Joseph Saliba & Anor v Thomas Tarmo

CITATION : Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581

CATCHWORDS : EQUITY - constructive trust - services provided on representations of beneficial interest in deceased's estate - whether parties shared necessary common intention - whether plaintiffs changed positions to their detriment - general principles considered - ESTOPPEL - equitable estoppel - whether plaintiffs acted to their detriment on reliance of deceased's representations - whether unconscionable for deceased's executor to deny that assumption

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Gillett v Holt [2001] Ch 210 Grant v Edwards [1986] Ch 638 CASES CITED : Green v Green (1989) 17 NSWLR 343 Jennings v Rice [2003] 1 P&CR 8 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 Vukic v Luca Grbin & Ors: Estate of Zvonko Grbin [2006] NSWSC 41

Joseph Saliba - first plaintiff PARTIES : Mona Saliba - second plaintiff Thomas Tarmo - defendant

COUNSEL : I M Khan/C Wilson - plaintiffs D Liebhold - defendant

SOLICITORS : Gerard Malouf & Partners - plaintiffs Thomas Tarmo & Co - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4351/07 Joseph Saliba & Anor v Thomas Tarmo JUDGMENT 1 His Honour : These proceedings concern the estate of the late Maria Stelmach (the deceased) who died on 3 February 2007, aged 83 years. She left a will dated 20 October 2005 by which she appointed the defendant sole executor. Probate was granted on 5 April 2007. 2 The plaintiffs claim that the defendant holds one half of the deceased's estate under a constructive trust, alternatively by way of estoppel arising from their detrimental reliance on representations made to them by the deceased to the effect that upon her death they would inherit a one half interest in her estate. For convenience, where appropriate, I shall refer to the plaintiffs by their first names. 3 The deceased's husband died in about 1989. There were no children. 4 On 9 November 2001 the deceased made a will in the office of her solicitor. The plaintiffs and their son, Michael, accompanied her on that occasion when, in their presence, the deceased instructed the solicitor on the terms of her will. The will she made that day appointed Michael executor and trustee. She directed her property be converted into money, and left the net proceeds of her estate as follows: "(a) As to one-half (1/2) for MARIA MAHAR absolutely but if she should predecease me then for such of her children MELISSA MAHAR , EMILY MAHAR , CHRISTOPHER MAHER and LAUREN MAHAR as survive me and if more than one in equal shares absolutely. (b) As to one-half (1/2) for such of JOSEPH SALIBA and MONA SALIBA as survive me and if more than one in equal shares absolutely but should they both predecease me then for such of their children TONY SALIBA , SAM SALIBA , ROBERT SALIBA and MICHAEL SALIBA as survive me and if more than one in equal shares absolutely." 5 The plaintiffs claim that on numerous occasions before 9 November 2001 the deceased spoke to Mona words to the effect that as she and her husband had been so good to her, she would leave half her house to them, then being her property at Bankstown (the property). They claim that they were induced by the deceased's representation made on 9 November 2001 to continue and intensify the voluntary services by way of assistance, care and maintenance they were then providing to the deceased, and that thereafter they continued to provide such services. 6 The deceased made a new, and last, will on 20 October 2005 by which she left legacies of $10,000 to each of Mona and two other persons, and the balance of her estate to be divided equally between her two nieces residing in America, namely Maria Mahar and Katharina Nilan. No other provision was made for either plaintiff. 7 The plaintiffs claim that, in the circumstances, the estate is subject to a constructive trust as to a one half share, alternatively the deceased was estopped from denying their entitlement to such share. 8 The defendant denies the existence of the trust claimed, or that the circumstances gave rise to any estoppel. 9 I set out below the material facts as I have found them to be, noting that much of the evidence was undisputed. In my assessment, each of the witnesses who gave evidence endeavoured to give it truthfully, and to the extent that recollection allowed. I reject the defendant's submission that Mona was an unreliable witness whose evidence should not be accepted unless corroborated. I found the plaintiffs appeared to be unsophisticated people in their late sixties or early seventies. In giving evidence they required the assistance of an interpreter. On occasions, the answers by Mona to questions without such assistance were unclear, and inconsistent with other answers. Mona's recollection of details such as the year in which an event happened was often imperfect. To the extent her evidence was doubtful, it related only to peripheral matters. Taken overall, I am satisfied Mona's evidence on matters relevant to the substance of the claims was generally reliable, and honestly given. I accept it. Furthermore, I am aware of the usual requirement that courts should closely scrutinise a claim against an estate in circumstances where the only person who can contest the issues is deceased. Accordingly, I have adopted a cautious approach in assessing the evidence of both plaintiffs. In accepting their evidence as generally reliable, I have kept in mind the unchallenged evidence of Adel Fida which supports the plaintiffs' accounts of the care given to the deceased, and of Pamela Bailey which supports Mona's account of visits to the deceased at the Bankstown Aged Care Facility, and the close relationship between them. 10 During the mid 1980s the plaintiffs and their four children came to live in Gordon Street, Bankstown and became friends with their near neighbours, the deceased and her late husband. Mona had retired from work in a factory in 1988 and Joseph was then working as a factory hand. When her husband died in 1989, the deceased was 66 years old and alone. Thereafter a close and continuing relationship between her and the plaintiffs developed. 11 Mona visited the deceased almost daily, and took her shopping every week. She attended to the deceased's needs for personal care, banking, housework including cleaning and maintenance, and generally met her needs including cooking and visits to doctors, on request. Joseph regularly assisted in these activities. They frequently visited each other's houses. The plaintiffs were motivated by friendship to provide these services, and received no payment for them. 12 On 12 March 1998 the deceased underwent a hip replacement operation. The plaintiffs continued to provide care. On numerous occasions before and after that event, the deceased spoke to the plaintiffs to the following effect: "You are both so good to me. I am going to leave you half of this house in my will." 13 On 9 November 2001 at the deceased's request, the plaintiffs and Michael accompanied her to the office of her solicitor, Mr Tim Oliffe, in Bankstown. In their presence, the deceased said to Mr Oliffe words to the effect: "I want you to make my will, and I want to leave half my property to Mona and Joe."

