Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick - [2018] NSWSC 692 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick

[2018] NSWSC 692

Supreme Court of NSW|2018-04-16|Before: Sackar J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-04-16

Before

Sackar J

Catchwords

[1987] HCA 59 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
[2002] HCA 8 Giumelli v Giumelli (1999) 196 CLR 101
[1999] HCA 10 Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 Muschinski v Dodds (1985) 160 CLR 583
[2014] HCA 19 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588

Source

Original judgment source is linked above.

Catchwords

[1987] HCA 59 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153[2002] HCA 8 Giumelli v Giumelli (1999) 196 CLR 101[1999] HCA 10 Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 Muschinski v Dodds (1985) 160 CLR 583[2014] HCA 19 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588[1999] HCA 3 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Judgment (31 paragraphs)

[1]

Solicitors: Bundock Law (Plaintiff) Photios Vouroudis & Co (Defendant) File Number(s): 2018/50935

[2]

Judgment Proceedings Background facts Legal principles Equitable estoppel Intention to enter in legal binding relations The rule in Browne v Dunn Parties' submissions Plaintiff Equitable estoppel Breach of contract Further considerations Defendant Equitable estoppel Breach of contract Further considerations Evidence Evidence of Ms Lorena Zupicic Evidence of Edi Zupicic Evidence of Mr John Aarons Evidence of Giovanna Moretti Evidence of Christiane Whitham-Taudien Evidence of Dr Trachtenberg Evidence of Mr Eidan Havas Evidence of Ms Angela La Camera Paino Consideration Mr Novick The Defendant Defendant's credit: an overview Relationship between Defendant and Mr Novick Defendant's conduct concerning Mr Novick's money Defendant's control over Mr Novick Were the promises made? Did the Plaintiff act to her detriment? Conclusion

[4]

