Isin v Ozen

The Claims

1. On 4 November 2015, the Plaintiffs filed an amended Statement of Claim. On 17 December 2015, the Defendant filed her Defence to the amended Statement of Claim.
2. In broad summary, as those pleadings were constituted at the hearing before me, Durcan and Ertunc sought a declaration to the effect that the legal title to the estate in remainder in the Property was held, as at 5 March 2013 (the date of death of Erdinc), by Ertunc and Erdinc, on trust for Durcan, and that it continued to be so held by Ertunc and by Seda, as Erdinc's legal personal representative. They also sought consequential relief to enable the Property to be registered in the sole name of Durcan. Finally, they sought costs of the proceedings.
3. Seda denied that Erdinc held the Property on trust as alleged. She asserted that the Amended Statement of Claim should be dismissed. However, she did not dispute that Ertunc holds his share of the Property on trust for Durcan. Nor did she deny that Durcan has a life interest in the Property pursuant to a Deed dated 20 June 2012, which life interest has been registered on the title to the Property.

The Credibility and Reliability of the Witnesses

1. Each of Durcan's and Seda's affidavits bore an attestation that it had been affirmed through an accredited professional interpreter and each of the interpreters swore affidavits, read in the proceedings, upon which each was not cross-examined. Each also gave her oral evidence, at the hearing, through an interpreter.
2. Initially, there was skirmishing between the legal representatives about some of the peripheral aspects of the conduct of one, or other, of the parties, following the death of Erdinc. Although some of the affidavit evidence was said to be relevant to issues of credit, and was admitted on that basis, the legal representatives realised, sensibly, that there were really very few, if any, such issues. Indeed, the essential facts giving rise to the claims and to the defence of those claims were really not in dispute.
3. Furthermore, there are many contemporaneous documents, the authenticity of which is not disputed. Accordingly, as Black J has recently repeated in Coyte v Norman; Centre Capital (Newcastle) Pty Ltd v B Scorer [2016] NSWSC 1242 at [9]: "…the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness's motives and the overall probabilities".
4. In respect of some of the conversations relied upon by each of the parties, which are conversations with Erdinc, who is now deceased, Seda's counsel reminded the Court that it was important to remember the principle expressed by Bryson AJ in Zahra v Francica [2009] NSWSC 1206 at [1] - [2]: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]: "... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available." A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson , see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities."
5. Counsel also referred to what Bryson J had said in Day v Couch [2000] NSWSC 230 at [9]: "Where a claim is made against the estate of a deceased person and knowledge of the facts on which the claim is based is no longer available to the legal personal representative of the deceased, judicial experience requires a careful approach to fact-finding, although there are no special rules relating to the burden or to the standard of proof: "[I]n cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue": Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 at 548-549 per Isaacs J. In Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, which related to mutual wills, there were also expressions of caution: see per Latham CJ at 674 and Dixon J at 681-682. See too Grundel v The Registrar General (1990) BPR 97-340 at 11,219 per McLelland J. These observations do not establish any legal standard of proof differing from the ordinary civil standard relating to the balance of probabilities, and there is no legal requirement for corroborative evidence."
6. I have borne these principles in mind in my consideration of the conversations involving Erdinc. I have also borne in mind that a number of the conversations asserted by one, or other, of the parties was unwitnessed by any independent third party, with the result that there is no corroboration of them. Indeed, I am satisfied that a number of the conversations relating to Erdinc's reluctance to transfer the Property, as asserted by Seda, are consistent with other evidence.

Background Facts

1. It is convenient to set out the facts that are really not in issue. These facts are taken from admissions made in the pleadings, from the Plaintiffs' written outline of final submissions (which were referred to during oral submissions by counsel for Seda), and otherwise from the evidence. On occasion, I have specifically dealt with any submission made in regard to the undisputed evidence.
2. In this section, I shall also identify a number of family members who are witnesses in the proceedings.
3. Durcan was born in Ankara, Turkey, in September 1949. She grew up in a village near Ermenek in Turkey. She attended primary school until the age of 11 years and did not go to school after that. Between the ages of 11 and 16 years, Durcan stayed at home, mostly helping her mother.
4. Durcan married Bayram Ozen, in Turkey in June 1965. She was then aged 16 years. He was born in Turkey in September 1945 and was then aged 20 years.
5. There were six children of their marriage, but only three survived infancy. They were Ertunc, who was born in December 1970, Erdinc, who was born in February 1972, and Erdal, who was born in June 1981, in Australia.
6. The family migrated to Australia in May 1974. Following their arrival, Durcan obtained factory work, and, later, did sewing work at home. For a short period, in the 1980s, she worked in a take away food business owned by Bayram.
7. In about 1993, Bayram, who was a director of a travel agency business, which was conducted through a company, Cumberland Travel Agency Pty Ltd, started having financial problems. In the search records that form part of the evidence, Durcan was also identified as a director of that company. Each is shown as having been a director between March 1988 and July 1995. Durcan is also shown as having been the secretary of the company for the same period. Bayram held 24,999 fully paid ordinary shares in the company and Durcan held one fully paid ordinary share.
8. Durcan stated that she had played no part in the conduct of the company's business and that Bayram had never discussed the business with her. She also gave evidence, which was not challenged, about her understanding of the meaning of "a company", a "share", a "director", and a "company secretary". It is clear from her evidence that she had little, or no, comprehension of any of the duties, or responsibilities, required in the roles she was said to hold in the company conducting the business. She also said that Bayram had asked her to sign documents "so that he could get money from the bank for the business" and that she did so.
9. I am satisfied that Durcan was not financially sophisticated and that she trusted, and relied on, Bayram in relation to financial and business matters during the period of cohabitation. Counsel for the Plaintiffs accepted "it was clear from her evidence that [Durcan] understood that [Bayram] was borrowing against the house but that she was unaware that she had personally guaranteed the debts of Cumberland Travel".
10. However, this does not mean, when it came to the events which followed the breakdown of her marriage, that Durcan was unable to comprehend what was being told to her by her sons, or by solicitors who gave her advice. (As will be demonstrated, there was litigation involving Bayram which Durcan commenced and, on one occasion, a solicitor attended at her home and gave her advice about the Deed to which reference will be made later in these reasons. Furthermore, it is to be noted that Durcan does not seek to rely upon a lack of understanding and makes no claim to set aside the Deed.)
11. In 1990, Durcan and Bayram appear to have given a guarantee, secured by mortgage granted in 1988, to the ANZ Banking Group Limited, in relation to the debts of the travel agency.
12. By 1994, the travel agency business had failed. It was insolvent and the ANZ Bank commenced proceedings seeking possession of the Property.
13. In September 1994, Bayram announced to the family that he was bankrupt. Shortly thereafter, he presented a Debtor's Petition to the Official Receiver under Part IV, Div. 3, of the Bankruptcy Act 1966 (Cth). He was discharged from bankruptcy, by operation of law, in October 1997.
14. Durcan also presented a Debtor's Petition to the Official Receiver under Part IV, Div. 3, of the Bankruptcy Act 1966 (Cth) in October 1994. She, too, was discharged from bankruptcy, by operation of law, in October 1997.
15. (Throughout the proceedings, Durcan, apparently, had not remembered that she had presented a Debtor's Petition or that she had been made bankrupt until it was raised when the matter was before Kunc J. That she was aware of the bankruptcy, at least in May 1995, is evidenced by a copy letter dated 12 May 1995 addressed to the Official Receiver, the first line of which acknowledges that "I am presently bankrupted": Ex. 2. In my view, nothing turns on her lack of recollection.)
16. Bayram and Durcan separated in January 1995. He left the Property in 1996, and the Family Court of Australia at Parramatta granted a decree nisi of dissolution of their marriage in October 1997. The decree nisi became absolute in November 1997.
17. Between 1997 and 2002, Durcan went to Court on a number of occasions seeking child support and spousal maintenance from Bayram. Two documents that she filed in those proceedings, to the contents of which I shall later refer, were tendered in evidence and relied upon in these proceedings.
18. In December 2002, Durcan and Bayram had a property settlement, as a result of which Durcan received $34,339. I am satisfied that she gave the money that she had received to Erdinc. There is a copy of the deposit slip dated 2 December 2002, for that amount (Ex. A/4) into Erdinc's bank account.
19. Erdinc did not tell Seda, after their marriage, that Durcan had done this.
20. (Although Durcan stated that she said to Erdinc that the amount paid was to be used as a contribution to the debt secured by mortgage on the Property, there is no corroborating evidence of this statement. Nor is there any document to suggest, if it was said by her, that Erdinc had done so.)
21. Bayram died in late 2012.
22. Between about 1991 and September 1997, Erdinc had been in a de facto relationship with Susan Maree Alcock. There was one child of the relationship, Yasemine Isabelle, who was born in November 1996. There is some evidence that there was little, if any contact, between her and Erdinc following the termination of the de facto relationship.
23. Seda was born in Turkey in 1978. She met Erdinc in October 2004. They married in December 2004 and she remained married to him until his death. After their marriage, Seda worked in a factory in Rydalmere and Erdinc continued to work for the NSW Police Force. He sustained an injury in June 2009 and ceased employment in late September 2011. At the time of his retirement, he had attained the rank of Detective Sergeant.
24. As stated, Erdinc died in March 2013. He died intestate. This Court granted Letters of Administration, in respect of his estate, to Seda, on 23 November 2013.
25. Seda described Erdinc as a man who would not get upset easily; a man who could not be easily bullied; and someone who would do things so as to avoid worrying the people around him.
26. Ertunc is married to Kylie Jane Ozen. They have been married since 2001. She gave evidence in the proceedings but was not cross-examined on her affidavit.
27. Erdal was cross-examined. I shall return to his evidence later in these reasons. He is in a relationship with Ewelina Czajkowska. She is Polish. She speaks English well, but does not speak, or understand, Turkish. She gave evidence of a number of matters and she, too, was cross-examined, albeit extremely briefly.
28. Ms Buse Komuksu is a solicitor who gave evidence in the proceedings in the Plaintiffs' case. She was not cross-examined on her affidavits. She was an employed solicitor who had conduct of the conveyancing file in relation to the proposed transfer of title to the Property by Ertunc and Erdinc to Durcan.
29. Mr J Restuccia is a solicitor who gave evidence in the proceedings in Seda's case. He was cross-examined, briefly, on his affidavit.

