think it's a just solution if we're successful that the farm just be sold. … we propose that on the completion of the sale all moneys owing by each side to the mortgagee, the bank, that's secured by the bank's mortgage, obviously, be paid to the bank and the bank's mortgage be discharged. Then what would happen is that [Markela] would then account to each side in connection with the sale and hold the net proceeds of sale on trust for the plaintiffs and [Arthur] pending further order or direction of the Court, and we propose the reservation of further consideration and liberty to apply. It seems to us that may be a way out of the problem. Let's just sell the property, get the NAB out of the picture, have both sides pay their debts. We then have a crystallised, liquidated amount of money that's a trustee…".
I interrupted Counsel for the plaintiffs at this point to ask: "And then have a further dispute about how that amount should be divided up?". Counsel replied: "Well, what I would propose … there would be various ways you could do it, but we could possibly get valuations at that time. We could get valuations of each half of the farm and then on the basis of those the net proceeds of sale could be disbursed in accordance with those valuations".
The "problem" that led to the plaintiffs proposing an immediate sale and deferral of the resolution of all other issues is that the plaintiffs failed to adduce any evidence of the value of the property, or the value of "Arthur's Lot" and "Gina's Lot", at the hearing. The plaintiffs sought, unsuccessfully, to rely on valuation reports dated March 2023 and 9 May 2024, which the plaintiffs had inexplicably failed to serve until 9 August 2024, in breach of a guillotine order which had required the plaintiffs to seek leave to rely on any evidence served after 5 July 2024. The plaintiffs were refused leave to rely on those valuation reports, the late service of which had deprived the defendants of any real opportunity to respond.
In the alternative to their claims in prayers 1 to 4E for a declaration and orders for transfer or sale, the plaintiffs seek in prayers 7 and 8A a declaration that they are entitled to payment from Markela of a sum representing the present value of one half of the property (with the property being valued as though it can be subdivided), an order that the sum, when ascertained, be charged on the title to the whole of the property together with interest under s 100 of the Civil Procedure Act 2005 (NSW), and an order requiring Markela to pay the monies secured by that charge within three months, failing which the property is to be sold by Markela or by trustees appointed by the Court. As I have already mentioned, the plaintiffs have not adduced the evidence that would be required to ascertain the sum that would be secured by such a charge.
In the further alternative to the claims in prayers 1 to 4E and 7, the plaintiffs claim in prayers 8 and 8A a declaration that they are entitled to an equitable charge or lien over the property in respect of the moneys that the plaintiffs have expended and the liabilities that they have incurred in developing and improving the property, together with interest under s 100 of the Civil Procedure Act, and an order requiring Markela to pay the monies secured by that charge or lien within three months, failing which the property is to be sold by Markela or by trustees appointed by the Court.
In the further alternative to the claims in prayers 1 to 4E and 7 to 8A, the plaintiffs claim in prayer 9 a declaration that they are entitled to a leasehold interest, or alternatively possession, of the southern half of the property.
In the further alternative to the claims in prayers 1 to 4E, 7 to 8A and 9, the plaintiffs claim in prayer 10 a declaration that Markela holds her title to and interest in the property on trust for the plaintiffs, with the plaintiffs' beneficial interest equivalent to the present value of one half of the property or, alternatively, the present value of one half of the property, with the property being valued as though it can be subdivided.
Prayer 10 of the Amended Statement of Claim contains the final claim for relief in respect of the proprietary estoppel claim, which is in the alternative to all of the preceding claims for relief. Prayer 11 claims equitable compensation.