Background facts

Where I refer in this judgment to persons by their surnames or otherwise, I intend no disrespect.
Mr Novick was born on 21 November 1927 in Italy.
He moved from Italy to Australia in 1947. In Australia he worked in various semi-skilled jobs including at Johnson & Johnson in Sydney until approximately 1994 when he retired.
In 1994, Mr Novick purchased the apartment in Potts Point. At approximately this time, he encouraged the Plaintiff to emigrate from Croatia to Australia. He was then approximately 67 years old and the Plaintiff was approximately 25 years old.
The Plaintiff was born in Croatia and moved to Australia in 1994. She married her husband Edi Zupicic shortly afterwards (Mr Zupicic had also moved from Croatia and had been living in Australia since 1985).
When the Plaintiff arrived in Australia in 1994, she had one family contact Mr Novick. Her involvement with Mr Novick and his family was a long one. The Plaintiff had lived with Mr Novick's mother for a period when she was about five years old.
In 1994, the Plaintiff began work as a waitress and cashier on a part-time basis at Dee Why RSL, where she still works to this date.
In addition the Plaintiff states that in 1995 she began visiting Mr Novick at his apartment in Potts Point weekly (travelling from the Northern Beaches of Sydney). She would take cooked meals, fruit and groceries and other domestic items to him. Her husband would also do maintenance work on the Potts Point apartment (Plaintiff's First Affidavit [20]-[21], [30], [40]).
From 1994 to 2016, it appears that Mr Novick and the Plaintiff had a close family relationship. Although the precise extent of this relationship is contested, it appears on one view (Plaintiff's First Affidavit [17]-[19], [27]; Mr Zupicic's First Affidavit [14]): 1. Mr Novick would stay at the Plaintiff's home in the Northern Beaches of Sydney for Christmas and Easter for a number of days. 2. Mr Novick would often visit the Plaintiff's home on weekends on a weekly or fortnightly basis to spend time with her family. 3. Mr Novick and the Plaintiff enjoyed each other's company and Mr Novick liked having frequent contact with her family, such as talking with Mr Zupicic and babysitting or playing games with her two sons when they were young. 4. The Plaintiff would take Mr Novick to his doctor's appointments in Potts Point, or specialists in Chatswood and Darlinghurst.
On 5 March 1997, the Plaintiff and her brother Elido Gobo purchased property in Croatia from Mr Novick for an amount of $4000 (Exhibit P1). Whether Mr Novick received this amount from the Plaintiff is, on one view, contested.
In 1998, the Plaintiff asserts Mr Novick requested more assistance from her in washing his clothes, cleaning, doing the shopping and errands. She alleges Mr Novick then stated (Plaintiff's First Affidavit [21]): I want to repay you and your family for all the work you have done for me and the work you are going to do for me in the future. Instead of me paying you, I am just going to leave you everything I have in my Will.
From 1998 to 2016, the Plaintiff alleges Mr Novick made similar representations to her repeatedly on average every three to four months (Plaintiff's Second Affidavit [4]-[5]). He would allegedly say: Lorena you have been wonderful to me and I know you will be looking after me for some time. I want to repay you for all of your effort by leaving you everything I have in my Will.
In response to these representations, the Plaintiff asserts on her understanding and expectation that she was to receive the whole of Mr Novick's estate. She applied countless days of her life and spent money giving and providing help and services to Mr Novick (Plaintiff's Third Affidavit [6]-[8]).
In October 1998, Mr Novick had hip-replacement surgery, and the Plaintiff states she assisted him daily for four weeks in his recovery. This involved activities such as cleaning, cooking, shopping and washing clothes (Plaintiff's First Affidavit [31]).
In 5 April 2006, the Defendant was awarded an amount of $2,046,575.90 in separate and unrelated proceedings in relation to her then de facto relationship with Salvatore Paino (Paino v Paino [2006] NSWSC 218).
In 2007, Mr Aarons moved into an apartment three doors along from Mr Novick's apartment in Potts Point (Mr Aarons' Affidavit [1]). He became friends with Mr Novick.
On 29 October 2008, the Defendant successfully appealed the award of $2,046,575.90 provided to her in Paino v Paino [2006] NSWSC 218 as incorrectly failing to accept the expert evidence of the value of properties owned by Salvatore Paino on the island of Filicudi off the coast of Sicily (Paino v Paino [2008] NSWCA 276).
At Christmas of 2009 the Defendant alleges she first met Mr Novick when she invited her friend Giovanna Moretti and her partner Hasan to come to her home for Christmas lunch. When Ms Moretti said she was running late as they were visiting an elderly friend Mr Novick, the Defendant invited Mr Novick to join them for Christmas lunch with Ms Moretti and Hasan (Defendant's First Affidavit [6]). However on the evidence of Ms Moretti and the Plaintiff the Defendant first met Mr Novick in August 2013 (Plaintiff's First Affidavit [42]; Ms Moretti Affidavit [12]).
From 2010 to 2016, the Plaintiff alleges she would also pay yearly for Mr Novick's car registration, insurance and fuel. Her husband would fix and maintain the car (Plaintiff's First Affidavit [25]).
In 2010, Mr Novick developed a heart condition which required frequent visits to doctors. The Plaintiff asserts she continued to collect him and drive him to each of his appointments from 2010 until his death (Plaintiff's First Affidavit [34]).
On 19 January 2011, in unrelated proceedings, the Defendant lodged a caveat (AG12258P) on a property in McLachlan Avenue Darlinghurst NSW (Exhibit P3, 101-2). The registered proprietor of this property was listed as Luigi Tancredi. The caveat was issued by virtue of an alleged equitable interest pursuant to a partnership agreement between the Defendant and Mr Tancredi as of 9 July 2009. The caveat was lodged by Coopers Law Firm, Double Bay.
On 1 June 2011, Mark Kennedy of Anderson & Sjoquist Lawyers prepared a will for execution by Mr Novick. This will would have appointed the Plaintiff as the executor and trustee of Mr Novick's estate and provided the whole of his estate to her absolutely (Exhibit P4). This will was sent to Mr Novick but no evidence is available that this will was ever signed or executed.
In 2012, the Plaintiff alleges Mr Novick said (Plaintiff's First Affidavit [35]-[36]; Plaintiff's Third Affidavit [4]): You work so hard and you always come and help me. You feed me, clean my clothes and clean my house. Why don't I sell this apartment and give you the money from the sale and I can move into your house at Mona Vale. That way you would not have to work so hard and travel so much. I have given you everything in my Will because you are the one who is helping me and you are the closest member of my family.
On 5 April 2013, in unrelated proceedings, the Defendant lodged a further caveat (AH663491Y) on the property in McLachlan Avenue Darlinghurst NSW (Exhibit P3, 103-4). The interest alleged was beneficial ownership of the property on trust, by virtue that the Defendant alleged the registered proprietor (Mr Tancredi) used funds belonging to her to purchase the property.
In August 2013, the Plaintiff and her husband travelled overseas for a four week holiday. They arranged for Giovanna Moretti (a good friend of Mr Novick) to look after him. However, it appears she fell sick and arranged for the Defendant to assist with his care (Plaintiff's First Affidavit [42]). The relationship between Mr Novick and the Defendant evidently strengthened.
On 27 March 2014, in unrelated proceedings, the Court ordered by consent that Mr Tancredi held the property in McLachlan Avenue Darlinghurst NSW on trust for the Defendant (that is, Ms Paino) (Exhibit P3, 106). Mr Tancredi also undertook to make no claim against the Defendant in relation to an amount of jewellery.
In May 2014, Mr Zupicic is asserted to have renovated the Defendant's kitchen at a cost of approximately $11,000 on materials and fittings (Mr Zupicic's First Affidavit [28]). I note, however, the Plaintiff's first affidavit at paragraph 24 alleges kitchen renovations occurred in May 2015.
On 9 May 2014, Mr Tancredi transferred the property in McLachlan Avenue Darlinghurst NSW to the Defendant for nil consideration (Exhibit P3, 105).
In 14 August 2014, Mr Novick gave the Defendant an Enduring Power of Attorney (Exhibit ALCP1 Tab 7).
On 6 June 2014, Mr Novick made a will appointing the Defendant as sole executor and beneficiary drafted by Rhodes Associates solicitors. Jeremy Charles George Rhodes and Angela La Camera Paino were the executors and trustees (the June 2014 will) (Exhibit P3, 49-52). On or about 24 August 2014, Mr Novick made a will which provided, subject to any testamentary, estate or succession duties or otherwise, that the entirety of his estate would go to the Defendant (the August 2014 will). This will provided for Eidan Havas and Deborah Searle as executors and trustees (Exhibit P3, 53-56).
On 27 August 2014, the Defendant entered into a mortgage over the property in McLachlan Avenue Darlinghurst NSW, with the mortgagee listed as ANZ Bank (Exhibit P3, 107-8).
In 2015, the Plaintiff alleges Mr Novick said (Plaintiff's First Affidavit [22]): Lorena I have made sure you will be repaid for all your help, my Will says that you get all of my Estate. Don't worry you will get everything.
In February 2015, Mr Zupicic is asserted to have installed an air conditioning unit in Mr Novick's apartment at a cost of approximately $2,000 (Plaintiff's First Affidavit [24]).
In 28 July 2015, Mr Novick entered into a reverse mortgage with Commonwealth Bank of Australia (an Equity Unlock Loan for Seniors) with an opening balance available for drawdown of $213,950 (Exhibit P2, 7-20). On 30 July 2015, Mr Novick made a statutory declaration witnessed by Mr Havas in relation to this loan, noting he had received independent legal advice in relation to the reverse mortgage (Exhibit P3, 48; Exhibit P2, 25). In cross-examination, Mr Havas stated he had advised Mr Novick in writing not to take out the loan or reverse mortgage because he believed it was imprudent (including his belief the interest rate was exorbitant) (T154/6-49).
On 30 July 2015, Mr Novick wrote a note to the Defendant, stating (Exhibit D1): Dear Angela, Please accept this gift as a token of my appreciation for all your devotion & care of me you are an angel. Love Mario
On 5 August 2015, Mr Novick transferred an amount of $50,000 to the Defendant's account with ANZ Bank (Exhibit D2). This corresponds to a drawdown of $50,000 from Mr Novick's reverse mortgage loan on that date (Exhibit P2, 56).
On 12 August 2015, Mr Novick transferred a further amount of $50,000 to the Defendant's account with ANZ Bank (Exhibit D2). This corresponds to a drawdown of $55,000 from Mr Novick's reverse mortgage loan on that date (Exhibit P2, 56).
I should note Exhibit P2 pages 56-70 expose a number of further substantial transactions involving drawdowns from Mr Novick's reverse mortgage loan.
The Defendant has accepted she would make withdrawals from Mr Novick's reverse mortgage loan, and that for example she had access to his personal banking card and PIN (T193/37-41).
In approximately October 2015, the Defendant moved into Mr Novick's apartment in Potts Point (Defendant's First Affidavit [69]). The Defendant appears to have taken a role in caring for the Defendant, evidenced for example in a note compiled by the Defendant to Catholic Care Services which she arranged for Mr Novick (Exhibit ALCP1 Tab 4): PLEASE: - DO NOT ANSWER THE PHONE UNLESS ASKED BY MARIO - DO NOT ASK FOR MUSIC UNLESS HE WISHES TO HAVE IT ON HIMSELF - DO NOT OFFER TO COOK FOR HIM - DO NOT RUSH TO DO YOUR WORK as food cleaning requires time - DO NOT SIT DOWN TO HOLD LONG CONVERSATIONS WITH HIM - DO NOT ASK HIM PERSONAL QUESTIONS
On 18 November 2015, Mr Novick allegedly composed a note and an accompanying four page statement to the solicitor Mr Havas (Exhibit D7). This note recorded Mr Novick's apparent dissatisfaction with the care offered to him by the Plaintiff and Mr Zupicic. It also recorded the following other observations (with all spelling or grammatical errors reproduced): I only went back to visit my mother in 1973 when I met Lorena my second cousin for the first time when she was 5 years old. She was living in my house with parents (rent free). After she married Edi Zupicic, they came to Australia (about 22 years ago. Over this time I would spend Xmas with them and visit them occasionally … after Lorena & her brothr asked me to sell them a peace of land in Croatia we agred to pay me 2500$ each her brother pay me immediatly buth Lorena only gave me $1500 after all this years. … I started to look at them [the Zupicic family] in a differend way and feeling very upset an I could not trusted them especially when I found out that they had open my safe to look for the deed for my home and my will as I did not made the will shortly after I received by post a will prepeared by they solicitor with the letter asked me to sign leaving everything to Lorena; I was estremely upsed & tored up [sic].
From approximately August 2016 until his death, the Plaintiff alleges that Mr Novick's health deteriorated requiring frequent hospitalisation. The Plaintiff asserts that when Mr Novick was in hospital she would visit him on multiple occasions each week (Plaintiff's First Affidavit [49]-[50]).
On 10 August 2016, the Defendant sold the property at McLachlan Avenue Darlinghurst NSW to a third party for a consideration of $740,000 (Exhibit P3, 109).
On 10 November 2016, the Defendant entered into a contract for the purchase of a property in Morton Street, Parramatta for the price of $580,000 and a deposit of $58,000. The Defendant provided an address of Unit 7/10 Barncleuth Square Potts Point NSW (Exhibit P5).
In April 2017, a number of withdrawals were made from Mr Novick's reverse mortgage loan including for example $1,500 on 24 April 2017 and $3,000 on 27 April 2017 (Exhibit P2, 65).
On 24 April 2017, Mr Novick wrote a letter to the Defendant, a part of which is translated from Italian (ALCP1 Tab 2): My Dear My Dearest Angela Happy Birthday & Many Happy Returns In Italian: You have been the most beautiful thing which ever came in my life my love for you is eternal & growing stronger & stronger A warm hug Mario Novick
Between 12 April 2017 and 2 May 2017 Mr Novick was in St Vincents hospital with pneumonia (Exhibit ALCP1 Tab 6).
During May 2017, further withdrawals were made from Mr Novick's reverse mortgage loan including for $2,500 on 3 May 2017, $1,000 on 6 May 2017, $2,000 on 8 May 2017, $2,000 on 9 May 2017, $2,000 on 10 May 2017 and $2,000 on 18 May 2017 (Exhibit P2, 65).
On 25 May 2017, Mr Novick made a further will providing the entirety of his estate to the Defendant. In this will, the Defendant was also listed as executor and trustee (the 2017 will) (Exhibit P3, 86-8). This will was prepared with the assistance of Mr Vouroudis (who did not give evidence) who made a file note on 25 May 2017 at 11:00am (Exhibit P3, 57-61) of his meeting with Mr Novick, the Defendant and a Maria Sanfilippo. This note recorded, amongst other observations: 1. The Defendant appears to have introduced Mr Novick to Mr Vouroudis, as the note records "Angela said to Mario that he should speak to me to get the best advice". 2. Mr Vouroudis met Mr Novick in a café, apparently as Mr Novick was unable to ascend the stairs to the office. 3. Mr Vouroudis noted "Mario appeared very lucid and willing to speak to me." 4. Mario then purportedly set out his life details, including being born in 21 November 1927 in Italy, moving to Australia in 1947 where he first worked in South Australia and working at a power station and at a turbine station. He then moved to Sydney where he worked in a Pyrmont power station and spent five years in Tasmania in an aluminium plant. He moved back to Sydney, working for a British motor company for 2 years and then got a job with Johnson & Johnson as a mechanic for 27 years before retiring in 1992. 5. Mr Novick apparently told Mr Vouroudis the only asset he had was his unit valued at $500,000. He alleged he had borrowed $220,000 from Commonwealth Bank to pay for levies on the unit when a lift was installed two years ago. No mention was made of a gift to the Defendant of $105,000 or substantial sums of money spent on refurbishment of the unit as Mr Novick said the things in his house "have no value whatsoever". 6. Mr Novick asserted the Defendant had saved his life when he was sick in 2011. Mr Vouroudis noted Mr Novick said "I would have died if she did not take me home to look after me". Mr Novick alleged the Defendant was excellent in caring for him and doing things such as housework.
There is no mention in Mr Vouroudis' note of his knowledge of the two prior 2014 wills or when he prepared the May 2017 will. However it seems on 25 May 2017 a will was executed.
Seemingly on 27 May 2017, the Defendant recorded a conversation between Mr Novick and Mr Zupicic at paragraph 137 of her first affidavit (also recorded at Exhibit D6). This conversation included the statements: Edi: Ok, listen if you don't want us to see you but that's not very nice because Lorena has been with you all her life. I mean she comes there and all of a sudden you tell her not to come, that's not nice. I don't care Mario, but Lorena and if you make the decision and tell her not to come you are going to break her heart, don't you think? Mario: Oh boy! Edi, Edi I am not well I will call you when I feel better, until I feel better I don't want anybody to come and visit me. … Edi: You know, as I said to you, I don't care but you should say or you should have some respect to Lorena because Lorena has been with you a long time. Every time she did a lot of things with … She always had you for Christmas and Easter. Every time she comes to see you she brings you something. You can't tell her now, Lorena fuck off, I don't want to see you now! Because that's not nice that's not you is it? Mario that's how it is, isn't it? Mario: I get along with everybody but I don't know what's happening now.
On 29 May 2017 Mr Novick was admitted to St Vincents hospital with pneumonia. He was discharged on 15 June 2017 (Exhibit ALCP1 Tab 6).
In June 2017, further large withdrawals were made from Mr Novick's reverse mortgage loan including $2,600 on 1 June 2017, $2,000 on 5 June 2017 and $3,000 on 6 June 2017. A further $2,000 was withdrawn from an ATM in the Star Hotel on 6 June 2017 (Exhibit P2, 66).
On 1 July 2017, $1,000 was withdrawn from Mr Novick's reverse mortgage loan at The Star Pyrmont (Exhibit P2, 67).
On 6 July 2017, a further $2,300 was withdrawn. On 16 July 2017, $2,000 was withdrawn and on 17 July 2018, $10,000 and $2,000 was withdrawn (Exhibit P2, 67).
On 18 July 2017, the Defendant prepared a note, which Mr Novick appears to have signed below (Exhibit D3): [In apparently the Defendant's handwriting] I Mario Novick have asked Angela Paino to write this note after I spoke to my lawyer to make sure it will be confirmed in writing that she has always had my authority to use all of my money for whatever purpose, including her personal needs. Yours sincerely, [Below in apparently Mr Novick's handwriting] Yours sincerely, M Novick
Later that day, the Defendant took a screenshot image of the note and sent it to the solicitor Frank Vouroudis at 12.49pm (Exhibit D4). Mr Vouroudis gave no evidence before the court as to his involvement in the matter.
On 18 July 2017, Mr Novick died (POC [6]).
On 20 July 2017, $2,000 was withdrawn from Mr Novick's reverse mortgage loan. On 21 July 2017 a further $2,000 was withdrawn (Exhibit P2, 67).
On 4 October 2017, probate was granted on the 2017 will (Exhibit P3, 85).
On 27 January 2018, the Defendant invested an amount of $232,704.33 with ANZ Bank in a term deposit (Exhibit P6).
On 16 February 2018, the Defendant entered into a contract for the sale of the Potts Point apartment for consideration of $660,000, with a completion date being marked as 70 days after the contract date (Exhibit P3, 4).
On 19 February 2018, Slattery J made orders, including orders placing restraints on the Defendant's dealing with the Potts Point apartment.