The Property

1. The following facts, to the extent that they are in dispute, should be regarded as the findings of the Court. The facts to which I shall refer relate to the Property and to the events that occurred. I have drawn heavily on admissions made in the pleadings and on the contemporaneous, and other, documents relied upon.
2. Bayram and Durcan purchased the Property in February 1980. The consideration shown on the Transfer of the Property to them was $43,300. The land purchased is land under the Torrens system. The transfer of the title of the Property into their names, as joint tenants, was registered in March 1980.
3. A copy of the Certificate of Title of the Property reveals that there was a mortgage to S & C No 86 Co-operative Building Society Ltd registered on title on 18 March 1980. (It also reveals that another mortgage, to CBFC Limited, was registered in April 1980, a mortgage and a caveat, in favour of the ANZ Banking Group Limited, registered in February 1985, a mortgage to the ANZ Banking Group Limited registered in November 1985, another mortgage to the ANZ Banking Group Limited registered in March 1988 and a mortgage to AMEV Finance registered in June 1988. Each of these mortgages was discharged.)
4. Both before and after the dissolution of her marriage, Durcan lived, and she continues to live, in the Property.
5. In about September 1994, Bayram and Durcan agreed to sell, and Ertunc and Erdinc agreed to purchase the Property. The Transfer, signed by each of Bayram and Durcan, dated 5 October 1994, was subsequently registered. The purchasers were shown to be Ertunc and Erdinc, holding the Property as tenants in common in equal shares. The consideration was shown on the Transfer to be $110,000.
6. As at September 1994, there was a mortgage in favour of the ANZ Bank registered on the title to the Property. A copy of an historical title search reveals that this mortgage was discharged on 11 October 1994. A copy of the Discharge of Mortgage, dated 28 September 1994, is in evidence although the precise amount secured by the mortgage, at the date of its discharge, is not disclosed in the evidence.
7. (Bayram had obtained a valuation of the Property in July 1994, which showed a value of $110,000. Subsequently, the ANZ agreed to accept that amount in satisfaction of its claim and proceedings against Bayram and Durcan were settled for that amount.)
8. The transfer of the Property by Bayram and Durcan to Ertunc and Erdinc, was completed in order to avoid its sale by the mortgagee and to ensure that Durcan's accommodation remained secure. It is said that they wanted to save the Property "for her". At this time, however, the whole family was living in the Property. (Ertunc moved out in about 1996 as did Bayram.)
9. The purchase price was financed, in part, by a loan of $96,500 to Ertunc and Erdinc from the Advance Bank Australia Ltd. It is not clear how the remaining $13,500 was funded. There was a mortgage, dated 5 October 1994, granted by Erdinc and Ertunc, in favour of the Advance Bank, subsequently registered on 11 October 1994 on the title of the Property. (It is likely that the amount borrowed was used to repay the debt secured by the mortgage, granted by Bayram and Durcan, which had been registered on the title to the Property.)
10. At the hearing, it was not disputed that Ertunc and Erdinc held the legal and beneficial title to the Property after its purchase and until late 2011. Indeed, counsel for the Plaintiffs accepted that there was no claim that between 1994 and 2011, the Property was held in trust for Durcan: T158.32 - T158.35; T158.49 - T159.00. (Whether they did so after late 2011, is in dispute between the parties.)
11. Despite the concession, counsel for the Plaintiffs maintained that Ertunc and Erdinc had evinced a clear intention to purchase the Property for Durcan. I am satisfied, however, that each of them considered that Ertunc and Erdinc held the legal and beneficial ownership of the Property and that the Property was purchased by them to ensure that she was not homeless.
12. As Ertunc stated in his affidavit: "Our father suggested that the only way we could save the family home was for Dinc and me to take over the mortgage debt. Dinc and I had a discussion and agreed to talk with the bank to see if we could take over the mortgage. I do not recall precisely everything that was said, but I do recall that we said words to the following effect: Dinc: "What you think we should do?" Me: "If we want to stop Mum from being homeless, we really don't have many options".
13. The concession made and my conclusion is supported by a number of documents. In an Application for Maintenance, filed 2 May 1997, in the Family Court of Australia at Parramatta, on behalf of Durcan (Ex. 4), she did not disclose her ownership of any real estate, or make any reference to a "home loan". In a Financial Statement dated 19 November 1999 (Ex. 5), filed in the Family Court of Australia at Parramatta, again she did not disclose her ownership of any real estate or make any reference to a "home loan".
14. In 1997, Ms Alcock commenced proceedings in the Family Court of Australia, Brisbane Registry, for the adjustment of property interests pursuant to s 20 of the De Facto Relationships Act 1984 (part of Ex. 1) against Erdinc. Those proceedings were contested by him (part of Ex. 1). In his Financial Statement dated 27 January 1998, filed in those proceedings, Erdinc included, as part of the property/assets that he owned, or in which he had an interest, a "50% ownership" of the Property ($50,000). He also stated there was a debt, secured by mortgage on the Property, his liability for 50 per cent of which was $45,225.
15. I have reached my conclusion despite the fact that each of the Plaintiffs gave evidence that Durcan said to her three sons, at this time, that when she died she wanted the Property to be divided equally between them and that Ertunc and Erdinc agreed.
16. Returning to the narrative, in 2000, Ertunc and Erdinc arranged for the debt secured by the mortgage on the Property in favour of the Advance Bank to be refinanced. A mortgage dated 29 November 2000, in favour of the National Australia Bank Limited, secured an initial debt of $90,000. However, the amount secured by that mortgage, as at December 2000, was disclosed to the Office of State Revenue, to be $184,000.
17. Both Ertunc and Erdinc borrowed additional funds for uses unconnected with the Property. For example, each borrowed money using the Property as security to purchase his own home.
18. Ertunc gave evidence that prior to each occasion he had sought, and obtained, Durcan's consent, to do so. Ertunc and Erdinc did not seek permission from each other for the borrowings.
19. The debt secured by the mortgage to the National Australia Bank Limited seems to have been repaid, because there is in evidence a discharge of that mortgage dated 16 September 2004. On 16 August 2004, however, Ertunc and Erdinc granted a mortgage to the St George Bank Limited. The amount then secured by the mortgage was disclosed to the Office of State Revenue to be $92,000.
20. After 1996, Durcan enjoyed uninterrupted sole possession of the Property. She had unfettered responsibility for the payments of outgoings on the Property, although Ertunc and Erdinc did pay some of those outgoings. It is not suggested that they did so other than to assist her. There is no evidence that either interfered with Durcan's occupation, control, or use, of the Property.
21. Between about December 2002 and January 2003, Durcan made improvements to the Property. Although there was a dispute about the costs of the improvements, Durcan gave evidence that the total amount spent was about $9,200. There is no evidence that she committed her own time and labour to carrying out the improvements.
22. Both Ertunc and Erdinc were made aware that she had made those improvements and made no objection.
23. In addition, she gave evidence of having made a number of payments into the Loan Payment Account at the Advance Bank between 2 May 1997 and 13 November 1997 and one payment on 2 November 1998 (a total of $4,130); having paid the council rates at various times ($6,366); some insurance premiums ($2,686); and also some water rates ($387). (I have omitted the reference to cents.)
24. Durcan made gifts of money to each of Ertunc and Erdinc to assist with the purchase of his own home. In 2006, financed by the sale of an investment property in Turkey, she gave $25,000 to each of them. (Again, it was suggested that the amount gifted was in order to reduce the mortgage on the Property. However, there was no corroborating evidence to support the conversation or that either used the amount received for that purpose.)
25. As at November 2011, the mortgage in favour of the St George Bank remained registered on the title of the Property. However, the mortgage debt, as at 16 December 2011, was $1,872.91. Unsurprisingly, the registered mortgagee had retained the Certificate of Title to the Property.
26. (The debt secured by the mortgage was not repaid at that time. As at 29 May 2012, when it was repaid by Ertunc, the amount owing had increased to $2,298. However, that amount was disclosed as including the registration fee for the discharge of the mortgage ($99) and what is described as "registration fee for life estate" ($199) to which "life estate" reference will be made later in these reasons.)
27. There is no suggestion that Durcan paid Ertunc and Erdinc any rent or occupation fee.
28. In September 2011, Erdinc, at the age of about 39 years, retired from the Police Force due to a disability. By then, he and Seda had an infant son, who was about 6 weeks old. He held his interest in their matrimonial home jointly with Seda. They had total joint savings of less than $300,000.