In response to Mr Oliffe's suggestion to appoint Michael Saliba as her executor she said: "Yes. He is a real estate agent and I want him to sell the house after I am gone. So he is the right man." 14 The will was then drafted, signed by the deceased and duly witnessed. The next day, Mona took the deceased to her bank where she left it for safekeeping. The deceased gave a copy to Michael. As earlier stated (par 4), relevantly the will provided for one half of the net estate to be left to the plaintiffs. 15 In early 2002 the deceased underwent a second hip replacement operation. Prior to the operation she was taken by the plaintiffs and members of their family to various doctors for assessment by reason of her age and condition. After the operation the plaintiffs agreed with her request for accommodation at their house until she recovered. There the plaintiffs rendered full time care until she returned home two weeks later. Care included the provision of meals, assistance with bathing and personal care, and with movement. 16 Mona's affidavit of 9 November 2007 included the following statements, which were not challenged or contradicted: "17. … My husband helped me to look after her and we gave her more special care after her second operation when she spent a couple of weeks at our home and after she returned to her home. 18. I felt that I had to take special care of Maria because she was not only my friend but also because she had left us half her house. 19. This was one of the reasons why my husband and I agreed to look after Maria at our home after her second hip operation." 17 Joseph's affidavit of 9 November 2007 included the following statements, which were not challenged or contradicted: "9. Although I used to visit her often and help her with banking and payment of her bills before her first hip replacement, I was even more keen to help her in every way afterwards after she left me and my wife half of the property, I felt obliged to help even more. I visited her home virtually every day and attended to her vegetable and flower garden. At time [sic] I also mowed the lawn. 10. This is why my wife and I agreed to keep Maria at our place for a couple of weeks after her second hip operation. We gave her around the clock care during this time." 18 After the deceased returned to her own house, the plaintiffs visited her daily, each time spending about three hours with her. Mona did her grocery shopping, cleaned the house, cooked meals, fed her, showered her, fed her pets, and took her for post operative check ups and physiotherapy. She said she gave her all her time. Joseph did the heavier chores around the house including mowing and gardening. 19 In January 2004 the deceased suffered a stroke at home. She was found by Joseph lying on the garage floor, apparently unconscious. She was taken to the plaintiffs' house, and arrangements were made for her admission to Bankstown Hospital. She was left with permanent cognitive impairment and severe mobility problems. She never returned home. 20 On 8 March 2004 the deceased was discharged from Bankstown Hospital and admitted to Belmore Nursing Home. 21 On 20 April 2004 the Guardianship Tribunal appointed Mona as manager of the deceased's property and affairs subject to the supervision of the Protective Commissioner, having found the deceased was incapable of managing her financial affairs. Mona's duties included looking after the deceased's house, and paying accounts as they fell due. Mona was also required to keep accounts and regularly report to the Guardianship Tribunal. 22 On 6 May 2004 the deceased was admitted to the Bankstown Aged Care Facility, and there remained until she died on 3 February 2007. 23 On 31 May 2005 Mona arranged with a real estate agent to let the deceased's house to tenants. Until that time Joseph maintained the house by gardening, lawn mowing, and general cleaning. He received no payment and expected no material or financial reward for his work. At Easter and Christmas the deceased would give him cigarettes or a bottle of whisky. 24 It was Mona's practice to visit the deceased at the Belmore Nursing Home and Bankstown Aged Care Facility several times a week. Sometimes she would give her lunch, take her on outings, or to dental or medical appointments. Joseph also visited from time to time. From the deceased's funds Mona provided clothes for her, and made payments, for example, to the deceased's friend Betty Boughton for looking after the dog. 25 On 18 October 2005 the deceased attended the defendant's office. She said to him words to the effect: "I have made a number of wills but I am not happy. I wish to leave most of my estate to my family in America."