Principles

The plaintiffs rely on the doctrine of proprietary estoppel by encouragement, which is a species of equitable estoppel.
The following elements of equitable estoppel identified by Brennan J (as his Honour then was) in Waltons Stores (Interstate) Ltd v Maher [6] provide guidance in the sense that, if those elements are not satisfied, "it would be necessary to think thoroughly about why not": [7] "… it is necessary for the plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise."
In relation to the fourth element, the Court of Appeal held in Kramer v Stone that actual knowledge of detrimental reliance by the plaintiff is not required in a case where the defendant's own positive encouragement has induced the plaintiff's assumption or expectation on which the proprietary estoppel claim is founded. [8]
In Slade v Brose, [9] the Court of Appeal confirmed that the elements of equitable estoppel formulated by Brennan J are not to be applied slavishly in every case. Ward P, with whom White and Stern JJA agreed, said: [10] "[200] However, it has been made clear that his Honour's elements are not to be applied in every case in a "mechanical fashion" (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P and Leeming JA agreed); DHJPM at [47]; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 615-616 (Priestley JA)). [201] In particular, the broader view reflected in the joint judgment of Mason CJ and Wilson J in Waltons Stores has prevailed (as recognised by White J, as his Honour then was, in Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717 (at [145]-[147]), affirmed on appeal in Doueihi). It is not necessary for a plaintiff to show that he or she assumed or expected that a "particular legal relationship" existed or would exist (see Doueihi at [153]-[170]). Nor is it necessary to show that the promise was irrevocable. It is unconscionability, rather than "ticking the box" of each of Brennan J's elements, which will be decisive (Doueihi at [166]-[167]) (see also Giumelli v Giumelli at 121). [202] True it is that there must be a careful identification of the nature of the assumption or expectation held by the plaintiff (to be assessed by reference to the circumstances of each case) (Doueihi at [186], citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 445; [1990] HCA 39; see also Thorner v Major at [56]) but the requirement of certainty for a representation or promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel. See Flinn v Flinn [1999] VSCA 109, where Brooking JA (with whom Charles and Batt JJA agreed) concluded (at [80]) that "a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined" (see also Delaforce at [55]; Evans v Evans [2011] NSWCA 92 (Evans v Evans) at [116], [121] (Campbell JA, with whom Giles JA and Sackville AJA agreed); DHJPM at [54]). [203] In Galaxidis, Tobias JA said (at [93]) that the representation or promise is sufficiently clear "if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely". See also the similar statement by Hodgson JA in Sullivan v Sullivan [2006] NSWCA 312 at [85] (McColl JA agreeing)."
In identifying the nature of the assumption or expectation held by the plaintiff, the focus is on the assumption or expectation that the plaintiff in fact held. The very purpose of the doctrine of equitable estoppel is to prevent unconscionable departure by the defendant from an assumption induced by the defendant that has in fact been adopted by the plaintiff. The doctrine does not look to preclude the defendant from departing from an assumption that a reasonable person in the plaintiff's position might reasonably have made, but that the plaintiff did not make. [11]
In Slade v Brose, Ward P referred to the distinction that has sometimes between drawn in practice between arms-length or commercial cases on the one hand, and domestic or family cases on the other hand, when assessing the adequacy of an assurance, or the reasonableness of an expectation or assumption. [12] By way of example, her Honour referred to DHJPM Pty Ltd v Blackthorn Resources Ltd, [13] in which Handley AJA said: [14] "[104] Estoppels by encouragement have been applied in a wide variety of factual situations. Most fall into one of two categories; those where the parties are in a domestic or family relationship, and those where the relationship is commercial. Parties in the latter category typically contemplate a legal relationship and frequently intend to enter into a contract or otherwise formalise their expectation. [105] In domestic or family cases, the parties are not at arm's length and usually have no intention of entering into a contract or formalising their expectation. The party encouraged will frequently expect to receive a gift, inter vivos or testamentary."
The following further observation made by Ward P in Slade v Brose is of particular relevance to the present case: [15] "[205] … the expectation reasonably derived from another's words and actions "need not depend on the words of a single conversation, but could arise from conduct over a period of time" (Evans v Evans at [107]). …"
As I have already mentioned, White and Stern JJA agreed with Ward P in Slade v Brose.
It is well established that the detriment that the plaintiff has suffered, or will suffer, if the defendant is permitted to resile from the representation or promise may be of a kind that "involves life-changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based". [16] As Ward P said in Kramer v Stone, "the concept of detriment in the context of proprietary estoppel is neither narrow nor technical". [17]