Circumstances of the 2011 Transfer

1. In late 2011, Durcan asked Ertunc and Erdinc to transfer the legal title to the Property into her name. There were a number of conversations about this, none of which are of particular significance. It seems to be not in dispute that the genesis of her request was that a close friend of Durcan had told her that if something happened between any of her children and his spouse, she could be left without a home as the Property was not in her name. Durcan stated to her two sons that she did not want to take that risk.
2. Durcan gave evidence that Ertunc and Erdinc both replied affirmatively and that each said, as did Seda, words to the effect "this is your house".
3. Following the conversations, Ertunc sent an email dated 3 November 2011, in the following terms to Mr Koyuncu at MCK Lawyers: "Hope all is well. I caught up with Ozenc and Buse on Friday, as you know. I was speaking with Buse and she tells me that you do conveyancing matters. If so, I would like to engage your firm to do a conveyance for me. My brother and I want to transfer our jointly owned property to our mother. The debts have all been paid off (I think I owe about $1500 - but this can be paid as part of the conveyance). We do not want to get any payment for the house as it is a gift to mum, but we understand that the Government will charge us stamp duty regardless. Can you advise what your costs will be, and how much stamp duty we might expect to pay? I can provide some details to you now: [sic]: Ertunc Ozen & Erdinc Ozen Purchaser: Durcan Isin Address: xxxxx Seven Hills Please let me know what you need me to do, and of course send me a costs agreement."
4. Mr Koyuncu responded to Ertunc by letter dated 14 November 2011, in the following terms (omitting some information for privacy reasons): "We refer to the above matter and confirm our instructions below: The property is currently owed by Mr Ertunc Ozen and Mr. Erdinc Ozen as tenants in common. There is a mortgage on the property to St George Bank bearing the mortgage number ABxxxxx. The property is to be transferred to Ms. Durcan Isin, (mother of the vendors) for nil consideration. We advise as follows: 1. The property is being transferred as a gift for nil consideration. The value of the property needs to be determined. The simplest method of obtaining the market value would be to engage a registered property valuer. The market value determined by the valuer will be used to conduct a stamp duty assessment for the transfer and any liability that may arise for capital gain tax. If the property was acquired prior to 20 September 1985, capital gains tax may not apply. If there are valuers you know or have worked with previously you may instruct them, otherwise we can instruct a valuer on your behalf. If you instruct a valuer, we request that the valuation report be forwarded to our office as the Office of State Revenue must sign the document. 2. Mortgage ABxxxx must be discharged. We have enclosed the St George Bank 'request to amend an existing security' form. We request that vendors complete the areas marked and return the form to our office in the self-address [sic] envelope (attached). Once the valuation report is received the document will be submit [sic] to the bank. We inform that processing of a discharge authority may take 4-6 weeks. The discharge fee charged by St George Bank is $250.00; the bank may also charge a settlement attendance fee which will be advised once the settlement is arranged. 3. We enclose here under the transfer document. We request that the vendors sign the document in the presence of a witness, where marked and return the document to our office for filing. We inform that the Land Property Management Authority transfer of ownership and discharge of mortgage filing fee is $298.50. 4. We will advise on the stamp duty payable for the transfer once the valuation report is conducted. However, as a pre-estimate, if the property is valued at $400,000.00 the stamp duty payable on the transfer is approximately $13,500.00. Espreon Property service will also charge a stamping fee of $25.00. A settlement date can be arranged on a date that suits you and we request that you contact the writer should you have any queries or concerns."
5. Ertunc responded by email dated 18 November 2011, which, relevantly, was in the following terms: " … 2. I am keen to proceed with the transfer of the house to my mother. I would like your firm to handle the conveyance. The house is a gift, there will be no money exchanged, but I understand that the Govt will still want a stamp duty slice, please advise how much It is in my name, and my brother's - I owe about $1500-on it, and can clear that before the transfer if that's easier Both Din (my brother) and I have lived in that house for extended periods of time, I can give you precise dates if needed The address is xxxx, Seven Hills 2147. Please send me a costs agreement etc and let's get underway"
6. Ertunc sent a further email, a few hours later, which, relevantly, was in the following terms: "Got the letter, thanks for that and will get it all signed etc over the weekend. Will mum have to have SD paid before the transfer occurs? I expect she will take out a loan to cover the cost, so she needs to know whether to do this before we moved on the conveyance".
7. This was followed by an email from Ms Komuksu sent shortly thereafter: " … The stamp duty on the transfer must be paid at settlement. A settlement date has not been determined, however generally banks take 4-6 weeks to process a discharge of mortgage. So, once the bank is ready and the valuation is conducted we will be ready to proceed with settlement. I anticipate to schedule settlement the second or third week of January 2012, unless otherwise agreed upon. Should you have any queries or concerns please contact me."
8. Shortly thereafter, Erdinc and Ertunc executed a Transfer, in registrable form, which, on registration would have had the effect of transferring the Property to her. The consideration shown on the Transfer was $1.00.
9. The Transfer was signed in the Chambers of Ms Madeline Avenall, a barrister, who witnessed the signature of each of Ertunc and Erdinc. (There is no suggestion that she was a witness to any of the conversations to which reference will be made later in these reasons. Nor is there any dispute about the authenticity of the signatures on the Transfer, or that the placing of those signatures on it was properly witnessed by her. Therefore, Ms Avenall was not a witness in the proceedings.)
10. Seda was present during the conversation between Ertunc and Erdinc at the time the Transfer was signed, but she said that she did not follow it as the conversation between them was in English.
11. Ertunc gave evidence that Erdinc raised a concern about what may happen if the Property was transferred, "what if Mum gambles it all away; she'll have nothing left". He responded that it would be her house and she could do with it as she pleased, which response Erdinc seemed to accept.
12. Seda gave evidence that Erdinc had raised with her, on a number of prior occasions, his concerns regarding Durcan gambling. However, it is difficult to accept that if there were any such conversations, the concern was a real one. There were no questions asked of Durcan, in cross-examination, suggesting that at that time she gambled, or if she did, that it was a problem. Also, there was no documentary evidence relied upon demonstrating withdrawal of funds by Durcan from any bank account which could be demonstrated to have been withdrawn for gambling.
13. (I do not accept the submission of Seda's counsel that it was unnecessary to cross-examine Durcan on whether she had a gambling problem given that in the context of determining whether Erdinc wished to give the Property to Durcan, the relevant consideration is Erdinc's belief and understanding.)
14. Seda also gave evidence that Erdinc signed the Transfer reluctantly and that he believed that the Property would be transferred back to "us" on Durcan's death. There is simply no corroborating evidence that confirms that Erdinc held such a belief, or if he did, that he had expressed it to either Durcan or to Ertunc. Indeed, that he signed the Transfer in favour of Durcan giving her an absolute interest suggests that if he held such a belief at that time, he was still prepared to transfer the Property to Durcan absolutely. Whether he remained of that view subsequently, is not so clear in light of other evidence of events in 2012.
15. Following Erdinc's death, Seda proposed that Durcan could have the Property transferred to her, but on the basis that Erdinc's interest in it would be "returned" to Seda on Durcan's death: T50.09 - T50.12.
16. In late November 2011, Ertunc provided the original Transfer, signed by him and by Erdinc, to the firm of solicitors acting for Durcan, to enable its registration.
17. Shortly thereafter, she sent an email to Ertunc, which was in the following terms: "… We refer to the above matter and previous correspondence. We confirm receipt of the execute [sic] transfer document and St George discharge of mortgage document. We would be obliged if you could provide the loan account number of this property. Once received we will insert this information on to the St George discharge document and forward it to St George Bank mortgagees for processing. We anticipate that the discharge of mortgage document and certificate of title will be provided to us mid or late January 2012."
18. Having sent this email, Ms Komuksu signed the Transfer as the solicitor for the Transferee (Durcan).
19. On about 25 November 2011, Durcan made an application for a loan to Westpac Banking Corporation to enable the payment of the stamp duty on the Transfer. She was told, in December 2011, by a Westpac Bank staff member (who, in cross-examination, she identified as "Jane") that the loan had been refused.
20. Although the amount of the stamp duty was estimated to be $13,500, the amount Durcan sought to borrow was between $20,000 and $25,000. Ertunc explained, in cross-examination, that this amount was sought in order to cover the possibility that the value of the Property would be greater than was thought ($400,000), thereby increasing the amount of the stamp duty that would be payable, and to ensure that any associated legal costs could be met.
21. Durcan and Ertunc was each asked why Ertunc and Erdinc did not give, or lend, Durcan a sufficient amount to pay the stamp duty and the associated costs of transferring the Property to her. Each gave evidence that Durcan had refused the offers of assistance as she did not wish to impose upon her sons any further.
22. On 5 December 2011, Ertunc sent an email to Graham Edwards, a Private Client Manager at the National Australia Bank. Relevantly, the email was in the following terms: "… 2. We are about to transfer the Seven Hills property over to mum, as was always the plan. The transfer costs (the govt still wants stamp duty), including conveyancing etc are going to be something in the vicinity of $15-20K. Mum is going to cover this, but will be seeking a loan to do so. It will be secured against the home, and I will happily be a guarantor. Mum is a pensioner. She is about to make an application to St George, are you interested in offering her a loan?"
23. Within hours, Mr Edwards responded that he "will check re loan".
24. In an email dated 8 December 2011, sent to Ertunc by Ms Komuksu, a reference was made to "the St George Discharge request" which was to be sent by facsimile transmission to the mortgagee bank "for processing". It was said that St George would then "process and collect the discharge of mortgage form and the certificate of title in readiness for settlement".
25. Ertunc gave evidence of a number of conversations with Erdinc regarding the inability of Durcan to borrow the money necessary to pay the stamp duty and the associated costs.
26. In a letter dated 11 January 2012, sent to Ertunc, Mr Koyuncu confirmed the payout figure as at 16 December 2011 ($1,872.91) and requested advice "on the status of [Durcan's] loan application for the payment of stamp duty". The letter included a reference to "fees payable on settlement".
27. On 10 February 2012, Ertunc sent another email to Mr Edwards, which email was in the following terms: "… In addition, you may recall I had discussed with you the plan to give e [sic] Seven Hills house back to mum. This is something we would like to do. The house will be a gift, but of course, this does not mean we escape stamp duty. I expect all up, with conveyancing costs, this transfer is going to cost up to, $20,000. I can't see it costing more. There is currently $1,500 owing on it. It is worth pros $400,000. What I would like to know if whether you would approve a loan for mum, secured against the property, for this amount. Mum is a pensioner, but I would guarantee the loan, and will be assisting her pay it back. Please let me know if you think this can be done."
28. Apparently, no written response was received to this email. Although Ertunc says that he may have discussed the request with Mr Edwards subsequently, he did not have any specific recollection of having done so. He said that "by his lack of response, I took that as a fairly firm "No" that [the Bank] weren't going to lend my mother the money": T101.33 - 101.34.
29. Sometime later, following the death of Erdinc, Durcan received a letter dated 29 April 2013, from the Westpac Bank, to confirm that the loan "was declined by Westpac in accordance with our credit policy": Ex. A/5. (Although there was some dispute about whether Seda had suggested to Durcan to obtain the letter, nothing turns on the determination of this factual dispute. The letter does no more than corroborate what was not in issue, namely that Durcan had not been able to obtain a loan from the Bank to pay the stamp duty on the Transfer.)
30. In addition, Ertunc had a conversation with Erdinc in which Erdinc explained that he had limited financial means and then was not able to contribute $5,000 towards the payment of the stamp duty. He said to Ertunc, when asked for a contribution towards the stamp duty, "Things are a bit tight at the moment; I can't put that in. Are there any other options?"
31. It is clear, despite attempts to borrow funds for the purpose of paying stamp duty and associated costs of the transfer of the Property to Durcan, that the stamp duty could not then be paid, with the result that the Transfer was not able to be registered.
32. It is necessary to note that nowhere in her affidavit does Ms Komuksu give any evidence of having been given any authority by Ertunc and/or Erdinc to retain the signed 2011 Transfer, the Discharge of Mortgage, and the Certificate of Title, so that each could be lodged subsequently in the event that Durcan had sufficient funds to pay the stamp duty. The event cannot be assumed to have occurred: Marchesi v Apostolou [2007] FCA 986, Jessup J at [62].