The defendant took further instructions for the preparation of the will, which was signed by the deceased on 20 October 2005. As earlier stated (par 6) the only provision for either plaintiff was a legacy to Mona of $10,000. 26 In cross-examination Mona said that at some time while the deceased was in the Bankstown Aged Care Facility she came to believe that the deceased had made a new will. She said she was not worried that the deceased may have changed her will, and could not stop her from doing so. She agreed that she did not seek advice as to whether or not, at the time, the deceased was free to make a new will. There was no evidence that, prior to the deceased's death, the plaintiffs knew of the contents of any will other than the will of 9 November 2001. The constructive trust claim 27 The circumstances in which a court of equity will intervene to declare the existence of a beneficial interest in property were considered in Green v Green (1989) 17 NSWLR 343. With reference to Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, Gleeson CJ p 353 said: "… the unifying principle underlying the cases where such intervention is regarded as appropriate is that in the circumstances of the case, and in accordance with equitable doctrines, it would be unconscionable on the part of the person against whom the claim is set up to refuse to recognise the existence of the equitable interest …"

His Honour continued (p 355): "In the judgment of Vice-Chancellor Browne-Wilkinson in Grant v Edwards his Lordship identified as two matters to be demonstrated when a party seeks to establish a constructive trust based on actual intention, first, that there was a common intention that both should have a beneficial interest, and secondly, that the claimant acted to his or her detriment on the basis of that common intention. His Lordship pointed out that proof of such common intention can be direct, as for example, by evidence of express agreement or the making of admissions, or such common intention can be inferred from the making of contributions to the cost of a property, or meeting expenses in maintaining it. That, however, is merely one of the ways, but not the only way, in which the evidentiary basis for inferring a common intention can be laid. As was earlier observed, such conduct may also be of considerable factual importance in establishing an acting to detriment, but once again, in that respect its status is evidentiary and it is not a matter of legal necessity." 28 His Honour also approved of the principles enunciated by the Vice Chancellor in Grant v Edwards [1986] Ch 638, p 657 in the following passage: "In many cases of the present sort, it is impossible to say whether or not the claimant would have done the acts relied on as a detriment even if she thought she had no interest in the house ... once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house ¼ The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly, in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so: see Greasley v Cooke [1980] 1 WLR 1306." 29 For the plaintiffs it was submitted that the express common intention that they were to have one half of the deceased's estate was established. It was put that this was evidenced by the numerous statements made by the deceased to Mona to that effect, and by the terms of the will of 9 November 2001 of which the plaintiffs were made aware by the deceased at the time, and which they saw for themselves. It was put that the clear implication was that in return, the plaintiffs would continue to look after her. 30 Further, it was submitted that, in the belief that they had such interest in her estate, the plaintiffs, to their detriment, continued to provide services to the deceased, the extent of which increased to meet her needs after the second hip operation in early 2002 whilst recovering at their home, and were adapted to fulfil her requirements over the following years. 31 Reliance was placed on the evidence of Mona and Joseph to the effect that they felt obliged to look after the deceased at their home after the second hip operation and to take special care of her because she had left them half her property to show that the holding out to them of an interest in her estate acted as an inducement to provide the services. 32 Finally, it was submitted that, in the circumstances, it was unconscionable to refuse to recognise the existence of a beneficial interest in the deceased's estate which conduct the court would remedy by the imposition of a constructive trust having regard to the principles in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner. 33 The defendant contended that the evidence fell short of proving that the plaintiffs assumed that the deceased was not free to change her will. Support was sought from evidence of Mona's failure to complain to the deceased or to her solicitor upon learning of the existence of another will, and by reference to earlier claims made by the plaintiffs in these proceedings that the will of 20 October 2005 be set aside on the ground of incapacity. Alternatively, it was put that if that assumption was made it was not attributable to the deceased, there being no evidence that she promised not to make a new will. 34 It was also submitted that there was no evidence that the plaintiffs continued assistance was provided in reliance upon, or induced by, the expectation of inheritance, or that the plaintiffs would not have continued to provide it if the will of 9 November 2001 had not been made; the evidence went no further than to show that all times the assistance was provided out of friendship without expectation of gain or reward. In any event, so it was put, the claim that care was intensified after the will lacked support. 35 Furthermore, it was submitted that the plaintiffs did not change their position in any way on the basis of their expectation, and, accordingly, suffered no detriment in continuing to provide care. It was also put that it was not shown that the deceased was aware that they continued to provide care on the faith of her representation. 36 Although the defendant accepted that the deceased in her will represented her intention to leave half her estate to the plaintiffs, it was submitted that neither the case for a constructive trust nor for relief under the doctrine of equitable estoppel had been made out. 37 Much of what was put to the effect that the plaintiffs' claim lacked evidentiary support depended upon the court's rejection of Mona's evidence unless corroborated on the ground she was an unreliable witness. Nevertheless, counsel for the defendant said (T p 114, ll 41-46): "… In so far as your Honour were to accept all or part of the plaintiffs' evidence, your Honour would be satisfied that they were encouraged and that they did rely. But the cases … are clear that reliance has to be reasonable, it has to have some relationship with the intention of the representor and/or the knowledge of the representor." Consideration 38 In many cases, and this is one of them, claims of a constructive trust and of equitable estoppel may be indistinguishable where the claimant's expectations and the element of detriment to the claimant will have been defined with reasonable clarity ( Jennings v Rice [2003] 1 P&CR 8, par 45; Grant p 656). Accordingly, I take as applicable to a constructive trust claim the following observations of Lord Justice Robert Walker in Gillett v Holt [2001] Ch 210, p 225: "… the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round."