[5]

Equitable estoppel

The general nature of constructive trusts and equitable estoppel was set out by Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101 at 111-2; [1999] HCA 10 as follows (citations omitted): In submissions to this Court, the term "constructive trust" was used to identify the nature of the equitable remedy granted by the Full Court. Care is required in the use of the term "constructive" in this context. Professor Scott has pointed out: "It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court 'constructs a trust'. The expression is, of course, absurd. The word 'constructive' is derived from the verb 'construe', not from the verb 'construct' ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them." The relief granted by the Full Court involved a trust that was "constructive" in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent's equity by bringing about a subdivision of the promised lot and conveying the title to it. The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the promised lot, to convey it to the respondent. A constructive trust of this nature is a remedial response to the claim to equitable intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the property in question, thereby bringing about a determination of the rights and titles of the parties.
Importantly for the purposes of this case, their Honours noted (at 113-4) (citations omitted): The present case fell within the category identified by the Privy Council in Plimmer v Mayor, &c, of Wellington where "the Court must look at the circumstances in each case to decide in what way the equity can be satisfied". Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust. At the heart of this appeal is the question whether the relief granted by the Full Court was appropriate and whether sufficient weight was given by the Full Court to the various factors to be taken into account, including the impact upon relevant third parties, in determining the nature and quantum of the equitable relief to be granted.
In Giumelli v Giumelli (1999) 196 CLR 101 at 121; [1999] HCA 10, their Honours also observed with approval McPherson J's analysis in Riches v Hogben [1985] 2 Qd R 292 at 301 of the distinction between equitable principles and the enforcement of contractual obligations: What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise. If there is such a promise, then the plaintiff must resort to the law of contract in order to enforce it, it being the function of equity to supplement the law not to replace it. The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates … Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff's part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.
See also generally Muschinski v Dodds (1985) 160 CLR 583 at 614-20; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137 at 146-8; [1987] HCA 59.
In Sidhu v Van Dyke (2014) 251 CLR 505 at 511; [2014] HCA 19, French CJ, Kiefel, Bell and Keane JJ observed (citations omitted): In The Commonwealth v Verwayen, Mason CJ described estoppel as "a label which covers a complex array of rules spanning various categories". His Honour went on to say of "titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence" that they are all "intended to serve the same fundamental purpose, namely 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted'". In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn and Ramsden v Dyson is now a "well recognised variety of estoppel as understood in equity", which affords relief "found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff". The questions which arise in this appeal concern the sufficiency of proof of detrimental reliance required to give rise to a sound claim for relief based on that category of estoppel; and the appropriate measure of equitable compensation where an order for the transfer of the property in question to the plaintiff is not made for reasons of hardship to a third party.
Further in Sidhu v Van Dyke (2014) 251 CLR 505 at 521-4; [2014] HCA 19 their Honours also made it clear that there is no relationship that establishes a presumption of reliance (citations omitted): The respondent sought to neutralise the appellant's first submission by arguing that, in this case, the Court of Appeal did no more than apply what Brooking JA described in Flinn v Flinn as a "commonsense and rebuttable presumption of fact that may arise from the natural tendency of a promise". This argument must be rejected. The observations by Brooking JA in Flinn v Flinn do not support the proposition accepted by Barrett JA that "[w]here inducement by the promise may be inferred from the claimant's conduct … the onus or burden of proof shifts to the defendant to establish that the claimant did not rely on the promise". In Newbon v City Mutual Life Assurance Society Ltd, Rich, Dixon and Evatt JJ, speaking of a case where the party setting up the estoppel asserted a failure to take action in reliance upon an assumption allegedly induced by the conduct of the defendant, said: "Where inaction is the natural consequence of the assumption, the prima facie inference may be drawn in favour of the causal connection … Any general presumptive connection between inaction and a belief in a state of facts must depend upon probabilities which arise from the common course of affairs, and accordingly must be governed by circumstances." In Gould v Vaggelas, Wilson J, with whom Gibbs and Dawson JJ agreed, speaking of an action in deceit, said: "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation." It is apparent that in the passage cited from the plurality judgment in Newbon v City Mutual Life Assurance Society Ltd, their Honours were speaking of a "presumptive connection" as the equivalent of the "fair inference" of which Wilson J spoke. In Gould v Vaggelas, Brennan J said: "An inference of inducement may be drawn when a party enters into a contract after a material representation has been made to him, but it is no more than an inference of fact and it is settled law that such an inference may be rebutted by the facts of the case." Nothing in the judgments in Gould v Vaggelas suggests that the onus of proof in relation to detrimental reliance shifts to the defendant in any circumstances. … In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that: "It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise." … Be that as it may, this aspect of the appellant's submission must be accepted. The approach suggested by Lord Denning should not be applied in Australia. The legal burden of proof borne by a plaintiff did not shift. To speak of a shifting onus of proof is both wrong in principle and contrary to authority. The respondent at all times bore the legal burden of proving that she had been induced to rely upon the appellant's promises. … The real question was as to the appropriate inference to be drawn from the whole of the evidence, including the answers elicited from the respondent in the course of cross-examination. In that regard, as was said by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Ltd, consideration of the application of the process of reasoning adumbrated by Wilson J in Gould v Vaggelas "must always attend closely to all of the evidence that is adduced that bears upon the question being examined".
Their Honours also noted (at 526-8): Her Honour's finding that the appellant's promises "played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property" warranted the conclusion that the respondent had discharged the onus she bore on the basis that to establish estoppel by encouragement it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. Counsel for the appellant disputed this proposition but did not cite any authority in support of their position. The respondent's position is amply supported by authority. … This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created. The extent to which it is unconscionable of the appellant to seek to resile from the position expressed in his assurances to the respondent may be gauged by reflecting on the likely response of the respondent if the appellant had told her in January 1998: "I am happy for you to remain at Oaks Cottage, but only for so long as it suits me and my wife to have you here; and, while you remain on the property, you must care for it as if you were the owner of the property and do unpaid work on parts of Burra Station other than the property. Until I make the property over to you, you must pay rent sufficient to content my wife. Should you choose to leave, you will leave with nothing in return for the value of your work here."
With respect to the nature of relief granted by equitable estoppel, in Sidhu v Van Dyke 251 CLR 505 at 529; [2014] HCA 19, their Honours said (citations omitted): In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced. The requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief. In The Commonwealth v Verwayen, Deane J noted that: "There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party."
In the same case Gageler J observed (at 531) (citations omitted): Paraphrasing Dixon J in Thompson v Palmer, the respondent bore the onus of establishing that she believed the appellant's representations and that, on the faith of that belief, she took a course of action or inaction which would turn out to be to her detriment were the appellant to be permitted to depart from those representations. The respondent did not need to establish that the belief to which she was induced by the appellant's representations was the sole or predominant cause of the course of action or inaction she took but, in the language of Rich, Dixon and Evatt JJ in Newbon v City Mutual Life Assurance Society Ltd, she did need to establish that the belief was a "contributing cause". To establish that the belief to which she was induced by the appellant's representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief. The need for the respondent to establish such a difference stems from what Dixon J described in Grundt v Great Boulder Pty Gold Mines Ltd as the "indispensable" condition that a party asserting an estoppel "must have so acted or abstained from acting upon the footing of the state of affairs assumed" that the party asserting the estoppel "would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption". That is to say, "the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted". There can be no real detriment if the party asserting the estoppel would have been in the same position in any event. The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: "Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?"