The Deed creating the Life Tenancy

1. Ertunc gave evidence of then discussing the possibility of granting a life estate to Durcan, which could be registered on the title of the Property for the purpose of protecting her interest. He said that he discussed the grant of a life estate with his solicitor in April 2012. This was before he had discussed the possibility with Durcan or with Erdinc.
2. On 19 April, 2012, Mr Koyuncu sent to Ertunc an email in the following terms: "I have drafted the Deed granting the life estate. I have attached the draft version. You will see that I have inserted obligations on the life tenant (grantee) to maintain the premises, pay for council rates and insurance. These obligations can be removed if you do not wish to impose these on your mother. I just need your brother's address so I may insert it in the deed. I have made enquiries with the land titles office as the deed needs to be registered on Title. I have enquired as to which dealing form we need to lodge and whether it needs to be presented to the OSR for stamping. Because the instrument creates an interest in Land there may be stamp duty consequences. I have been informed that a technical specialist at the land titles will contact me by 5pm tomorrow to discuss. I will let you know duties need to be paid if any once I hear from the land titles and OSR. Due to the deed requiring registration you will also need the consent of the mortgagee, I note that they usually charged around $500 to consent. Given that the amount remaining is $1500 or so it will be easier to discharge the mortgage and obtain the CT."
3. A short time later, Mr Koyuncu sent to Ertunc another email in the following terms: "Further to my email below, I have spoken with the Land titles office. I have been informed that we complete the attached transfer form and select life estate at (E). The registration fee is $199.00. I have spoken to OSR and they have informed me that no stamp duty applies. As such we can proceed with the transfer. If you and your brother can attend to signing the transfer and transferor in the presence of a witness, we will signed it on behalf of your mother as her solicitor. The mortgage will need to be discharged. If you would like I can instruct Buse to organise the discharge with the bank and once that has been done we can register the transfer. Let me know your thoughts, and if you require any changes to the Deed."
4. On 9 May 2012, Ertunc responded to the solicitor's email, by an email in the following terms: "I will sign the necessary documents and have it witnessed, and make sure my brother does so as well. Given the current state of my practice, would it be OK if you guys just organised the discharge of mortgage? Just let me know how much I need to pay. I think it is going to be around $2000 with the registration fee you mentioned. Let me know and I will transfer to you and we can then finish this."
5. Durcan gave evidence of a conversation with Ertunc in about April 2012 in which he said to her that he had spoken with "lawyer friends" who had informed him that he and Erdinc "can give you a life interest in the property which means that effectively the house is yours until you pass away and no one can kick you out of the house". She says that she replied that the course suggested "sounds good": T54.21 - T54.30.
6. Ertunc's evidence is more detailed. He stated that on, or prior to, 9 May 2012, he had a conversation with Durcan about the life estate as follows: Me: "Mum, I have spoken to the solicitor. We can guarantee that no one can sell the house even if we all get divorced, by giving you something called a life estate". Mum: "I still need the money for the stamp duty. I cannot get the money together". Me: "No you won't have to pay any stamp duty. This will put your name on the title like a mortgage". Mum: "Is it a loan"? Me: "No it's not a loan". Mum: "I don't understand. Can the house still be transferred to me"? Me: "We can still transfer the house to you when you have got the money for the stamp duty". Mum: "What can we do? We will have to do it this way"."
7. And a week or so later, Ertunc had a conversation with Erdinc to the following effect: Me: "Mum can't get the money for the stamp duty together and she won't let me borrow it for her. We can give her a life estate in the house which won't cost any money". Dinc: "What does that do?" Me: "It guarantees mum's rights. It guarantees that no one can kick her out". Dinc: "What do I have to do?" Me: "Come in and sign another document". Dinc: "OK. Tell me when."
8. There are a number of problems with relying on his conversation with Durcan to found the Plaintiffs' claims as against Seda. Firstly, the evidence does not establish that Erdinc was present, or that he was told, subsequently, of the conversation referred to. Secondly, if he had been told, there is no evidence of his response, particularly, that he had agreed. Thirdly, even if Erdinc had been told and had agreed, what was told to Durcan was no more, and no less, than what Ertunc and Erdinc could do as registered proprietors of the Property when Durcan had the money to pay the stamp duty. Ertunc did not say what they would do at that time. Nor did Erdinc. Finally, the conversation between Ertunc and Erdinc merely refers to Durcan not being able to be "kicked out". The part of Ertunc's conversation with Durcan regarding transferring the property when she had the money for the stamp duty was not repeated to Erdinc.
9. By email dated 18 May 2012, from Ms Komuksu, Ertunc was informed that St George was "ready to discharge the mortgage on title" for the Property and that it was proposed "that the discharge occur on 29 May 2012". Ertunc was requested "to complete the documents previously provided to you and send them to our office in readiness for the filing of the life estate". (Subsequently, the date was changed to 18 June 2012.)
10. Ertunc and Erdinc signed the Deed and the Life Estate Transfer on 20 June 2012 and returned both to the solicitors so that the life estate could be registered on the title to the Property. Durcan signed the Deed in the presence of Mr Koyuncu.
11. Mr Koyuncu signed the Transfer, a copy of which is in evidence and does not bear a date, as the transferee's solicitor. The document does have the words "Life Estate only" handwritten on it.
12. Before I refer to the terms of the Deed, it is important to remember that the Plaintiffs do not challenge the validity of the Deed, which, in my view, is inconsistent with any agreement, representation or understanding, to transfer the Property to Durcan when she had the money to pay the stamp duty. Relevantly, it recited that Ertunc and Erdinc were the registered proprietors of the Property and that they "wish to grant to the Grantee a life estate of the premises for the term of the grantee's life".
13. It also provided that: "3 RESPONSIBILITIES OF THE GRANTEE 3.1 The Grantee must take out and maintain in place an insurance policy covering the premises for damage, loss or destruction during the term of the life tenancy. 3.2 The Grantee must pay for the Council and Water rates during the term of the life tenancy. 3.3 The Grantee must maintain the premises during the term of the life tenancy. This includes keeping the premises in good condition and working order. 4 TERMINATION 4.1 The life estate granted to the grantee will terminate upon the death of the Grantee. 4.2 The estate in remainder will revert to the Grantors upon the death of the Grantee. … 8 FURTHER ASSURANCE Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement. … 10. WHOLE AGREEMENT In relation to the subject matter of this Agreement: (a) this Agreement is the whole agreement between the parties; and (b) this Agreement supersedes all oral and written communications by or on behalf of any of the parties. 11. NO RELIANCE ON WARRANTIES OR REPRESENTATIONS In entering into this Agreement, each party: (a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person; and (b) has relied entirely on its own enquiries in relation to the subject matter of this Agreement."
14. On 9 May 2012, Ertunc requested Mr Koyuncu to visit Durcan. Mr Koyuncu responded that he would do so on Saturday, 12 May 2012, at the Property, which he did. On that day, Durcan signed the Deed in his presence.
15. In her affidavit, Durcan gave the following evidence about the visit by Mr Koyuncu: "I recall that the Lawyer visited me on a Saturday morning and explained to me the effect of the document. The lawyer was also of Turkish background and was able to explain to me in Turkish the nature of the document and its effect. After he explained the document to me I signed the document in his presence."
16. Durcan was not asked any questions by counsel about what had occurred at her home. Because of Clause 4 of the Deed, to which reference has been made, the Court asked Durcan about what had occurred. The following passage of the transcript, although lengthy, records the evidence given at T72.03 - T74.37: "Q. As I understand it an email was sent to Ertunc on 9 May 2012 which was a Wednesday by Ozenc Koyonku saying that he would visit you on Saturday at noon. On my understanding, Saturday would have been 12 May. Do you remember Mr Koyonku visiting you on Saturday as he had said he would to Ertunc? A. WITNESS: Yes. A. INTERPRETER: Yes. Q. Would you be good enough to tell me what happened when Mr Koyonku arrived? A. INTERPRETER: After greetings, he showed me a document which was prepared by Ertunc and Erdinc and then he asked me to sign the document. Q. Was there any discussion about the contents of the document? A. INTERPRETER: I did have some conversation. Q. Could you tell me about the conversation, please? A. INTERPRETER: I was told by him whatever happens to them, whether they bankrupt or they just lose their life, until this house is sold you have a lifetime guarantee of lifetime right to live in this house. Even the property is-- HIS HONOUR: Just a moment. Is there a problem? CAREY: There might, perhaps-- HIS HONOUR Q. Could you start again, please? A. INTERPRETER: Whatever happens to the three or two sons, even if this property is sold somebody else by one of them you will live in this house until you die. Q. Anything else? A. INTERPRETER: That's it. That's all, your Honour. Q. Did he show you the document? A. INTERPRETER: He did. Q. Did he go through the document with you? A. INTERPRETER: Yes, he did read. Q. When you say "he read" what do you mean? A. INTERPRETER: Explained to me. Q. Did he do so by pointing to parts of the document that he was explaining? A. INTERPRETER: He was showing them with his finger, yes. Q. Would you have a look at the document itself? INTERPRETER: Of the pages, your Honour? HIS HONOUR Q. Yes, it's open. Just turn those pages over. That's it. The deed. Are you able to tell whether that is a copy of the document that