His Lordship then referred with approval to the following passage from the judgment of Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at pp 151-152 in which he stated that the principle of proprietary estoppel: "requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick of unconscionable behaviour." 39 The following is a summary of relevant facts and circumstances earlier referred to. 40 After the death of her husband in 1989, a close friendship between the deceased and the plaintiffs developed, including a relationship under which the plaintiffs continuously and voluntarily provided extensive services by way of personal care, maintenance, and assistance. On numerous occasions prior to making her will on 9 November 2001 the deceased told them, in effect, that because they were so good to her she would leave them half her house in her will. 41 On 9 November 2001 at the request of the deceased the plaintiffs accompanied her to her solicitor's office for the purpose of making her will. In their presence she stated her intention to leave half her property to them. She then made the will which included a provision to that effect, and appointed Michael as executor. As copy of the will was given to Michael. 42 Thereafter, the plaintiffs continued to provide services as before, the nature and extent of which were varied to meet the needs of the deceased, exemplified by the accommodation and care at the plaintiffs' home for her recovery after the second hip operation in early 2002, the responsibilities undertaken by Mona after appointment on 20 April 2004 as manager of her property and affairs, and the regular visits to the nursing home and aged care facility. 43 There can be no doubt on the evidence that both Mona and Joseph knew that they were to inherit half the deceased's estate. There can also be no doubt that in continuing to care for the deceased they acted, not only out of friendship, but out of a sense of obligation or duty towards her in return for the inheritance upon her death. 44 In my opinion, and I find, the statements made by the deceased prior to the making of her will, and the terms of the provision contained in the will, are direct evidence of an express common intention that the plaintiffs would be given a half share of her property. In combination with the evidence of the nature of the relationship before and at the time the will was made, the inference is inescapable that the parties intended that the plaintiffs would continue to look after the deceased until she died, and in return they would benefit from the share in her estate. I am satisfied that this was the common assumption and intention upon which the parties proceeded. 45 These conclusions are reinforced by Mona's evidence that the deceased's promise or representation influenced and induced the plaintiffs to continue to care for her. The following extracts will suffice:

T p 20, ll 42-46: "A. WITNESS: … but after Maria, she give half the house for me, I felt I have to give her special care because we have to. Then I try, I start with my husband, my husband do everything outside. I clean the house for her and do everything she need."