Consideration and determination

On the basis of Gina's evidence to which I have referred at [13]-[15] above, I find that Hrisoulis and Markela represented to Gina from the time she was a young girl in the 1970s that the area of land comprising the southern half of the property would one day be hers. I further find that Gina assumed and expected, based on those representations, that she would inherit that part of the property following the death of both of her parents. I reject the plaintiffs' pleaded contention that Hrisoulis and Markela represented to Gina during those years that she and Arthur would inherit the title to the whole of the property in equal half shares. [18]
I refer to Gina's evidence referred to at [22]-[35] above, and Kit's evidence referred to at [37] above. It is inherently unlikely that, when they prepared their affidavits in April 2023 and (in Gina's case) in July 2024, Gina or Kit had a reliable recollection of the precise terms of the statements that Hrisoulis and Markela made to them, or that Thea Nikki made to Gina, during the period between 1985 and 1991. [19] Kit gave evidence of only one conversation that he participated in with Hrisoulis, Markela and Gina during that period. Kit deposed that, during that conversation in early 1991, Hrisoulis and Markela asked them to live on the farm, and said: "It will be yours". [20] Notwithstanding that evidence of the conversation, Kit's evidence in cross-examination was to the effect that it was the southern half of the farm, not the whole of the farm, that was promised to Gina, or to him and Gina. The plaintiffs do not claim in these proceedings to be entitled to receive the whole of the property, either now or in the future. Kit's evidence of the terms of the conversation in early 1991 illustrates the unreliability of his recollection, which is entirely understandable given the passage of time.
Gina gave evidence of some conversations that she had with Markela during this period (without Hrisoulis, and without Kit) in which Gina recalls Markela saying to her that half of the farm "is yours anyway". [21] Gina also gave evidence of one conversation with Hrisoulis and Markela (without Kit) during which she recalls her parents urging her to come back to Australia to live and, saying that half of the farm "is yours". [22] Gina also gave evidence of another conversation with her parents during this period in which she recalls them saying to her that half of the farm "will be yours and Kit's". [23] Gina's evidence of her state of mind by early 1991 oscillates between an understanding that the property "was half mine", and an understanding that half of the property "would be mine and Kit's". [24] What is clear from Gina's evidence is that she had no understanding or expectation that half of the property would be hers, or hers and Kit's, except by way of inheritance following the death of the survivor of her parents. [25]
Kit's evidence relating to the period after 1991 includes several statements made to him by Markela or Hrisoulis that the southern half of the farm was "Gina's". [26] When referring to those statements in his affidavit, Kit made no mention of having been troubled by such statements, or of having challenged them at the time, on the basis that the southern half of the property had been promised not to Gina, but to Gina and himself. Moreover, Kit's objection to the transfer that was proposed in November 2021 was not that the property was proposed to be transferred to Arthur and Gina (omitting Kit), but that the transfer was proposed to be made to Arthur and Gina as tenants in common in unequal shares. [27] Those matters render it inherently improbable that Hrisoulis and Markela clearly represented to Gina, or to Gina and Kit, during the period between 1985 and 1991, that half of the property would be Gina and Kit's, as opposed to Gina's, if Gina and Kit moved to Australia to live on the farm. On the contrary, it is inherently probable that, during the discussions between Hrisoulis, Markela, Gina and (on occasions) Kit during the years from 1985 to 1991 about the possibility of Gina and Kit moving to Australia to live on the property, in the context of the promises that had been made to Gina earlier in her life that the southern part of the farm would one day be hers, Hrisoulis and Markela did not take care to distinguish between promising half of the property to Gina, and promising it to Gina and her husband. It is likely that they used language that was reasonably capable of being understood in both ways, and I so find. There was a clear promise to do something for the benefit of Gina, or Gina and Kit, in relation to the southern part of the property, even though the something promised was not precisely defined. [28]
On the basis of Gina's evidence referred to at [182] above and the matters referred to at [183] above, I find that it was not important to Gina or to Kit at the time whether the southern part of the property was promised to Gina, or to Gina and Kit. Indeed, this was not important to them at any time prior to at least 2022, when Kit prepared the document for Hrisoulis and Markela to sign stating that the land on which he and Gina had built their house had been gifted to "them" (that is, to Gina and Kit). [29]
On the basis of Kit's evidence of the matters referred to at [183] above, and his evidence in cross-examination that it was possible that the promise would be fulfilled by Hrisoulis and Markela gifting the southern half of the property to him and Gina in their wills, [30] I find that Kit did not assume or expect that the promise made during the period from 1985 to 1991 would be fulfilled prior to the death of both Hrisoulis and Markela. I find that this remained Kit's state of mind until approximately 2017, when he expected based on what was "indicated" to him at the time that he was involved in the preparation of the development application for subdivision of the property that the southern part of the property would be transferred to Gina, or to him and Gina, if development consent for the proposed subdivision were granted. [31]