[6]

Intention to enter in legal binding relations

The question of whether parties intended to enter into legally binding relations is to be determined objectively, taking into account the totality of the evidence including the state of affairs between the parties. The High Court elaborated on the appropriate test in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105-6 (Gaudron, McHugh, Hayne and Callinan JJ); [2002] HCA 8 (citations omitted): "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts". Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
These principles were reiterated by the High Court unanimously in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); [2004] HCA 52 (citations omitted): References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
In determining the existence of an agreement, it is further permissible to take into account the parties' post-contractual conduct; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [23]-[27] and [85] per Heydon JA (as his Honour then was).

[7]

The rule in Browne v Dunn

The rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) provides if a party intends to assert a witness' evidence ought not to be accepted, counsel for that party must put to the witness the basis on which their evidence will be challenged. As noted by McHugh JA in Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 at 560: The rule in Browne v Dunn (1893) 6 R 67 at 76-77 prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination.
The rule in Browne v Dunn, being a rule of fairness, is of course not absolute. As Lord Herschell noted in Browne v Dunn at 71: … Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.
These views were echoed by Tobias and McColl JJA in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112]: There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. In the present case there is no such body of evidence.
Provided the Court does not palpably misuse the evidence or makes findings inconsistent with facts incontrovertibly established on the evidence, it is a matter for the Court to determine whether it accepts unchallenged evidence: see generally State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3. A failure to cross-examine will naturally influence this determination. The failure to cross-examination limits the findings I am willing to make.

[12]

Equitable estoppel

The Defendant submits that the onus is on the Plaintiff to establish the equitable estoppel by representation and the three ingredients of representation, reliance and detriment. The Defendant asserts the Plaintiff is unable to establish these three ingredients (Outline of Submissions [8]-[10]).
Firstly, the Defendant submits that the Court should not be satisfied (to the requisite degree) that Mr Novick made the alleged representations, especially when contrasted to the contemporaneous note written by him on 18 November 2015 (Outline of Submissions [11]). The Defendant suggests the Court should be particularly cautious of the alleged oral representations made by Mr Novick, particularly as they are pitched at a level of hopeless generality unsupported by extrinsic, written evidence (Outline of Final Submissions [4]-[13]). The Defendant also suggests the witnesses called by the Plaintiff have not deposed to a single instance of Mr Novick having told them that he intended to leave his estate to the Plaintiff (Outline of Final Submissions [14]-[19]). The Defendant commends the evidence of Mr Havas, the written letters of Mr Novick and the wills and power of attorney given in favour of the Defendant as evidence clearly refuting the authenticity of the Plaintiff's claims (Outline of Final Submissions [20]-[25]).
Secondly, the Defendant submits the Plaintiff's evidence does not establish reliance, as the evidence falls short of establishing the Plaintiff's conduct was done in reliance upon the alleged representations (Outline of Submissions [12]). The Defendant alleges the Plaintiff's evidence is unacceptably vague, for example contradicting with the evidence given by Mr Aarons and implausible given the fact that Mr Novick could have attended doctor's appointments without the assistance of the Plaintiff (Outline of Final Submissions [26]-[41]). The Defendant submits the Plaintiff's services to him were made simply out of companionship and hospitality in the hope that Mr Novick might make good his assurances (Outline of Final Submissions [42]-[43]).
Thirdly, the Defendant denies the Plaintiff can make a claim on the question of detriment (Outline of Submission [13]). The Defendant argues the Plaintiff's contention is again hopelessly general, without any receipt or contemporaneous document establishing detriment (Outline of Final Submissions [44]). The Defendant also rejects that the Plaintiff's contention that she was unable to take a full-time position at the Dee Why RSL due to care of Mr Novick as insufficient to prove detriment (Outline of Final Submissions [44]-[49]).

[15]