the solicitor showed you? A. INTERPRETER: As far as I looked at the points it's the same one, yes. Q. Did he go through all of the document with you by pointing to each paragraph of the document? A. INTERPRETER: He pointed out the important parts. Q. You told me that he said what would happen while you were alive. A. INTERPRETER: Yes. Q. Did he say anything to you about what would happen to the property when you died? A. INTERPRETER: No. HIS HONOUR: Mr Interpreter, would you be good enough to read to Ms Isin what appears under or next to four and what appears at 4.1 and 4.2, please? INTERPRETER: I don't recall that. HIS HONOUR Q. Was anything said about what appears in clause 4.1 or 4.2? Deal with it individually if you could. Was anything said about what appears in clause 4.1? A. INTERPRETER: Yes. Q. What was said about that clause? A. INTERPRETER: It was said to me it was the end of it when I die. I don't know, probably then the property could be transferred to my both sons. I don't know. Q. Then did he say anything to you about what appeared as in clause 4.2? A. INTERPRETER: Yes. Yes. HIS HONOUR: Just a moment. Yes, what's the problem? Are you objecting? CAREY: I'm about to, yes. HIS HONOUR: What's the objection? CAREY: There are two; one, there is no pleaded defence about any form of estoppel by deed; secondly, your Honour is straying into areas that are, strictly speaking, I submit, privileged. HIS HONOUR: Mr Carey, the difficulty that I've got is that this document which is signed says certain things. I'm trying to find out what the truth of the position is. If you don't wish me to ask any questions about this I won't continue, however, I will be relying on this document as a relevant matter on the issue as I must. It is a contemporaneous document signed by the parties which is very relevant to the issues in the case. Whether it's an estoppel by deed or an admission or anything else is a very relevant matter and I was giving the first plaintiff the opportunity to explain to me what, if anything, was said about it. If you don't wish me to I won't. CAREY: I withdraw my objection. HIS HONOUR: Thank you. Do you have an objection? O'CONNOR: No. HIS HONOUR Q. Was anything said about clause 4.2? A. INTERPRETER: I remember the first one, 4.1, but I don't remember well the other one. I don't know. Q. Mr O'Connor asked you about your acceptance of the life interest. A. INTERPRETER: Yes. Q. My note of what you said was that you knew it meant the property would not be transferred to you at that time. Have I correctly understood your evidence? A. INTERPRETER: When my sons gave me that right after that wouldn't it ever be done the transfer afterwards? Q. I'm sorry, I didn't understand? A. INTERPRETER: When my sons gave me that right to live lifetime, wouldn't it be possible afterwards to transfer the property on my name?"
17. In further cross-examination by counsel for Seda, Durcan gave the following evidence at T75.27 - T75.29: "Q. So when you signed the life interest, was it your understanding that your sons could, after that, if they chose, sell the property? A. INTERPRETER: Yes."
18. At no point in her evidence, did Durcan say that she did not understand the contents of the Deed.
19. On 29 May 2012, Ertunc transferred funds into the Trust account of the solicitors to enable the Mortgage to the St George Bank to be discharged.
20. On 15 June 2012, in an email sent to Ertunc, Ms Komuksu confirmed to Ertunc that the funds had been received and that the discharge of mortgage had been arranged to take place on 18 June 2012. Her email ended with the statement: "Once we receive the outstanding documents from you, we will be able to lodge the life estate at the LPI"
21. Those funds were paid to St George on 18 June 2012. Ms Komuksu attended a settlement meeting on 18 June 2012 at which she received from St George, the Certificate of Title for the Property and, presumably, a Discharge of Mortgage in registrable form. Upon her return to her office, she handed the original Certificate of Title to Mr Koyuncu, who she described as "the Solicitor Director with the carriage of the file".
22. On or about 20 June 2012, Ertunc and Erdinc each signed the Transfer in registrable form, and the Deed granting the life estate to Durcan. The attesting witness to the signature by each of them is shown as "Nicholas John Broadbent". Without objection, the Court was informed from the Bar table that Mr Broadbent is a barrister: T154.24 - T154.36.
23. Later on the same day, Erdinc sent a text message to Ertunc in the following terms: "Hey Tunc. This is a question I did not want to ask in front of Seda. Can Mum take out a loan against the house?"
24. Ertunc responded a short time later, also by text message: "No. Like I said this is not an asset for her. It is simply a right not to be kicked out."
25. Again, as neither counsel asked Ertunc any questions regarding the signing of the Deed, it was left to the Court to do so. The following passage of the transcript, although lengthy, records his evidence at T120.26 - T121.47: "Q. Secondly, there were a number of questions asked about the deed, but I don't think anyone has actually taken you to the deed. Could I just take you to the deed. I'm talking now about the deed granting the life estate. You've obviously seen the deed before? A. Yes, yes. Q. I take it that when the unsigned deed was sent to you, you read it? A. To be honest, your Honour, I, I would have skimmed it. I, I certainly before these proceedings didn't read this in, in great detail. My solicitor advised me what it meant and I accepted that. Q. Would you have a look at clause 4. A. Yes. Q. Those two subparagraphs are inconsistent, are they not, with what you say was what was agreed between you? A. Your Honour, our name on the title was inconsistent with what we had all agreed with, but the problem that we faced as a family was a bit of a catch-22. My mother wanted the house back. She did not want us to assist her financially, but she was unable to raise the funds. Q. Please look at clause 4.1 and 4.2. A. Yes. Q. 4.1 I think raises the issue of her getting a life interest, is that right? A. Yes. Q. And terminates on her death? A. Yes. Q. That's clear. A. Yes. Q. But would you have a look at the next clause? A. Yes. Q. That's inconsistent, is it not, with what you say was what was agreed between you, or is that not right? A. I think Mr O'Connor asked me a question about what might happen if my mother passed away, so on the assumption that the day after this is executed my mother passed away, I think my answer was to the effect of well my understanding was that then it would be divided between the three sons as my mother has wished. Q. But that isn't what is disclosed in the deed. A. I accept that, yes of course, your Honour. Q. That was the next question I was going to ask you was what's in the deed is consistent with the text message that you were taken to by Mr O'Connor where he said, "Like I said this is not an asset for her, it is simply a right not to be kicked out." A. Yes, my, my solicitors had explained to me that this was not like a transfer of title and therefore didn't attract stamp duty, but it gave mum the peace of mind in the meantime. So it wasn't - it didn't become her asset, this document didn't make mum the legal title holder, but it was never intended to. Q. For your third brother to have any interest in the property would have required you and Erdinc to transfer one-third of the property to him? A. Yes. Q. It wouldn't have come through your mother. A. No, but again I assumed that that would have had a stamp duty implication and the whole point of this was to avoid further costs if we could. Q. But the difficulty about why I'm having trouble is that it doesn't refer to your third brother as having any interest in the property. It is very specific that once the life interest terminated you and Erdinc would continue to own the property. A. Yes. At that time of course only myself and Erdinc had legal title. This was an interim measure, but to insert an interest for Erdal I assume would have complicated matters. There would have been further costs involved."
26. On 3 July 2012, the registered Mortgage in favour of the St George Bank was discharged, following which the Bank released the Certificate of Title to Durcan's solicitors. Those solicitors caused the Certificate of Title to the Property to be lodged at the Land Titles Office in order to register the Discharge of Mortgage and the Transfer creating the life tenancy. Each document was registered on title on 3 July 2012. (There was no duty payable on the Deed creating the life tenancy.)
27. Durcan is identified on the current Folio Identifier as holding a life interest. Ertunc and Erdinc are shown as the registered proprietors as tenants in common in equal shares. (There is also a caveat, lodged on behalf of Durcan, identified on the current Folio Identifier but a copy of the caveat is not in evidence.)
28. The current whereabouts of the Certificate of Title is unknown although it is clear that one has been issued.
29. The Plaintiffs submit that: "[T]here can be no dispute that, on any objective basis, Ms Komuksu received the 2011 Transfer and the Certificate of Title on Durcan's behalf, and that upon its receipt by Ms Komuksu property in both documents passed to Durcan. There was no express restriction on the use of either document, nor is there any objective indication attributable to either Ertunc or Erdinc to the effect that they retained property in the 2011 Transfer or the Certificate of Title or to the effect that they placed any condition on its use by Durcan."
30. However, there is no evidence given by Durcan or by any solicitor that there was anything said about any right in Durcan to lodge the Transfer previously signed by her and her two sons, when she had available an amount sufficient to pay the stamp duty.
31. In addition, her acknowledgement that she understood if Ertunc and Erdinc wished to sell the Property they could do so, is inconsistent with any suggestion that after she signed the Deed, she had such a right.
32. Mr Koyuncu was not a witness in the proceedings. One would have expected him to have been called, if there had been any conversation with Durcan that was inconsistent with the terms of the Deed or if he had received any instructions from either Ertunc, Erdinc or Durcan which were inconsistent with the terms of the Deed.
33. Seda gave evidence that she was aware of Durcan's concerns about being "forced out" of the Property. She said that in April 2013, she said to Durcan: "Don't worry mum. I am not going to kick you out of the house. If it makes you less worried, I will transfer Erdinc's share to you and it can be transferred back to Demir and me when you pass away."
34. Seda does not state whether Durcan responded, or if she did, what was said.