For those reasons, I find that Gina and Kit decided to give up their settled life in Canada and move to Australia to live on the property with Hrisoulis and Markela in July 1991, expecting that the southern half of the property would be given to Gina, or to Gina and Kit, by inheritance when Hrisoulis and Markela died, and that this expectation had been induced by representations made by Hrisoulis and Markela during the period between 1985 and 1991, in the context of promises that had been made to Gina since the 1970s. The defendants do not suggest that Hrisoulis and Markela did not know that Gina and Kit moved to Australia in reliance on that expectation.
The "second representations" made in and from 1994 are pleaded in terms that encompass statements that the southern half of the property was "yours", and was "Gina's". [32] That accords with the evidence given by Gina and by Kit. [33] For the same reasons that I have explained above in relation to the "first representations", I find that, with the exception of the Deed of Family Arrangement that was signed in April 2009 which provided for "Gina's Lot" to be transferred to Gina following the death of the survivor of Hrisoulis and Markela if the property had been subdivided, the representations made by Hrisoulis and Markela in and after 1994 were in terms that did not clearly distinguish between a promise of the southern part of the property to Gina on the one hand, or to Gina and Kit on the other hand. I further find that this distinction was not important to either Gina or Kit at the time that the representations were made or, indeed, at any time prior to at least 2022 when Kit drafted a document for Hrisoulis and Markela to sign stating that the property on which Gina and Kit's home stood had been "gifted to them". [34]
Again, it is abundantly clear from Gina's evidence that she had no understanding or expectation that half of the property would be hers, or hers and Kit's, except by way of inheritance following the death of the survivor of her parents. [35]
It is also clear from Kit's evidence that he always understood and expected that one way in which the promises might be fulfilled was that the southern part of the property would be given to Gina, or to Gina and himself, under the wills of Hrisoulis and Markela. [36] That is subject only to the qualification that, from 2017, Kit understood and expected that, if the property was subdivided into the northern and southern parts, then the southern part of the property would be given to Gina and himself at that time. [37] That scenario did not eventuate.
Notwithstanding the evidence given by Gina and Kit to which I have referred above, [38] Counsel for the plaintiffs submitted that the representations made to them induced them to expect and assume that the southern part of the property was to be transferred to them at some time prior to the death of Hrisoulis and Markela. This was said to be consistent with the following objective facts: (1) Hrisoulis and Markela ceased living on the property and working the farm in 2001; (2) an application was made in 2017 for development consent to subdivide the property, with the consent and support of Hrisoulis and Markela; and (3) it was proposed to transfer the property to Arthur and Gina in November 2021.
I reject those submissions, which fail to grapple in any meaningful way with the substance of Gina's and Kit's evidence to which I have referred above.
I also reject the submission made by Counsel for the plaintiffs that I should attribute little weight to Gina's evidence in cross-examination because she was "obviously very affected in the witness box". To my observation, Gina gave her evidence in a robust, confident and articulate manner. She was, at times, emotional. But this did not detract from the clarity of her oral evidence at any time. Her emotion came from within, and was not reactive to the manner in which she was questioned. The cross-examiners asked questions of Gina in a careful, calm and patient manner. When I conveyed those observations to Counsel for the plaintiffs during closing submissions, he responded by submitting (inconsistently with his earlier submission) that Gina's evidence came from the heart, and that I should consider her to be a witness of truth. I agree, and I accept Gina's evidence that her assumption, at all times, was that the southern part of the property would be given to her, or to her and Kit, at some time in the future after both of her parents had passed away, under their wills.
I also reject the submissions made by Counsel for the plaintiffs that Markela's failure to give evidence, except to the limited extent referred to at [141] above, gives rise to a Jones v Dunkel inference that her evidence would not have assisted her defence of the plaintiffs' proprietary estoppel claim.
The rule in Jones v Dunkel is that a party's unexplained failure to call a witness permits an inference, not that the evidence that the witness could have given would have been positively adverse to that party, but that the evidence would not have assisted that party. [39] A party's failure to call a witness may also permit the court to draw with greater confidence any inference unfavourable to that party that is available on the evidence that is before the court, if the uncalled witness would presumably be in a position to cast light on whether the inference should be drawn. [40]
As Senior Counsel for Markela submitted, the rule in Jones v Dunkel is not engaged in relation to the terms of the representations and promises made to Gina, or to Gina and Kit, because there is no conflict between the evidence given by Gina and Kit in cross-examination about those terms, and about their expectations and assumptions, and Markela's defence of the proprietary estoppel claim, which calls for resolution by the drawing of an inference of a kind that the rule allows. To put it another way, the fact that Markela did not give evidence except by reading her three affidavits referred to at [141] above is not unexplained, having regard to the substance of the evidence elicited from Gina and Kit in cross-examination. For completeness, I note that the reading of Markela's three affidavits referred to at [141] - at the suggestion and with the consent of Counsel for the plaintiffs - opened the way for Markela to be cross-examined about any issue in the proceedings. It is perhaps telling that Counsel for the plaintiffs did not require Markela for cross-examination.