Evidence of Ms Lorena Zupicic

Ms Zupicic the Plaintiff swore four affidavits on 15 February, 28 February, 2 March and 5 April 2018.
Ms Zupicic was born in 1968. She married her husband who was then 24 years of age in 1994. They married in Australia.
She had previously been living in Croatia and for a time had lived with Mr Novick's mother in Italy. His mother lived in Trieste which was very close to where the Plaintiff's family lived.
Prior to coming to Australia the Plaintiff would speak to Mr Novick from time to time by phone and write to him.
During one of their conversations Mr Novick purported to encourage her to think about moving to Australia. She emigrated in 1994 and made contact with Mr Novick soon after her arrival.
When she arrived she believed that Mr Novick had just recently purchased the apartment in Potts Point.
The Plaintiff obtained employment at the Dee Why RSL in June 1994 where she was employed as a waitress and cashier. She has continued to work in the same role to this date. She works approximately 20 to 30 hours a week and is also a bookkeeper for her husband's business, Compact Car Repairs Mona Vale. That involves approximately 8 hours each week.
The Plaintiff said that when she first arrived in Australia she was approximately 27 years of age and Mr Novick was approximately 70 years of age. She was a family orientated person and she commenced what she describes as a very close relationship with Mr Novick.
She and her husband have two children, one born in 1994 and the other in 1998.
From time to time Mr Novick would come to their house and babysit the children and on the odd occasion the Plaintiff and her husband would either go out or perhaps have a night away somewhere. Mr Novick became very close to her two sons, Anthony and Stephen who regarded him as a grandfather figure.
The Plaintiff said that Mr Novick did not like to be alone and on many occasions he would express his gratitude to the Plaintiff for her company and that of her two young sons.
The Plaintiff alleges that since 1994 Mr Novick stayed with her family at her first home in Dee Why and later in Mona Vale during the Christmas and Easter period in a room that they had set up for him. At Easter he would arrive before Good Friday and for the Christmas break he would arrive a day or so before Christmas Eve. He would normally stay for about seven days during which time the Plaintiff would cook for him and clean his clothes.
On many occasions when he visited them Mr Novick would pass his time sitting and talking with her husband or herself or playing cards and chess with her sons.
The Plaintiff asserted that from early 1994 Mr Novick would come to their house for regular weekly and/or fortnightly weekend visits. He would stay on Friday and Saturday nights and return to Potts Point on the Sunday. On the occasions that Mr Novick was not able to visit the Plaintiff and her family they would visit him in Potts Point.
From 1995 the Plaintiff began visiting Mr Novick more regularly on a weekly basis at Potts Point travelling firstly from their house in Dee Why and later from 2006 from her home in Mona Vale.
Before each visit she would generally cook Mr Novick a Croatian meal and have it ready packed for him for his lunch or dinner. She would also buy Mr Novick fruit and other groceries and take them. At one point in about 1998 Mr Novick asked whether the Plaintiff could give him more assistance around the home by washing his clothes, cleaning and doing the shopping and other errands.
Mr Novick at first offered money to the Plaintiff but the Plaintiff did not accept any or receive any. However at one point in 1998 Mr Novick said to the Plaintiff that he wanted to repay her and her family for all the work that they had done and for looking after him in the future and instead of paying her he was going to leave her everything in his Will. The Plaintiff said she thanked Mr Novick. The Plaintiff believed that in the years between 1998 and 2015 the question of payment arose on numerous occasions. In 2015 in the course of one of these conversations Mr Novick said to the Plaintiff that he had made sure she would be repaid for all her help as his will said that she got his whole estate and that she should not worry about anything.
The Plaintiff believed from her conversations with Mr Novick that she would receive the entirety of his estate when he died. She also appreciated that that involved his apartment in Potts Point and she also believed he had approximately $40,000 in a savings account which he had told her about.
During the years when she looked after him and accompanied Mr Novick the Plaintiff asserts that she organised and paid for approximately $11,000 by way of renovation of the kitchen in May 2015, having earlier arranged for the purchase and installation of an air conditioning unit in February 2015 for $2,000. Over the years she also arranged for her husband to do home maintenance such as fixing window openings and installing security locks, fly screens and phone lines to his bedroom. The Plaintiff also asserted that from the time she arrived in Australia in 1994 she organised for her husband a qualified mechanic to fix and maintain Mr Novick's motor vehicle. She also asserted that from 2010 to 2016 she would pay the registration, insurance and the petrol for Mr Novick's car and fill the car and wash it on occasions he was at Mona Vale.
At some point around 2009 the Plaintiff asserts that Mr Novick mentioned to her that it was hard being a pensioner and that he had little money to pay for expenses apart from food and clothes. The Plaintiff asserts that in the period from 1994 to 2016 she would take Mr Novick to his doctor's appointments to see his GP and to see specialists and other doctors. On these days she would collect him from his apartment and take him to the various appointments allowing time to get back to Mona Vale. She often changed her roster at work at the Dee Why RSL so that she could manage visiting Mr Novick. She bought him clothing and other domestic items from time to time during the whole of the period from 1998 to his death.
In 1998 for example when he had a hip replacement she took him to St Vincents hospital and to rehabilitation after the surgery. During this period she visited him on a daily basis and took care of him until he had recovered. She continued to cook meals for him, do his shopping, wash his clothes and clean his house.
In 2010 Mr Novick told the Plaintiff he had a problem with his heart and that he would need to visit the hospital more regularly to which the Plaintiff indicated that she would look after him.
After 2010 he required extra visits to medical practitioners and she continued to take him to various appointments until his death.
In 2012 Mr Novick said to the Plaintiff that he had given her everything in his will because she was the one who was helping him and she was the closest member of his family. He also said that the Plaintiff had worked hard, that she had fed him, cleaned his clothes and cleaned his house and he offered to sell the apartment in Potts Point and give the Plaintiff the money from the sale so that he could move into her house at Mona Vale. This would alleviate her having to work and travel.
On occasions Mr Novick expressed his gratitude to the Plaintiff for travelling from Mona Vale. The Plaintiff during the entire period was juggling her own work in order to fit Mr Novick in, in addition to her own family commitments.
Over the years all maintenance and repairs needing to be done to the unit were carried out by the Plaintiff's husband. At no time did Mr Novick pay her husband for any of the work he did.
In August 2013 the Plaintiff and her husband travelled to Croatia for a four week holiday. She arranged for a good friend of Mr Novick's, namely Giovanna Moretti to look after Mr Novick while they were away. Unfortunately Giovanna fell ill and she in turn arranged for the Defendant to assist to look after Mr Novick. Thereafter when she returned from Croatia from time to time the Plaintiff saw the Defendant coming in and out of Mr Novick's apartment.
In July 2015 the Defendant had moved into Mr Novick's apartment, according to the Plaintiff. Mr Novick said to her that the Defendant moved in because someone had broken into her apartment and she needed somewhere to live in the short term. The Plaintiff alleges she continued to visit Mr Novick, bringing him food and supplies and cleaning his apartment and taking him to appointments or taking him out for coffee or lunch.
During a time when the Defendant went on holidays to Surfers Paradise in early 2017 the Plaintiff asserts that she continued to look after Mr Novick. Late in September 2016 Mr Novick told the Plaintiff that he and "Angela" were always arguing.
Mr Novick was hospitalised on numerous occasions prior to his death in July 2017. During his time in hospital the Plaintiff visited him there numerous times during each week and brought him newspapers, clean clothes and the like. In early 2017 the Plaintiff was unable to reach Mr Novick. She tried to establish precisely where he was and she called St Vincents Hospital. Someone on the hospital staff told her that Mr Novick could not take visitors. She went to visit Mr Novick at the hospital but was told by the Defendant that she could not come in to see Mr Novick until he had fully recovered.
She did not visit Mr Novick in hospital as a result but on 21 July called at the War Memorial Hospital in Waverley to check on him to be told that he had died on 18 July.
On her understanding and/or belief at no time did Mr Novick indicate to her that he had changed his mind in relation to his estate.
In her second affidavit (28 February) the Plaintiff asserted that between 1998 and 2016 she and Mr Novick on many occasions had conversations in similar terms in which he would thank her for the work she had done. She cannot recall the dates and times of these conversations but Mr Novick would say words to the effect that the Plaintiff had been so wonderful to him and that he knew that she had been looking after him for some time and that he wanted to repay her for all her efforts by leaving everything to her in his will. At some point she appreciated that he owned his apartment outright and he had purchased it out of superannuation moneys.
She also discovered in 2010 that he had sold a garage space which went with the apartment for $45,000 which he was keeping in a savings account.
In her third affidavit (2 March) she reiterated that the first time she had discussed the question of payment with Mr Novick was in 1998 and it was then that he said for the first time that he wanted to repay her and that he was going to leave everything to her in his Will.
In 2012 he said again that he had given everything to the Plaintiff in his will as she was the one who had helped him and she was the closest member of his family.
The Plaintiff also said that her understanding was that if she continued to assist him she would receive the whole of his estate and on the basis of that understanding and her expectation she spent countless days of her life and moneys helping and providing assistance to Mr Novick. That included the purchase of food, travelling to and from Potts Point, clothing she bought for him including shoes, costs and maintenance work done on Mr Novick's apartment. In order to be able to care for him she remained a casual employee only.
Her fourth affidavit of 5 April is largely in response to that of the Defendant.
The Plaintiff reiterated that she purchased clothes for Mr Novick on a regular basis including underwear, shoes, socks and trousers. In addition to taking Mr Novick to medical appointments she also took him to a herbalist he requested he go to in Chatswood.
The Plaintiff also asserted that she took him to the Sydney Dental Hospital in order for his dentures to be changed from time to time.
The Plaintiff recalled that also in 2011 Mr Novick told her he had given her everything in his will and that he would always pay his way and that he would not want her to go without and that is why he was giving her everything in his will.
Attached to this affidavit are numerous photographs taken over many years commencing in approximately 1994 with numerous photographs taken in the latter part of 2016.
In her evidence in chief the Plaintiff indicated that when Mr Novick said he would leave everything in his will she believed it and had no reason to doubt it (T17/25-30).
The Plaintiff indicated that she did perform work for Mr Novick for which she received no payment (T19/10-15).
Although she was offered the job as supervisor at the Dee Why RSL she did not take it because it would have involved full time employment and she had a commitment to her family plus looking after Mr Novick (T20/40-50).
The Plaintiff was cross-examined and agreed that she first met Mr Novick when she was five years old. That was 1973 (T21/30-40).
She also agreed that she did not see Mr Novick again until 1994 but they had kept in contact (T21/45-50).
She was asked questions about the expenditure of $11,000 on the kitchen. She had no records in relation to the amount (T24/5-10).
She denied that Mr Novick reimbursed her for any expenditure (T24/15-25).
The Plaintiff asserted that Mr Novick never paid her any money, he just promised to leave his apartment to her (T24/25-30).
The Plaintiff agreed that the maintenance so far as the windows and fly screens were concerned was done on two or three occasions. As to the phone line, her husband put a connection into Mr Novick's bedroom (T25/15-25).
The Plaintiff asserted that she bought shirts, shoes, jumpers, socks, underwear and pyjamas but kept no record of the expenditure (T26/1-15).
The Plaintiff agreed that Mr Novick stopped driving around 2009 to 2010 (T26/40-45).
She accepted the assertion that she continued to pay the registration, insurance and petrol on the vehicle between 2010 to 2016 must be a mistake (T28/5-15).
When asked where the Sydney Dental Hospital was, she first answered in Elizabeth Street and then Elizabeth Bay, Potts Point (T29/30-40).
The Plaintiff denied that on one occasion when she had taken Mr Novick out for a walk he had returned ill, coughing and sneezing, contrary to a version given of the same events by the Defendant (T35/15-30).
It was put to the Plaintiff that she was making her evidence up as she went along, which she denied (T35/30-45).
It was put to the Plaintiff that she knew that Mr Novick had never made a will in her favour to which the Plaintiff asserted that Mr Novick had told her that he had. It was further put to the Plaintiff what Mr Novick said to her was that he was going to leave everything to her in his will, not that he had made one, to which the Plaintiff responded that he did say that he had left a will in her favour (T36/15-35).
The Plaintiff agreed that she and her husband had a solicitor, Mr Kennedy draft a will and send it to Mr Novick. The Plaintiff asserted that it was on Mr Novick's instructions. It was put to her that that was a lie which she rejected (T36/35-50).
The handwritten letter of Mr Novick of 18 November 2015 was put to the Plaintiff and a portion was read. The portion extracted referred to Mr Novick's belief that the Plaintiff and her husband had opened his safe. The Plaintiff said that that was a lie (T38/30-50).