Some other Evidence

1. Ertunc's wife at the time, Kylie, deposed that "it was often discussed that when Durcan dies that the house would be split 3 ways between the 3 sons". Her evidence was to the effect that she was aware that Ertunc and Erdinc had purchased the Property, but that she had always considered it to be Durcan's house. Her evidence was not challenged in cross-examination.
2. Similarly Erdal's evidence was to the effect that he knew that legally Ertunc and Erdinc owned the Property, but that he had always understood the arrangement between them and his mother to be that the house belonged to his mother, not simply that it was the house in which she lived.
3. Whilst this evidence is relevant, neither of the deponents suggested that the matters to which they had referred occurred after 2011 and 2012.
4. Ewelina commenced to live with Erdal, in England, in about September 2010 and remained living with him there until about 2011 or 2012. Much of her evidence relates to conversations with Seda after Erdinc's death and really goes to matters that are said to affect the credibility of Seda. She does not give any evidence of conversations relating to Seda's knowledge of the events the subject of the dispute.
5. Mr Restuccia gave evidence about a conversation with Ertunc following the death of Erdinc. The conversation included: "During the conference, Ertunc instructed me to the following effect: He said: "My mother lives in a property at XXX Seven Hills. The Property is held on trust for my mother. Dinc and I took over the mortgage so that our mother wouldn't be kicked out of the house. She was concerned about what might happen so we granted her a life interest." During the conference, Ertunc instructed me, during discussions about the potential for a family provision claim, to the following effect: "Mum will want the property to go to Dinc's son. However, if it makes it easier we will transfer the title to Mum." During the conference Ertunc and I had the following conversation in relation to a property located at XXX Seven Hills NSW. I said: "Is there any evidence the XXX Street Property is held on trust? Like a Deed?" He said "No. It was informal." I said: "As there is no clear evidence of a trust and as there was a life tenancy, being inconsistent with a trust, the property could not be transferred by the LPI without an application being made to the Court."
6. I shall not set out the contents of the correspondence which followed the conversation as it is clear that it was becoming obvious that the parties were in dispute.

The Plaintiffs' Case

1. In their amended Statement of Claim, filed on 4 November 2015, the Plaintiffs' claim is put in three ways: 1. firstly, pursuant to the principles set out in Corin v Patton by (amongst other things) providing Durcan with an executed Transfer in registrable form in November 2011 and authorising the release of the Certificate of Title of the Property to her solicitors in July 2012, Ertunc and Erdinc gave the legal title to the Property to Durcan, such that equity would enforce the gift; 2. secondly, in the alternative to sub-paragraph (a) above, that Seda is estopped, by reason of an estoppel by convention, from denying that Ertunc and Erdinc held the legal title to the Property on trust for Durcan; and 3. thirdly, in the alternative to both paragraphs (a) and (b) above, that Seda is estopped, by reason of an estoppel by representation and/or a promissory estoppel, from denying that Ertunc and Erdinc held the legal title to the Property on trust for Durcan.
2. In relation to (a), counsel for Durcan and Ertunc submitted that Ertunc and Erdinc, by sending the Transfer of the Property to Durcan's solicitors, had done all that was necessary to place the vesting of the legal title within the control of Durcan and beyond their recall or intervention. The gift of the Property was then complete and effective in equity, the equitable interest therein vesting in Durcan. That being so, Ertunc and Erdinc were then bound in conscience to hold the Property as trustees for Durcan pending the vesting of the legal title in her. Equity, acting upon the "fact or circumstance" that Ertunc and Erdinc, as the donors, had placed the vesting of the legal title within the control of Durcan, as the donee, and beyond their recall or intervention, looked at the substantial effect of what had been done and regarded the gift of the Property as complete. As the gift was completed in 2012, Erdinc's death had no bearing upon Durcan's entitlement to lodge the 2011 Transfer with the Registrar General for registration.
3. It was also submitted that the question of intention was to be determined objectively, and was whether Ertunc and Erdinc had done everything that only they could do, with the intention to transfer the legal title to the Property to Durcan. The question of intention was to be determined by reference to the words spoken, or written, by the parties, and by reference to what a reasonable person would have understood from them and from their conduct.
4. Counsel for the Plaintiff submitted that the evidence was clear that the life estate was only intended to be an interim solution, until such time as Durcan could raise the funds necessary to pay the stamp duty, when she would then be entitled to lodge the 2011 Transfer for registration so that legal title to the Property could then be registered in her name.
5. In relation to (b), counsel submitted that Durcan had adopted a common assumption as to the terms of her legal relationship with Ertunc and Erdinc, namely that the Property had been gifted to her and that whatever be the legal position in relation to title, the Property belonged to Durcan; that they had adopted the same assumption; that all of them have conducted their relationship on the basis of that common assumption; that each knew, or intended, the other to act on the basis of that common assumption; and that departure from the common assumption would occasion detriment to Durcan. She will have lost the estate in fee simple of the Property; she would not be able to deal with the Property as she saw fit during her lifetime or by will; and that on her death, ownership of the Property would revert to Ertunc and Seda.
6. It was put that the evidence made clear that Durcan, Ertunc and Erdinc each did not understand the Deed creating the life estate to have altered the terms of the common assumption.
7. Reliance was placed on what is described as estoppel by encouragement of the kind considered in Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285, described by the authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) at [17-065] as: "… bind[ing] the donor of property where, after the making of an imperfect gift, the donor induces the donee to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective."
8. In relation to (c), it was submitted that an assumption or expectation on Durcan's part had been created that so far as Ertunc and Erdinc were concerned, the estate in fee simple for the Property had been, or would be, transferred to her by them, and that all that she was required to do to perfect that transfer, so far as third parties were concerned, was to pay the stamp duty and lodge the 2011 Transfer (or a later transfer) for registration; that she accepted the life estate, and did not immediately pursue avenues to raise the finance necessary to pay the stamp duty in reliance upon the faith of that assumption or expectation and in the belief that the life estate would not detract from her entitlement to lodge the Transfer of the estate in fee simple, once she was able to raise the money to pay the stamp duty; and that Ertunc and Erdinc encouraged, or induced, Durcan to adopt that assumption and belief. If Ertunc and Erdinc (or Seda, as his legal personal representative) were allowed to depart from the assumption now, Ducan would suffer irreparable prejudice.
9. Seda submitted: "22. …that having regard to the evidence, the Court should find that Ertunc and Erdinc executed the 2011 Transfer as they wanted to ensure that Durcan's occupation of the property would be protected against claims by third parties, but with the intention that the beneficial interest in the Property would remain with Ertunc and Erdinc and that the title would revert back to Ertunc and Erdinc on Durcan's death. Further the defendant submits that in April 2012 Ertunc and Erdinc abandoned and resiled from the decision to transfer the legal title in the Property to Durcan but instead agreed to grant Durcan the Life Interest as it protected her right to occupy the Property for life and meant that the payment of Stamp Duty was avoided."
10. She went on to submit that if the Court found that the decision to transfer the Property to Durcan was conditional upon the title being transferred back to Ertunc and Erdinc upon her death, there was no "intention of making a gift" and the question whether equity should intervene to perfect the gift does not arise.
11. In any event, the agreement to transfer the Property to Durcan was conditional upon her paying the stamp duty in order to register the 2011 Transfer. As she was unable to borrow funds to pay the stamp duty, and as Erdinc could not assist in that regard, it was necessary to "look at other options". From that time, it could not be said that Erdinc agreed to transfer the Property to Durcan. Ertunc, for his part, indicated that he would think about it. He subsequently informed Erdinc that they could give Durcan a life interest in the Property. At this time, and upon the signing of the Deed, there was no intention to transfer the fee simple in the Property to her.
12. Seda also submitted that once Ertunc and Erdinc granted, and Durcan accepted, the life interest in the Property, and once each signed the Deed, the parties' only common assumption was that Durcan's interest in the Property was limited to a right to occupy the property for her life; that the legal title in the Property would remain registered in the names of Ertunc and Erdinc; that they would continue to hold the remainder interest in the Property until the death of Durcan; and that after her death, they would hold it as tenants in common in equal shares.
13. Finally, it was submitted that all of these matters were self-evident from the terms of the Deed. It was the terms of the Deed that prevented their success in the claims being advanced by them.