None of the events on which Counsel for the plaintiffs relied - Hrisoulis and Markela moving away from the property in 2001, the subdivision application in 2017, and the November 2021 transfer proposal - cause me to question the cogency of the direct evidence given by each of Gina and Kit in cross-examination about their assumptions and expectations from 1994 onwards, to which I have referred above. I repeat my observations at [175] above.
For all of those reasons, I find that Gina and Kit decided to move into the dongas on the southern part of the property in 1994, and made improvements to the southern part of the property from 1994 onwards at their own cost - including building their home in 2001 and making the payments for which they were liable in respect of the loan that they entered into to fund that construction in 2001, as refinanced in 2015 - expecting and assuming that the southern half of the property would be given to Gina, or to Gina and Kit, by inheritance when the survivor of Hrisoulis and Markela died. I find that this expectation and assumption was induced by representations made by Hrisoulis and Markela during the period from 1994 onwards, in the context of promises that had been made to Gina since the 1970s, and to Gina and Kit between 1985 and 1991. The defendants do not suggest that Hrisoulis and Markela did not know that Gina and Kit moved onto and improved the southern part of the property in reliance on that expectation and assumption.
Considered as a whole, the evidence indicates that it was not until about early 2022 that Gina and Kit began to hope that they, or Gina, might receive the southern part of the property, or a share in the whole of the property as tenants in common with Arthur, without having to wait until both of Gina's parents had passed away. For all of the reasons explained above in relation to the "first representations" and the "second representations", I find that this hope was not based on any representation or promise made by Hrisoulis or Markela. It was a hope that grew out of Gina's and Kit's desire from about early 2022 to retire, or to begin planning financially for their retirement, which they feel unable to do unless and until they can liquidate and realise the value of the home that they built on the southern part of the property and the land on which it is built, which has been promised to Gina, or to both of them, "one day" by way of inheritance. [41]
Hrisoulis and Markela have not resiled from the representations that I have found they made to Gina and Kit by "failing" to transfer the southern half of the property to Gina and Kit after they returned to Australia in July 1991, after they moved into the dongas in 1994, after they finished building their home on the southern part of the property in early 2002, after April 2009 when the Deed of Family Arrangement was signed, or at the time of the 2015 refinancing. [42] For the reasons that I have already explained, the representations that were made, understood in context, did not contemplate a transfer of the southern part of the property to Gina, or to Gina and Kit, at any time prior to the death of the survivor of Hrisoulis and Markela. Neither Gina nor Kit had any expectation or assumption, based on the representations that were made, of receiving the southern part of the property at any time prior to the death of the survivor of Hrisoulis and Markela. Markela is still living.
Hrisoulis and Markela did not resile from the representations that I have found they made to Gina and Kit by proposing a transfer of the property to Arthur and Gina as tenants in common in unequal shares in November 2021. [43] Viewed in the context of the Council's rejection of the subdivision application in 2017, [44] and the heat generated by Gina and Kit's demands that Arthur be prevented from borrowing against the security of the property and their unfounded assertions that Arthur had "removed our mortgage", [45] it is inherently probable that the transfer that was proposed in November 2021 above was an attempt to restore peace within the family by bringing forward the fulfilment of the promises that had been made insofar as it was possible to do so in circumstances where Hrisoulis, Markela, Gina, Kit and Arthur had been advised that there was no prospect of successfully appealing from the Council's rejection of the subdivision application. The evidence does not support any finding about the basis for Mr Prior's understanding that the property was intended to be transferred to Gina and Arthur as tenants in common in unequal shares. As I have observed earlier in these reasons, Mr Prior had not even taken initial instructions at the time that he recorded that understanding in the retainer letter dated 10 November 2021. [46]
Even if I had found that Mr Prior's understanding recorded in his 10 November 2021 letter was based on information received from Hrisoulis and Markela (and I make no such finding), I would have held that the proposal for the transfer to Gina and Arthur as tenants in common in unequal shares would have been one way of transferring to each of them an interest in the property as a whole that took into account the different improvements that each of them had made to what they had come to consider as their respective halves of the property, in circumstances where those improvements were affixed to and therefore formed part of the land, and the property could not be subdivided so as to facilitate a transfer to each of them of a geographical area comprising the relevant half of the property. For that reason, I would have rejected the plaintiffs' contention that Hrisoulis and Markela had resiled from the representations that I have found they made to Gina and Kit by proposing a transfer of the property to Arthur and Gina as tenants in common in unequal shares.