[16]

Evidence of Edi Zupicic

Mr Zupicic is the husband of the Plaintiff. He swore three affidavits, 28 February, 5 April and 9 April 2018. In his first statement (28 February) Mr Zupicic said that when his wife (whom he married in 1994) first arrived in Australia she would visit Mr Novick two or three times a month. Mr Novick would visit their home in Dee Why at least one weekend every month.
If Mr Novick did not visit on weekends Mr Zupicic and his wife would drive to the city and visit Mr Novick at his Potts Point unit. His wife would also telephone Mr Novick every second or third day for a conversation.
From 1995 Mr Zupicic observed his wife visiting Mr Novick more regularly, sometimes at least once a week. He continued to come to their home in Dee Why at least one weekend per month. Mr Zupicic's further observed his wife preparing food to take to Mr Novick and doing shopping such as buying shoes and clothes for him. She would often work evenings and sometimes lunch shifts at the Dee Why RSL so that she could make time to visit Mr Novick.
In about 1998 Mr Zupicic asked his wife why she was spending so much time and money on Mr Novick and less time on the family. His wife told him that Mr Novick was going to leave his apartment to her.
In 1998 his wife told him that she thought Mr Novick was becoming less mobile and he needed things done for him. From about that time he became a regular visitor to their house in Dee Why and would stay the weekend arriving midday Friday and leaving on Sunday or sometimes Monday morning. He would also spend the entire Easter and Christmas with them.
When Mr Novick had his hip replacement in 1998 Mr Zupicic's wife spent a good deal of time with him.
Mr Zupicic bought his business in Mona Vale in 2001. As a result his wife starting doing bookkeeping for him.
Between 1996 and 2012 Mr Novick would come to their home in Dee Why and later Mona Vale during the week and spend a day at their house. The Plaintiff would cook for Mr Novick and keep him company and drive him home in the afternoon before the traffic became too heavy.
From 2010 onwards the Plaintiff told Mr Zupicic that Mr Novick had ongoing health issues with his heart. He stopped driving in about 2010. Until that time Mr Zupicic would pay for the registration and insurance on Mr Novick's car from time to time.
In about 2014 he was visiting Mr Novick with his wife at Mr Novick's unit. Mr Novick complained that the doors on his kitchen cupboards were falling and asked Mr Zupicic if he could help. As a result in May 2014 Mr Zupicic dismantled the cupboard and replaced some of the items and refurbished the kitchen for a cost of approximately $11,000. He did not keep any records of his expenditure.
From time to time he effected repairs for Mr Novick. Further in 2015 Mr Zupicic outlayed the money to purchase an air conditioning unit for the apartment.
The Plaintiff told her husband to ensure that he did not receive any money from Mr Novick, as Mario was giving the apartment to her.
When Mr Zupicic told Mr Novick he was travelling to Croatia in 2013, Mr Novick asked whether he would visit his mother's grave and send photos back. He did so.
Sometime in 2015 Mr Zupicic became aware that the Defendant had moved into the unit with Mr Novick. At some later point in July 2016 he discovered she had moved out. Mr Zupicic asserts that Mr Novick when asked why the Defendant had left, told Mr Zupicic that Mr Novick and the Defendant had had an argument and she had moved out.
On occasions Mr Novick told Mr Zupicic that the Defendant was going to be his live-in carer, but that his wife was his "number 1" and that she had done so much for him over the years and he was leaving his apartment to her. He also indicated he wanted to pay for Mr Zupicic's sons' university studies. This was after Christmas 2016.
Prior to Mr Novick's death Mr Zupicic observed his wife becoming distressed and she complained to Mr Zupicic that the Defendant was not telling her anything about Mr Novick, his treatment or his needs.
Mr Zupicic discovered Mr Novick had died when on the 23 July 2017 Mr John Aarons a neighbour of Mr Novick, rang to tell the family that Mr Novick had died.
Mr Zupicic's second statement (5 April) is largely responsive to the evidence of the Defendant and the affidavit of Mr Havas. He denies that he ever observed Mario to be unclean, unhygienic or live in dirty circumstances.
He is a trained auto mechanic having completed his apprenticeship in Yugoslavia in 1980. He reiterates how he would service Mr Novick's vehicles and did not observe where another mechanic had done work on Mr Novick's vehicle.
He recounts how he, his wife, Mr Novick and the Defendant briefly discussed strata issues on 16 September 2016.
On or about late 2010 Mr Novick approached him and said words to the effect asking him to arrange a solicitor to prepare a will making the Plaintiff the trustee and giving his estate to the Plaintiff in whole. Mr Zupicic recounts how he contacted Mark Kennedy solicitor and asked him to arrange such a will.
Some months later in or about early 2011 Mr Zupicic asked Mr Novick whether he got the will from Mark Kennedy. Mr Novick replied yes I did thank you, I've kept it in my hardbox. Mr Zupicic did not ask about the will again.
Mr Zupicic's third statement (9 April) (Exhibit P1) outlines the circumstances in which the Plaintiff and her brother Elido Gobo purchased property in Croatia from Mr Novick for $2,000 Australia dollars each.
Mr Zupicic tried to pay Mr Novick $2,000 in March 1997 however Mr Novick said $1,500 would be enough as Mr Zupicic had paid for the paperwork to be done in Croatia.
On Christmas Day 2016 Mr Novick asked for $500. On 8 January 2017 Mr Zupicic and his wife paid Mr Novick $1,000 in cash and because he was short of money added another $500. On Mr Zupicic's account Mr Novick had not mentioned any moneys owing to him at any time between 1996 and 2017.
In his evidence in chief Mr Zupicic recalled that in his affidavits he had said he serviced Mr Novick's motor car and filled it with petrol (T47/10-15). He said he had discussions with Mr Novick about his financial situation, in which Mr Novick said he was a poor pensioner, did not have much money and said that a little help was appreciated (T47/30-35).
In cross-examination Mr Zupicic asserted Mr Novick sold his car space late in 2010 and that his car had been left in front of Mr Zupicic's house for him to scrap (T48/40-T49/5).
Mr Zupicic denied he was invited by the Defendant to Mr Novick's birthday party (T49/30-35).
Mr Zupicic denied he said Mr Novick had become very weak and was losing it. He denied the Defendant said to him that it was time they had a meeting to clarify Mr Novick's wishes once and for all (T50/45-T51/20). Mr Zupicic rejected the Defendant's account of the meeting between Mr Novick, the Plaintiff, the Defendant and himself concerning strata issues and the bollard in the car space (T53/5-T54/40).
Mr Zupicic accepted he knew about Catholic Care assisting the Defendant but rejected the Defendant's account of her difficulties in caring for Mr Novick (T55/5-45).
Mr Zupicic admitted if he was upset or angry he might start swearing, but denied the Defendant's account of him swearing at her (T56/10-35).
Mr Zupicic denied the Defendant ever told him anything about her guardianship of Mr Novick (T59/40-45).
Mr Zupicic admitted that it was possible he had sworn at the Defendant in a phone call on 27 May 2017, as he was upset because he was insulated from Mr Novick and he and his wife had no contact with him (T60/45-T61/5).
He asserted he did not know Mr Novick was feeling unwell as he had not seen him (T61/35-40).
Mr Zupicic accepted the conversation recorded at paragraph 137 of the Defendant's first affidavit occurred (Exhibit D6).
Mr Zupicic said Mr Novick had requested him to arrange a solicitor to prepare a will making the Plaintiff the trustee and giving his estate to the Plaintiff (T65/1-10). Mr Zupicic said Mr Novick did make a will in the Plaintiff's favour (T65/15-20). He denied that he had invented Mr Novick's request (T66/20-25). He denied his account was invented to overcome the difficulty of Mr Novick's note of 18 November 2015 (T68/35-40). Mr Zupicic said he did not know whether the 2011 will was signed by Mr Novick (T68/45-50).
Mr Zupicic was cross-examined on his account of the Croatian land deal. He denied his account of the dates of the Croatian land deal was incorrect (T72/25-30). He reiterated that on Christmas Day 2016 Mr Novick had requested $500 in relation to the Croatian land deal (T72/40-50). He denied that at that time he knew Mr Novick had taken out an equity unlock loan for about $213,000 but admitted he was now aware of it (T73/15-25).
In re-examination Mr Zupicic said he was present when the contract for sale for the Croatian land deal was signed at the Croatian consul in Sydney in 1997 (T76/10-30).