Determination

1. Alienation of real estate will be effective, in equity, by gift, if the gift is "complete": Corin v Patton (1990) 169 CLR 540; [1990] HCA 12, at 558, 563 - 570, 582 - 583; Costin v Costin (1997) 7 BPR 15,167; [1997] NSW ConvR 55-811; Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 8 BPR 15,565.
2. To effect the gift, the donor must do everything that, according to the nature of the property, is necessary to be done in order to transfer the property and render the gift binding on the donor: Milroy v Lord (1862) 45 ER 1185; (1862) 4 De GF & J 264. What that means, in the context of Torrens system land, was the subject of debate until, in Corin v Patton, Mason CJ and McHugh J held, at 559, that: "... the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. 'Necessary' used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part."
3. Deane J, at 582, dealt with the way in which it can be determined that the stage had been reached when a gift of real property under an unregistered Transfer is complete and effective in equity: "That test is a twofold one. It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title. In that regard, it is not a matter of equity ignoring the provisions of s 41 of the Act and treating the unregistered transfer as effective of itself to assign the beneficial interest in the land. It is simply that equity, acting upon the 'fact or circumstance' that the donor has placed the vesting of the legal title within the control of the donee and beyond the donor's recall or intervention, looks at the substantial effect of what had been done and regards the gift as complete ..."
4. It is, thus, now clear that for land held under the Torrens system, which is said to be the subject of the gift, the donee is unable to secure the registration of her or his title in her, or his, own name, without a transfer executed by the donors. The execution and delivery of the transfer is, therefore, to be regarded as "necessary" to be done by the donor.
5. In Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555; [1937] HCA 29, Dixon J (with whom Rich J agreed), wrote at 602-603: "That delivery of the transfer to the donee or the donee's agents is a condition which must be fulfilled before such a right will arise, appears to me to be clear. It is only by the control or possession of the instrument that the transferee could effect registration without any liability to interference or restraint on the part of the transferor. Further, I think that the donee must obtain property in the piece of paper itself and property in the paper could pass only by delivery (Cochrane v Moore (1890) 25 QBD 57). If property in the transfer remained in the transferor, his power of recalling it must also remain. For he would be entitled to possession of the paper, he could refuse to present it for registration, and he could destroy it. But, if by delivery to the donee or someone as bailee for her, the transferor has given her property in the instrument itself, then unless some further condition is expressly or impliedly prescribed by the statute, it would appear that the instrument, assuming it to be registrable, may be registered by the transferee independently altogether of the donor, and in spite of any objection on his part."
6. The judgment of McTiernan J, at 609, was to like effect.
7. However, the delivery of the Transfer, on its own, is not enough. In Corin v Patton, Mason CJ and McHugh J continued, at 560-561: "Whether or not it is correct to say that the production of a certificate of title is 'necessary' to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title ... That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted. In the present case Mrs Patton gave no authority for the mortgagee bank to hand the certificate of title to Mr Corin for the purposes of registration ... Accordingly, the transactions failed to pass the equitable property in the land to Mr Corin, and it is unnecessary to consider under whose control the instrument of transfer was after execution. Further, because the gift was incomplete, Mrs Patton could have recalled the transfer at any time. But it is not strictly relevant to ask whether or not Mrs Patton could have recalled the gift; that is not a criterion but rather a result of the efficacy or otherwise of the gift."
8. Deane J, after the passage quoted above, continued, at 583: "In the present case, the fact that Mrs Patton had taken no step to enable Mr Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr Corin's control ... The plain fact remains however, that registration of the transfer and vesting of the legal title could not be said to be within Mr Corin's control for so long as he was not entitled to procure production of the document of title. In any event, it is apparent that it remained in Mrs Patton's power to intervene to prevent the vesting of any legal interest in him."
9. It was not in dispute that no interest in the Property had been conferred upon Durcan simply by the mere execution of the Transfer by Ertunc and Erdinc in November 2011.
10. I accept that the consideration shown on the 2011 Transfer of $1.00 was nominal consideration and that nominal consideration means equity would characterise the transaction as, in substance, a gift or voluntary disposition: Costin v Costin [1994] NSW ConvR 55-715, 60,097 (overturned on appeal in the result: Costin v Costin (1997)).
11. However, it is next necessary to consider whether Ertunc and Erdinc had made a gift which equity would recognise, in the sense of making its remedies available to perfect. As stated, for there to have been a perfect gift, the donors must have done everything which it was necessary for them to have done to effect a transfer of the legal title of the Property. If their conduct failed to meet that standard, then the gift would be regarded as an imperfect one and equity would not make its remedies available to perfect the gift by, for example, recognising an equitable interest in the donee.
12. In my view, in November 2011, Ertunc and Erdinc had not done all that was required to be done by them to transfer the legal title of the Property to Durcan. If they, or either of them, had paid the balance of the debt then secured by the registered mortgage, and had authorised the mortgagee Bank to hand the discharge of mortgage and the Certificate of Title to Durcan's solicitor, the Transfer could have been registered and the legal title would have passed. This they did not do. The mortgage debt was not paid, the registered mortgage was not then discharged, or then able to be discharged, and the Certificate of Title to the Property remained with the registered mortgagee Bank.
13. Accordingly, as donors, Ertunc and Erdinc had not done all that was necessary to render the gift of the Property binding upon them. Nor had they armed or equipped Durcan, or her solicitors, with the means of securing registration of the signed Transfer. The legal transfer of the Property could not be effected without further action on their part.
14. (In stating the above, it is not suggested that Ertunc and Erdinc were required to pay the stamp duty payable on the 2011 Transfer. They might have paid the stamp duty and attended to the stamping of the Transfer and the registration thereof, but all of those things might equally have been done by Durcan, provided that she had all of the documents.)
15. Nor am I able to find that the gift of the Property was effective in equity upon the basis that it would be unconscionable for Ertunc and Erdinc, as donors, to resile from the intention that the transaction should be complete. Durcan, as the donee, did not act on the assumption that the gift of the Property to her was complete. Other than applying for a loan, which was unsuccessful, there is no evidence of any acts on her part based upon any assumption.
16. Nor am I satisfied that after signing the Transfer, Ertunc and Erdinc ever intended that they held the Property on trust for Durcan. Whilst they did not need to use words such as "We declare ourselves as trustees", the words they did use must show that they intended to dispose of the Property so that Durcan acquired the beneficial interest to the exclusion of themselves: Gorbunova v The Estate of Berezovsky (aka Platon Elenin) (Deceased) [2016] EWHC 1829 at [55]. Their mere intention to make a gift of the Property to Durcan was insufficient for that purpose.
17. In Pennington v Waine [2002] 1 WLR 2075 (CA); [2002] EWCA Civ 227, at [53], Arden LJ referred to a passage from Maitland, Lectures on Equity (1909), at 73-74, relating to the distinction between an enforceable gift and a declaration of trust: "The two intentions are very different - the giver means to get rid of his rights, the man who is intending to make himself a trustee intends to retain his rights but to come under an onerous obligation. The latter intention is far rarer than the former. Men often mean to give things to their kinsfolk, they don't often mean to constitute themselves trustees. An imperfect gift is no declaration of trust."
18. In addition, any suggestion that there was an immediate gift of the Property in November 2011, or that they then held the Property on trust for Durcan, suffers the further difficulty that, by entering into the Deed in 2012, and by that Deed, wishing "to grant to the Grantee a life estate of the premises for the term of the Grantee's life", Ertunc and Erdinc continued to deal with the Property as if it remained their own.
19. In the circumstances, whilst Ertunc and Erdinc might have intended to make a gift of the Property to Durcan in 2011, the gift of the Property to her was not complete at any time in 2011. It was their intention that Durcan would not acquire the Property until the stamp duty had been paid and the Transfer registered. Neither of these things occurred, and as a consequence I am unable to find that they intended to part with the Property "there and then" when they sent the unregistered Transfer to the solicitors.
20. It is clear that no steps were taken by Durcan, Ertunc or Erdinc, between January and April 2012, to ensure that Durcan could lodge the Transfer for registration. Attempts continued to be made to raise the necessary funds to pay the stamp duty, but these attempts proved unsuccessful. In addition, nothing was done by any of the family members to pay the amount due to the registered mortgagee Bank, with the result that the mortgage remained registered on the title to the Property and the mortgagee retained the Certificate of Title.
21. Furthermore, once it was realised that the stamp duty could not be paid and the Transfer could not be registered, they continued to treat the Property as their own, as is demonstrated by the events after about March 2012.