Hrisoulis and Markela did not resile from the representations that I have found they made to Gina and Kit by denying that Gina and Kit had a caveatable interest in the property, by opposing Gina and Kit's application to this Court for urgent interim relief extending the operation of the caveat that Gina and Kit lodged against the title to the property in February 2023, and by serving the lapsing notice in respect of that caveat in March 2023. [47] Viewed in the context of Gina's incomprehensible explanation to her parents of the reasons why she and Kit had lodged the caveat, the issue of the lapsing notice cannot reasonably be characterised as Hrisoulis and Markela resiling from the representations that I have found they made. It is clear from Gina's evidence of her explanation, and her parents' reaction to it, that Hrisoulis and Markela had been told that the purpose of the caveat was to stop Arthur from borrowing further against the security of the property, and that Hrisoulis and Markela did want Gina and Kit to be able to stop Arthur. The wide terms of the undertaking given to the Court by Hrisoulis and Markela on 5 April 2023 are entirely inconsistent with them intending to deal with the property in any way that was inconsistent with the representations that I have found that they made to Gina, or to Gina and Kit. Indeed, the undertaking went further than was necessary to adhere to the expectations and assumptions which I have found those representations induced Gina and Kit to make, by precluding Arthur from borrowing further against the security of the property, except by drawing on an existing overdraft facility, pending the determination of these proceedings. The opposition to the extension of the caveat on that occasion was coupled with the giving of that undertaking to the Court. [48] In circumstances where the caveat had not been extended, and the undertaking given to the Court by Hrisoulis and Markela remained on foot, the steps that were then taken to cause the caveat to lapse were not inconsistent with the representations that I have found were made by Hrisoulis and Markela. The fact that Hrisoulis and Markela did not oppose Gina and Kit's subsequent, unnecessary application for leave to lodge a fresh caveat pursuant to s 74O of the Real Property Act provides further support for that conclusion. I reject the plaintiffs' contention that Hrisoulis and Markela breached the undertaking by causing the caveat to lapse. This did not constitute a dealing with the property. [49]
Hrisoulis and Markela did not resile from the representations that I have found they made to Gina and Kit by failing to sever their joint tenancy of the property, which resulted in the property passing to Markela by right of survivorship on Hrisoulis' death on 14 June 2023. [50] Putting to one side the "indications" that Kit says were given to him about what might have happened if the property had been able to be subdivided [51] - a scenario which did not eventuate - the representations made by Hrisoulis and Markela did not induce Gina and Kit to expect or assume that the southern half of the property would be theirs other than by way of inheritance following the death of the survivor of Hrisoulis and Markela, as I have explained above. The passing of Hrisoulis' interest in the property to Markela by right of survivorship was entirely consistent with Gina's and Kit's expectations and assumptions induced by the representations.
Hrisoulis did not resile from the representations that I have found he and Markela made to Gina and Kit by making his last will dated 8 June 2023, in which he gave the whole of his estate to Markela absolutely and, in the event that Markela pre-deceased him, he gave the property to Arthur to be held on trust for Gina as to 30.46% and for Arthur as to the remainder. [52] As I have said above, the passing of Hrisoulis' interest in the property to Markela if she survived him was entirely consistent with Gina's and Kit's expectations and assumptions induced by the representations made by Hrisoulis and Markela over many years. Viewed in context, it is inherently probable that the alternative gift of the property to Arthur on trust for himself and Gina was an attempt to adhere to those representations insofar as it was possible to do so in circumstances where Arthur had made more extensive improvements to the northern half of the property than Gina and Kit had made to the southern part of the property, and it was understood that it would not be possible to subdivide the property into "Gina's Lot" and "Arthur's Lot". In any event, neither the gift of the property to Markela, nor the alternative gift to Arthur on trust for himself and Gina, under Hrisoulis' will was effective. The property passed to Markela by right of survivorship.
Markela has not resiled from the representations that I have found she and Hrisoulis made to Gina and Kit by making her last will dated 5 September 2023. As Gina and Kit each acknowledged in cross-examination, Markela's will has the effect of giving Gina the full value of the southern half of the property by way of inheritance. [53] Contrary to the submissions made by Counsel for the plaintiffs, it is clear from clause 3 of Markela's will, read as a whole, that the references in clause 3.1(b) to the "value of 'Arthur's Lot'", the "value of 'Gina's Lot'", and the "value of 'Arthur's Lot' and 'Gina's Lot'", are references to the values as determined by a registered valuer in accordance with clause 3.1(a) of the will. I reject the submission that the word "value" in clause 3.1(b) of the will means "financial contributions". The gift of the value of the southern half of the property to Gina under Markela's will is entirely consistent with the representations that I have found were made, in circumstances where the property cannot be subdivided. [54] Whilst it is understandable that Gina and Kit are distressed and offended that Kit is not mentioned in Markela's will, whereas Arthur's wife is mentioned, that distress and offence does not give rise to any cause of action.
Questions of detriment do not arise. The plaintiffs have failed to establish any unconscionable departure from the representations that I have found were made, and the expectations and assumptions that I have found Gina and Kit held. The plaintiffs' claims for relief based on the doctrine of proprietary estoppel must therefore be dismissed.