[17]

Evidence of Mr John Aarons

Mr Aarons swore one affidavit of 28 February 2018. He resided in the same block of units as did Mr Novick. He purchased a unit in the apartment block in 2007. He is not 72 years of age.
In the years 2007 to 2015 he and Mr Novick would often keep each other company and join each other for coffee or discussion in each other's apartments.
They became very close friends and Mr Aarons felt they each trusted the other deeply.
On one occasion shortly after he moved in in 2007 Mr Novick introduced Mr Aarons to the Plaintiff and her husband. Mr Novick introduced them as his only relatives in Australia.
Mr Aarons observed the Plaintiff visiting Mr Novick regularly, at least once every week and sometimes twice in a week. He observed this happening until December 2016. On some occasions the Plaintiff would come more often. She would bring food, usually fruit and also clothing and some other items.
When the Plaintiff came Mr Aarons observed her staying sometimes for four or five hours and he would observe her tidying Mr Novick's apartment and sometimes taking him for a walk and sometimes out for lunch.
On occasions Mr Aarons observed Mr Novick being collected by the Plaintiff or her husband or one of their sons.
On one occasion Mr Novick told Mr Aarons that the Plaintiff and her husband had bought a house in Mona Vale and he was happy for them and that he was going to stay with them from time to time.
On another occasion he told Mr Aarons he was going to stay with the Plaintiff for the weekend. On another occasion he said he had had a wonderful time at the Plaintiff's over the weekend and he was very fond of the Plaintiff's two boys.
Mr Aarons also recalls Mr Novick telling him that the Plaintiff and her husband had done some repairs and renovation in his kitchen and installed an air conditioner and paid for everything and that the unit will be hers someday.
On another occasion Mr Novick told Mr Aarons that he did not know what to do without the Plaintiff as she had been very good to him and he would look after her when he died. He also said the Plaintiff was his family and it was his intention to look after her and her boys in the end.
On one occasion he said that when he died the Plaintiff would be looked after and that he was giving his apartment to the Plaintiff as a thank you.
At some point during 2009 during a conversation with Mr Novick Mr Aarons remarked how lucky Mr Novick was to have the Plaintiff and others, to which Mr Novick responded yes I will repay them in my will.
At some point Mr Aarons discovered that Mr Novick was having heart issues. He asked Mr Novick if he had a will in place and whether he had taken care of his affairs, to which Mr Novick said he had a will and he had looked after the Plaintiff and the boys in the will and that he was giving them the unit and everything he had. This was in a conversation in which both swapped stories about their wills and he recalled was in about 2010.
During a similar conversation sometime in 2011 and again in 2014 Mr Aarons asked Mr Novick again had he made a will to which Mr Novick responded yes he had and that he had given everything to the Plaintiff and her family.
In 2014 Mr Novick called out from his apartment. Mr Aarons went in. Mr Novick indicated that he was not well and that he had to go to hospital. Mr Aarons got his car and drove Mr Novick to St Vincents Hospital. During the trip there he again asked Mr Novick had he organised a will to which Mr Novick said for Mr Aarons not to worry, that he had done that.
At some point Mr Novick told Mr Aarons that he wanted to help the Plaintiff and the boys by paying for their studies.
On another occasion Mr Novick told Mr Aarons that the Plaintiff and her family were getting his estate.
Mr Aarons observed the Defendant move into Mr Novick's apartment he thought in late 2015. However some time later he noticed the Defendant move out as a removalist truck arrived and took her belongings. Mr Novick told Mr Aarons that the Defendant had moved out and he thought she had moved to an apartment in Edgecliff.
In 2016 Mr Aarons had a conversation with Mr Novick. Mr Aarons asked where the Defendant was and Mr Novick told him she was out seeing a doctor about her feet and other matters.
In February/March 2017 Mr Aarons observed Mr Novick become quite unwell. He asked the Defendant about Mr Novick and she replied that Mr Novick did not want to see anybody.
Mr Aarons said he noticed Mr Novick's health deteriorate tremendously over April and May 2017. The Defendant told Mr Aarons in early July that Mr Novick was not well enough to see anybody. Mr Aarons later discovered that Mr Novick had been taken from St Vincents to War Memorial Hospital. Mr Aarons later discovered Mr Novick had died some weeks previously.
In further examination in chief Mr Aarons indicated that he had seen the Plaintiff and her husband pick up Mr Novick and take him away sometimes for lunch and sometimes overnight (T78/30-35).
Mr Aarons said in cross-examination he was a close friend of Mr Novick and all of a sudden the Defendant indicated that he could not see him. The Defendant told Mr Aarons a couple of times that Mr Novick did not want to see him and he no longer wanted the newspaper which Mr Aarons used to deliver to him.
On one occasion he was at St Vincents getting his own medical treatment and he asked whether Mr Novick was there, only to be told Mr Novick had gone to War Memorial Hospital. Mr Aarons went to see him there the next day, Mr Novick said that he had not been to see him, to which Mr Aarons said to Mr Novick that he had been told he did not want to see anybody. Mr Novick said that he was very pleased to see Mr Aarons and asked him to stay, which he did and had conversation for approximately two hours (T81/20-45).
Mr Aarons said that the Defendant was a very difficult woman and as Mr Novick's condition deteriorated the Defendant took a lot of control of what Mr Novick said and did (T82/5-20).
Mr Aarons denied that he ever swore or described the Defendant in an unsavoury way but he did refer to another woman in the apartment block who was a "separate story" (T82/15-30).

[18]