T p 32, l 48 - T p 33, l 3: "A. WITNESS: … Linda, she told me please because you are her close friend, you can look after her, I agreed to do this job (manager of deceased's affairs) for her. This is not really easy to be financial manager, too much work, too much to do but because I care about this lady and she left me half the house I have to do everything she want. "

T p 57, ll 46-49: "A. WITNESS: … just I work very hard for her. After her second operation I brought her to my place for two week. I give her around the clock care because she'd done the half the house for me, me and my husband, we work very hard for her." 46 On the facts which I have found, the defendant's submissions that the plaintiffs failed to prove inducement and reliance, and that the extent of care provided after the will had intensified, cannot be sustained. Significantly, the defendant's counsel acknowledged (T p 114) that if the plaintiffs' evidence was accepted I "… would be satisfied that they were encouraged and did rely". As I have accepted the plaintiffs' evidence, the condition has been fulfilled, enabling that issue to be determined in their favour. 47 To the extent that it is necessary to do so, I find that the plaintiffs changed their position on the faith of the representations. The level of care, and the nature of general assistance provided were substantially more extensive than before the representations were made. Doubtless this was because circumstances changed according to the deceased's age, condition, and increasing infirmity, particularly after the occasions of her second hip operation, and her stroke. On this issue it is also relevant that after the will was made the plaintiffs acted in the belief that they were obliged or constrained to continue their assistance, whereas before their conduct was motivated simply by friendship unaffected by any sense of duty. 48 With regard to the principles considered in Green , Grant , and Gillett there is, in my opinion, sufficient detriment to entitle the plaintiffs to the relief claimed. As earlier indicated, the representations by the deceased engendered in the plaintiffs the belief that they were duty bound to continue to provide unpaid care to meet her needs for the rest of her life. Put another way, in reality they denied themselves the freedom to cease providing such services, a situation which must have been intended by the parties at the time the expectation of inheritance was established. Taken overall this is a case in which it may reasonably be said that the issues of assurance, reliance and detriment are intertwined ( Gillett p 253). 49 For these reasons I am satisfied that the plaintiffs have demonstrated that they and the deceased had an actual common intention that the plaintiffs were to have a beneficial interest in one half of the deceased's estate upon which the plaintiffs acted to their detriment. The plaintiffs' submissions on this claim should generally be accepted. 50 Accordingly they are entitled to a declaration as claimed, to the effect that the defendant holds a one half share of the deceased's estate upon trust for them, and to consequential relief. 51 Although it is unnecessary to decide, I would also hold that the circumstances justify the imposition of a constructive trust on the ground that the defendant's refusal to recognise the existence of the interest claimed amounts to unconscionable conduct which this Court should remedy by declaring the trust the plaintiffs' seek ( Muschinski p 620; Baumgartner p 149-150). The equitable estoppel claim 52 In Vukic v Luca Grbin & Ors : Estate of Zvonko Grbin [2006] NSWSC 41 Brereton J provided the following summary of the relevant principles, which I respectfully adopt: "27 Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [ Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641, 675; Thompson v Palmer (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation [ Crabb v Arun District Council [1976] Ch 179, 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated [ Waltons v Maher , 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [ Waltons v Maher , 423 (Brennan J)]." 53 The conduct of the deceased in making her will of 20 October 2005 evidenced a departure from the representations upon which the plaintiffs had acted in caring for her as described in these reasons. As I have found, the representations were made orally on numerous occasions by the deceased, and in writing in the will of 9 November 2001, were intended to be relied upon, and were in fact relied upon. They were tantamount to a promise. It is irrelevant that a person is usually free to change a will. In the circumstances of this case it was the plaintiffs' reliance on the promise of a share in the estate which made it irrevocable ( Gillett p 229). Alternatively, I am satisfied that the circumstances support the finding of an implied promise by the deceased not to revoke the relevant provision in her will of 9 November 2001. 54 For the same reasons I uphold the claim to a constructive trust I find that, in the all circumstances, it was unconscionable for the deceased and the defendant to depart from the representations that the plaintiffs would inherit a one half share of the estate in return for benefits to provided by and, in fact, obtained from, the plaintiffs. 55 Accordingly, the plaintiffs are entitled to the relief they claim by the application of the principles of equitable estoppel. Conclusion 56 It is appropriate to direct the plaintiffs to bring in short minutes to give effect to these reasons. As to the question of costs, my present view is there should be an order that the defendant pay the plaintiffs' costs of the proceedings. However, failing agreement, I will afford the parties the opportunity to address me on this issue. Arrangements should be made with my associate by 1 July 2009 for the re-listing of the matter. **********

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