Family provision claim

In circumstances where the proprietary estoppel claim is to be dismissed, Gina presses her claim for a family provision order in respect of the estate of Hrisoulis.
This claim received no attention in the submissions made by Counsel for the plaintiffs, other than a reference to Gina's evidence that she would be assisted by a legacy that would enable her to repay some or all of her debts, a capital fund that could be invested to provide a modest retirement income, and a capital fund for contingencies. When pressed to clarify the nature and quantum of the claim in closing submissions, Counsel for the plaintiffs described it as a claim for "the southern half of the farm" or a "substantial legacy". Markela, representing the estate of her late husband in these proceedings, submitted that no order for provision should be made.
If the Court is satisfied that Hrisoulis' will does not make adequate provision for the proper maintenance, education or advancement in life of Gina, then the Succession Act 2006 (NSW) gives the Court an evaluative discretion to make such order for provision out of his estate as the Court thinks ought to be made for Gina's maintenance, education or advancement in life. [55]
In determining whether to make a family provision order in favour of Gina, and the nature of any such order, the Court may consider a wide range of matters, including: [56] 1. the nature of the relationship between Gina and Hrisoulis; 2. the nature and extent of any obligations or responsibilities owed by Hrisoulis to Gina, to Arthur, and to Markela; 3. the nature and extent of Hrisoulis' estate; 4. the financial resources of Gina and Kit; 5. Gina's age; 6. Gina's contribution to Hrisoulis' estate and to his welfare; 7. any provision that Hrisoulis made for Gina during his lifetime; 8. Hrisoulis' testamentary intentions; and 9. any other matters that the Court considers relevant.
There is no dispute that Gina had a good and close relationship with Hrisoulis, and that she was a dutiful daughter to him, helping out on the property in her younger years when he and Markela were operating the fruit and vegetable orchard and chicken farm, and contributing to his welfare as he aged.
Hrisoulis had obligations not only to Gina, but also to Markela with whom he acquired and developed the property from the 1970s until 2001, and to Arthur to whom he and Markela made promises in relation to the northern part of the property equivalent to the promises that were made to Gina in relation to the southern part of the property. Hrisoulis' interest in the property having passed to Markela as the suriving joint tenant, his estate has no material assets. His interest in the property is the only asset in respect of which a notional estate order might be made. [57]
Gina's evidence emphasised that, apart from a gift of $10,000 that her parents made to her in May 1985 when she married Kit, Hrisoulis did not make any other significant gifts of money or other property to her during her lifetime. This overlooks the significant contribution that Hrisoulis, together with Markela, made during his lifetime to Gina's maintenance and advancement in life by permitting Gina and her family to live on the southern half of the farm and to build a home their without purchasing that land, and by guaranteeing the loan that Gina and Kit required to build that home, all the while promising that Gina, or Gina and Kit, would receive the southern half of the farm by way of inheritance after the death of the survivor of Hrisoulis and Markela. For the reasons that I have already explained, Hrisoulis has never resiled from that promise, and the provisions of his last will are consistent with those promises. Under Markela's will, which she has undertaken not to revoke or vary, Gina will receive the value of the southern half of the property that has been promised to her by way of inheritance.
Those contributions that Hrisoulis and Markela made to Gina's maintenance and advancement in life during Hrisoulis' lifetime, and that Markela continues to make, have facilitated Gina and Kit building a home for their family in a beautiful rural setting, without the financial burden of acquiring the valuable land on which that home stands. The value of that land will pass to Gina by way of inheritance when Markela passes away, consistently with the promises made to her by Hrisoulis and Markela over many years.
I have considered Gina's evidence about her and Kit's assets and liabilities, income and expenditure. On the face of it, that evidence paints a picture of a net liabilities and a deficiency of income compared to expenses. However, as I have observed earlier in these reasons, the evidence of income is limited, and the evidence of the value of Gina and Kit's assets is deficient in that it fails to address the value of the business operated by Auscan International as trustee of the Hildebrandt Family Trust of which Gina and Kit are the beneficiaries. [58]
In her affidavit sworn on 2 July 2024, Gina did not identify any pressing financial needs. As I have already mentioned, Gina gave evidence that she would be assisted by a legacy that would enable her to repay some or all of her debts, a capital fund that could be invested to provide a modest retirement income, and further capital fund or nest egg "for a rainy day".
In the present case, I have accepted Gina as an honest witness, and I do not regard the deficiencies in her evidence about her and Kit's financial position as a deliberate withholding of evidence. Nor do I infer that it would have unfavourable to Gina's claim to adduce evidence of the matters that have been omitted. Nevertheless, Gina bears the onus of demonstrating that adequate provision has not been made for her proper maintenance and advancement in life. [59] That onus is not discharged by Gina's deficient evidence of her and Kit's financial position, absent of any evidence of immediate or short-term financial needs, considered in the context of the contributions I have described above that Hrisoulis made to Gina's maintenance and advancement in life during his lifetime and the long-standing promises that he and Markela made to Gina to further provide for her following their deaths, which promises will be fulfilled under Markela's last will which she has undertaken not to revoke or vary. As Senior Counsel for Markela submitted, those contributions made during Hrisoulis' lifetime were, and continue to be, significantly beneficial to Gina. The promised inheritance under Markela's will, consistent with the long-standing arrangement between Hrisoulis, Markela, Gina and Arthur, will be of further significant benefit to Gina. That arrangement is a highly relevant factor in the determination of Gina's family provision claim. [60] My evaluative judgment is that, taking all of those matters into account, Hrisoulis' last will made adequate provision for Gina's proper maintenance and advancement in life by giving his interest in the property to Markela (who received it by right of survivorship in any event), consistently with that long-standing arrangement to which Markela has bound herself to adhere by her undertakings given to the Court in these proceedings. [61]
Gina's family provision claim must be dismissed for those reasons.