22. It was in April 2012, that another option was discussed and another transaction was entered into. This was to create for, and give to, Durcan, a life estate in the Property. What was then done was the execution of a Deed that set out the form of life estate that was created, namely an ordinary life estate - i.e. an estate for the life of the grantee (Durcan).
23. Importantly, as will be obvious, the Deed was not a unilateral declaration. It was a contract made between Durcan on the one hand and Ertunc and Erdinc on the other. It entitled Durcan to reside in the Property for her life. She had no power to grant any interest in the Property, a matter that Ertunc confirmed to Erdinc in the text message to which reference has been made. She had responsibilities under the Deed. They had rights following Durcan's death.
24. The use of the term "life estate" in the Deed, in my view, provides a sufficiently clear indication of what the parties to the Deed intended in the grant made to Durcan. That intention was to create a life estate only, in favour of Durcan, and it was that life estate that she accepted. Thereby, she had security of tenure for her life in the Property but no power to jeopardise the interests of Ertunc and Erdinc whose rights to the fee simple would continue to exist after Durcan's death. In this regard, the Deed was explicit.
25. As the Property was Torrens title land, the life estate, subsequently, was registered. Thus, Durcan was entitled to only possession of the Property as of right because the right to possession followed the legal estate.
26. When the debt secured by the mortgage registered on title was paid by Ertunc, when the solicitors attended upon the Bank to collect the Discharge of Mortgage in registrable form and the Certificate of Title, they did not do so for the purpose of registering the 2011 Transfer. They did so to enable the Transfer reflecting the life estate in favour of Durcan to be registered.
27. Even though Durcan's solicitors retained the 2011 Transfer, there is no evidence that they were requested to do so in order to enable it to be registered after the Discharge of Mortgage was registered and when the stamp duty payable on it was paid by Durcan. There is no evidence also that Durcan's solicitors were ever given instructions to lodge the executed 2011 Transfer for registration.
28. There is insufficient evidence for me to find that there was any agreement made that when Durcan had the necessary funds to pay the stamp duty, she could register the 2011 Transfer. Indeed, the terms of the Deed suggest that she could not do so since title to the Property was to revert to the grantors, namely Ertunc and Erdinc, upon the death of Durcan.
29. Had Durcan had the right to register the 2011 Transfer at any time after the Deed, the rights to remainder of each of Ertunc and Erdinc would have been terminated upon registration of the 2011 Transfer.
30. Thereafter, further instructions would have been required from Durcan, Ertunc and Erdinc to effect registration of the executed 2011 Transfer. This confirms that there remained additional necessary steps to be undertaken in order to perfect any gift of the remainder interest in the Property to Durcan.
31. Had the parties agreed that Durcan could register the 2011 Transfer, it would have been very easy to include such a term in the Deed. The fact that no such term was included suggests that it had not been discussed with the solicitor who prepared the Deed at the request of Ertunc. It is also important that no solicitor was called by the Plaintiffs to give evidence of any such instructions.
32. In this regard, it is relevant to consider the statement of principle stated by the Full Federal Court in Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [81] that: … where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge that onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 per Dixon CJ; Shalhoub v Buchanan [2004] NSWSC 99 at [71] per Campbell J this principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 explained at [440], "[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied."
33. Similarly, the statement by Campbell J in Shalhoub v Buchanan [2004] NSWSC 99 at [71] (referred to in Coshott v Prentice) is also relevant: "....failure of a party who bears an onus of proof to call an available witness who could cast light on some matters in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of Lord Mansfield's maxim that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" (Blatch v Archer (1774) 1 Cowp 63 at 65; recently quoted with approval by Gleeson CJ in Azzopardi v R (2001) 205 CLR 50 at 59)."
34. Furthermore, even if there had been discussion between Ertunc and Durcan about the topic, there is simply no evidence at all that Erdinc was a party to that conversation. The text message that he sent to Ertunc and the conversation had by them earlier suggests that he was not a party to any such conversation and that he was not told of Ertunc's conversation with Durcan.
35. This does not mean, however, that at a later time, Ertunc and Erdinc could not have transferred the remainder interest to Durcan if they had chosen to. Had the occasion arisen, there would have been no impediment to Ertunc and Erdinc consenting to Durcan lodging a Transfer of the fee simple from them to her together with the Certificate of Title. However, that would have required their further instructions.
36. In all the circumstances, I am not satisfied that there was any agreement of the type that has been alleged.
37. For the same reasons I am of the view that the other grounds advanced by Durcan and Ertunc fail. Once there was a grant of the life estate by Deed, and following the explanation given by the solicitor to Durcan about that Deed, it is highly unlikely that she could reasonably hold a belief that the Property had been gifted to her, or that whatever the legal position was in relation to title, the Property belonged to her. Any such belief, if held by her, was not reasonably available on the objective facts. By way of example, I refer to her conversation with Ertunc.
38. Also, by entering into the Deed, any belief that an assurance to transfer the Property to her was binding and irrevocable was no longer reasonably available. Even if Durcan maintained a "hope" or "a confident expectation", that they would do so, neither was sufficient to give rise to an equitable estoppel. The full impact of the failure to have the Property transferred to Durcan because of an impossibility to pay the stamp duty on the Transfer would have been present in the mind of all three participants.
39. The relative simplicity of the Deed between the parties made abundantly clear that any discussions previously held were superseded and new rights, entitlements, and obligations, were being created. In this regard, I refer to the particular Clauses of the Deed referred to earlier. There is no hint in the evidence that these Clauses were not explained to Durcan or that she did not understand them.
40. The same may be said for any belief asserted to have been held by Ertunc. Any reasonable reading of the terms of the Deed would have made this clear.
41. In relation to Erdinc, there is simply no conversation with Durcan that could be relied upon, in 2012, which could have created, or encouraged, an expectation that she would have greater than a life estate in the Property, or that he was prepared to then transfer his share of the Property to her. It is, therefore, impossible to find any representation made by Erdinc upon which Durcan could have relied.
42. It follows that I am not satisfied that there was any shared common assumption between Durcan, Erdinc and Ertunc. All seemed to be well aware that any transfer of the Property to her, by way of a gift, could not be effected at the time, since the amount required to pay the stamp duty on the Transfer could not be raised. It was, in that circumstance, that other options were then considered and discussed. Thereafter, they entered into the Deed upon the acceptance that there had not been a valid gift of the Property.
43. The fact that Durcan paid expenses in relation to the Property prior to some of the discussions does not assist her. She has not established, in my view, that it would be unconscionable for Seda to fail to carry out any alleged representation about the Property being Durcan's simply based on the modest amount spent on the property. After all, Durcan remained living in the Property for about 15 years.
44. Nor has Durcan established that it would be inequitable for Seda to resile from any representation without repaying Durcan the amounts expended. The outgoings on the Property and the work carried out on it, whilst not all strictly items of repair or maintenance, are all of a type which houses commonly have carried out, periodically, when lived in. Furthermore, any improvements made have not been shown to result in any increase in the value of the Property. Finally, the expenditure has not been shown to have been carried out at the request or the insistence of Ertunc or Erdinc. Indeed, the evidence is to the contrary.
45. Furthermore, it is difficult to see that Durcan suffered any detriment in the events that occurred. As stated, she had been living, and continued to live in the Property. She had maintained it and, for the most part, had paid all of the outgoings, and continued to do so. This is not a case, for example, where she gave up accommodation to move into the Property. Effectively, nothing changed. She continued to live in the Property as she had always done, (which, of course, was the intention of Ertunc and Erdinc at the time of its purchase) and the registration of the life estate on the title to the Property protects her occupation of it until death.
46. It follows that Durcan has not established any detrimental reliance.
47. Consequently, the Plaintiffs have not established that Seda holds Erdinc's interest in the Property on trust for the first Plaintiff and the Plaintiffs' claims must be dismissed so far as they relate to Erdinc's interest which will pass to Seda. I so order.
48. Ertunc appears to accept that he holds his interest, as tenant in common, in the Property, on trust for Durcan.
49. Consideration will need to be given by the parties to the removal of the caveat registered by Durcan on title (as shown in Ex. D). The caveat should be removed within 21 days.
50. There is no reason why costs should not follow the event. I order the Plaintiffs to pay the Defendant's costs of the proceedings.

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: 20 October 2016