Conclusion and orders

For all of the foregoing reasons, the Court makes the following notations and order: 1. Note the undertakings given by the second defendant to the plaintiffs and to the Court: 1. that the second defendant will not revoke or amend her will made on 5 September 2023, and will not make a new will; and 2. that the second defendant will not enforce to take any steps to enforce against the first plaintiff and the third defendant, or either of them, the Deed of Family Arrangement executed by the second defendant, the second defendant's late husband, the third defendant and the first plaintiff in April 2009. 1. Note the undertaking given by the third defendant to the plaintiffs and to the Court that, provided that the second defendant does not alter her will made on 5 September 2023, the third defendant will take no steps to enforce the Deed of Family Arrangement executed by the second defendant, the second defendant's late husband, the third defendant and the first plaintiff in April 2009. 2. Proceedings dismissed.
I will hear the parties in relation to costs.

Endnotes

[REDACTED].
See [52] above.
See [96] above.
See [28], [35] and [51]-[52] above.
See [148] and [151] above.
(1988) 164 CLR 387 at 428-429; [1988] HCA 7.
Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [78] (Ward P), referring to Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 at 615-616 (Priestley JA) and Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [166] (Gleeson JA, with whom Beazley P, as Her Excellency then was, and Leeming JA agreed).
[2023] NSWCA 270 at [97]-[105] and [191]-[200] (Ward P) and [278]-[295] (Leeming JA) and [296] (Kirk JA agreeing with Ward P and Leeming JA).
[2024] NSWCA 197.
Ibid at [200]-[203].
The first and second element of Brennan's J's formulation in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7; see also Kramer v Stone [2023] NSWCA 270 at [88] (Ward P, Leeming and Kirk JJA agreeing) and at [293] (Leeming JA).
Slade v Brose at [204].
(2011) 83 NSWLR 728; [2011] NSWCA 348.
Ibid at [104]-[105]. These observations were made in the course of his Honour's reasons for agreeing with the orders proposed by the other members of the Court.
Slade v Brose at [205].
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [34] (Nettle JA, as his Honour then was), cited with approval in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [84] (French CJ, Kiefel, Bell and Keane JJ).
[2023] NSWCA 270 at [95]-[96] (Leeming and Kirk JJA agreeing).
See [147] above.
I refer to the well-known observations of McLelland CJ in Eq concerning the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 and to the observations of Davies J in Nominal Defendant v Cordin [2017] NSWCA 6 at [169]-[171], which were referred to with approval by Bell P (as the Chief Justice then was) with whom Leeming JA and Emmett AJA agreed in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77].
See [37] above.
See [22] and [26] above.
See [30] above.
See [31] above.
See [33]-[34] above.
See [28] and [35] above.
See [42], [54], [58] and [89] above.
See [97]-[100] and [116] above.
Slade v Brose at [202] (extracted at [174] above).
See [102]-[103] above.
See [53], [58] and [116] above.
See [95] above.
See [150] above.
See [41]-[45], [51]-[54], [58]-[59] and [89] above.
See [102] above.
See [28], [35] and [51]-[52] above.
See [53]-[54] above.
See [95] above.
See [188]-[189] above.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (Kuhl) at [63]-[64] (Heydon, Crennan and Bell JJ); Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165]-[167] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), [232] (Heydon J).
Kuhl at [63] (Heydon, Crennan and Bell JJ).
See [101] and [138]-[139] above.
See [154(1)] above.
See [154(2)] above.
See [93]-[95] above.
See [96] and [107] above.
See [97]-[100] above.
See [105]-[109] and [154(3)]-[154(4)] above.
See [112] above.
See [113]-[114] above.
See [154(5)] above.
See [95] above.
See [119] and [154(6)] above.
See [124]-[131] and [154(7)] above.
See [183]-[184] and [187] above.
Succession Act 2006 (NSW), ss 57(1)(c) and 59; Megerditchian v Khatchadourian [2020] NSWCA 229 at [52] (Payne JA, Macfarlan JA and Emmett AJA agreeing).
Succession Act 2006 (NSW), s 60.
See [142] above.
See [132]-[137] above.
See, for example, Blendell v Blendell [2020] NSWCA 154 at [28]-[29] (Meagher, Gleeson and Leeming JJA); Megerditchian v Khatchadourian [2020] NSWCA 229 at [36] (Payne JA, Macfarlan JA and Emmett AJA agreeing).
Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176 at [18] (Brereton J, as his Honour then was, Basten JA and Handley AJA agreeing); see also Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [112] (Brereton JA).
Megerditchian v Khatchadourian [2020] NSWCA 229 at [33] and [52] (Payne JA, Macfarlan JA and Emmett AJA agreeing), and the authorities there referred to.

Amendments 19 September 2024 - Representation Solicitors changed from Shanahan Tudhope Lawyers (First and Second Defendants) to Maria Mak (First and Second Defendants) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024

Succession Act 2006(NSW)ss 57(1)(c), 59, 60

Trustee Act 1925(NSW)ss 71, 76

(2023) 112 NSWLR 564

(2019) 100 NSWLR 218

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