Evidence of Giovanna Moretti

Ms Moretti met Mr Novick in 1983. She was selling water purifiers when she met him at his home in Potts Point. She sold him a water purifier. They ended up becoming friends for some 35 years.
Sometime in early 1996 she was introduced to the Plaintiff by Mr Novick. He introduced the Plaintiff as his closest relative in Australia and said that she had been looking after him since she came to Australia in 1994.
Ms Moretti observed the Plaintiff coming to Mr Novick's apartment consistently from early 1998. She would bring food and other supplies each time she arrived. She would also perform household duties such as cleaning and washing for Mr Novick. Ms Moretti observed the Plaintiff doing these things right up until Mr Novick's death in 2017.
The Plaintiff would also take Mr Novick to medical appointments. On one occasion Mr Novick said to Ms Moretti that he was very lucky to have the Plaintiff and that he could not do without her.
On many occasions between 1998 and 2015 Ms Moretti would accompany the Plaintiff and Mr Novick at Mr Novick's unit. They would often go out together. The Plaintiff would drive everyone out for a coffee or lunch. Ms Moretti would also join Mr Novick at the Plaintiff's home in Dee Why and later in Mona Vale.
During 2015 Ms Moretti asked Mr Novick had he made a will as she wanted to make sure that he had a will in place. He told Ms Moretti that he had made a will with his solicitor and that everything would be left to the Plaintiff.
Ms Moretti has known the Defendant for nearly 30 years. She would meet her occasionally around Christmas or at the home of mutual friends.
In about August 2013 the Plaintiff and her husband travelled to Croatia and an arrangement was made whereby Ms Moretti was going to take care of Mr Novick, but she fell ill. Ms Moretti asked the Defendant would she help in looking after Mr Novick.
However in about August 2015 the Defendant moved into Mr Novick's apartment. She had moved some of her belongings in to Ms Moretti's observation. Mr Novick told Ms Moretti that the Defendant's house had been burgled, that she was too scared to go back to her house and she had asked whether she could move in until she found something suitable.
After the Defendant moved in Ms Moretti found it difficult to have a private conversation with Mr Novick. The Defendant moved the furniture around the unit. She would always make sure that she was sitting nearby when Ms Moretti was speaking with Mr Novick.
During 2016 however she observed that the Defendant moved out of the apartment. Mr Novick told Ms Moretti that she had moved out and leased an apartment in Edgecliff.
Later in 2016 when the Defendant returned to the apartment she was often in bed. Mr Novick explained that she was not well, that she had to rest. In late 2016 Mr Novick told Ms Moretti that he had made arrangements for the Plaintiff to get everything in his estate when he died as she had helped him so much. He needed to make arrangements for this to happen and he had a will prepared and signed which gave everything to the Plaintiff.
In early 2017 the Defendant told Ms Moretti that Mr Novick was not well and that it was best if she did not come around to visit. Mr Novick told Ms Moretti in early 2017 that the Plaintiff was still going to help him go to the hospital and other appointments.
In early 2017 Mr Novick told her that he and the Defendant were arguing a good deal.
On or about 3 July 2017 the Defendant telephoned Ms Moretti and told her not to make any further contact with Mr Novick and that she was not to visit him in hospital. On or about 21 July 2017 the Plaintiff telephoned Ms Moretti to tell her that Mr Novick had passed away.
In cross-examination Ms Moretti said that she had a lot in common with Mr Novick. They liked walking and art (T91/35-50).
Ms Moretti denied that anyone else had asked her to ask Mr Novick whether he had a will. She did so because he was a friend, she wanted to make sure he was being cared for and that people had not used him (T92/25-45).
From time to time she did some shopping for Mr Novick (T93/5-10).
Ms Moretti did notice that the Defendant was not there. The reason she did was that from time to time she would stay overnight at the apartment and she noticed the Defendant was not there (T93/20-35).
It was put to Ms Moretti that Mr Novick had never said anything about arguing with the Defendant. She rejected that proposition (T94/1-10).
A version of a conversation which the cross-examiner asserted had taken place between Ms Moretti and the Defendant was put. Ms Moretti denied various aspects of the conversation (T94/20-50).
Ms Moretti agreed that she did ask Mr Novick about a will because she was concerned that he had his legal affairs in order (T95/5-15).

[19]

Evidence of Christiane Whitham-Taudien

Ms Taudien knew Mr Novick because he had been a close friend of her parents. Her mother had worked with Mr Novick's wife in the 1940 and 1950s. After their divorce Mr Novick remained friends with Ms Taudien's family.
When she was a child Mr Novick would come to her home and take her and her brother out and also take her mother out shopping to the markets.
In 1994 she noticed Mr Novick was having problems walking. He told her however he still went for long walks every day to remain active.
Over the next few years Ms Taudien became quite busy with her own family and did not see as much of Mr Novick.
However when she met Mr Novick he would sometimes speak about the Plaintiff. He said that she had moved to Australia and that he was pleased to have someone from his family living in Australia. On another occasion he described himself as being "housebound" and lonely. He said that the Plaintiff and her family had been "wonderful" to him and he was going to leave his unit in Potts Point to the Plaintiff when he died. Ms Taudien said that during the period 1994 to 2006 Mr Novick said that to her on numerous occasions.
In 2006 she had a telephone call with Mr Novick and he mentioned that the Plaintiff and her husband had moved to live in Mona Vale. He also told Ms Taudien that the Plaintiff's husband looked after his car. Soon after that conversation but during the one in which she spoke to Mr Novick about the Plaintiff and her husband, Mr Novick indicated again that he was going to leave his unit to the Plaintiff as she took good care of him.
Soon after 2006 she finally met the Plaintiff and her two sons. They then became friends and from time to time the Plaintiff would update Ms Taudien about Mr Novick's health.
From 2006 onwards on numerous occasions the Plaintiff and her husband would bring Mr Novick to Ms Taudien's home to visit her family.
On many occasions in the period 2006 to 2015 in conversations concerning the Plaintiff Mr Novick would say that the Plaintiff had taken care of him, that she visited him and brought him food and that she was a wonderful person. Further that he was very grateful to have the Plaintiff and her family in his life.
In late 2015 in a conversation with Mr Novick he informed Ms Taudien that the Defendant had moved into his house. He told Ms Taudien that she had nowhere to go and that he was helping her out. A little later he said to her that he was not sure that he should have done it, as the Defendant had taken over his whole unit.
However he continued to tell Ms Taudien that the Plaintiff came to his unit and did various things for him. During many private conversations with Ms Taudien he said that the Plaintiff was a good person, that he loved her family and that he was lucky to have them and he intended to leave the Plaintiff his unit when he died.
Ms Taudien only found out about Mr Novick's death on 25 July when she received a phone call from the Plaintiff's husband.
In cross-examination she indicated that she had spoken to Mr Novick on many occasions but also spoke to him from her mother's house (T98/10-30).
It was put to the witness that Mr Novick would not have used the word "housebound". The witness agreed that that was her interpretation of words used by him (T100/5-15).

[21]

Evidence of Mr Eidan Havas

Mr Havas swore one affidavit of 21 March 2018.
He is a solicitor of the Supreme Court of New South Wales and a principal in the firm of Havas & Dib. Mr Novick became his client in 2014. He prepared a will and an enduring power of attorney on 14 and 24 August respectively in 2014. He also prepared an appointment of enduring guardian again on 24 August 2014.
Mr Havas received a handwritten document dated 18 November 2015 from Mr Novick shortly after November 2015. He recognised the writing as that of Mr Novick. Attached to the letter was a medical certificate dated 18 November 2015 from Dr Trachtenberg.
He did not believe he had ever met the Plaintiff in the proceedings.
Mr Havas accepted that Mr Novick had become his client in 2014, as she was introduced to him by the Defendant (T145/25-30).
Mr Havas had become aware of Ms Paino in relation to some proceedings in 2008. He was aware that there were some proceedings in the Court of Appeal which were settled (T145/35-45).
The Defendant had asked Mr Havas to help her in relation to a costs assessment. That would be somewhere around 2012 or 2013. Mr Havas assisted the Defendant to negotiate a settlement in relation to outstanding fees owed to lawyers. The bill was approximately $400,000 and Mr Havas negotiated a settlement at around $300,000 (T146/10-30).
Mr Havas clarified that the costs issue that he was concerned about was the litigation involving a Mr Tancredi and a property in McLachlan Avenue, Rushcutters Bay (T147/25-45).
Mr Havas' firm is also acting for the Defendant in relation to a purchase of an apartment off the plan in Parramatta (T148/1-10).
Mr Novick came to the offices of Mr Havas with some previous will but he wanted him to draft an enduring guardian and a power of attorney. Mr Havas advised Mr Novick to have an executor who is not the same person as the beneficiary (T149/5-15).
Mr Havas said that Mr Novick attended with two previous wills and a 5 page letter (T150/35-45).
Mr Havas recalled Mr Novick taking out a loan with a credit limit of $213,950 with the Commonwealth Bank (T152/35-50).
Mr Havas asked about Mr Novick's age and also provided a written advice by way of independent legal advice (T153/10-30).
Mr Havas gave written advice that he did not think Mr Novick should take out the loan and he thought it was imprudent based on the interest rate. In addition the whole deal was imprudent by reason of the man's age and the fact that he was previously mortgage free (T154/15-45).

[22]

Evidence of Ms Angela La Camera Paino

The Defendant has sworn three affidavits in these proceedings. One on 23 March, another on 6 April and the third on 9 April 2018.
In her affidavit of 23 March 2018 she exhibits a number of documents. She was born on 22 April 1954 and is a "retired pensioner".
She emigrated from Italy in 1971 with her parents.
She became an Australian citizen in May 2008 and at the time she met Mr Novick she was living at 1/84-90 McLachlan Avenue, Rushcutters Bay.
She first met Mr Novick in 2009 at Christmas. She was telephoned by her friend Ms Giovanna Moretti who was running late for Christmas lunch. As a result the Defendant invited Ms Moretti to bring Mr Novick with her for Christmas lunch.
When he arrived Mr Novick was sweating profusely. The Defendant provided him a towel. He explained that he was sweating because of his medical condition.
Mr Novick a few days after Christmas 2009 visited the Defendant and brought her a bunch of roses.
In October 2010 the Defendant went overseas and asked Ms Moretti to stay at her home so that she could keep Mr Novick company.
When the Defendant returned from overseas she observed that Mr Novick had put on weight. She became concerned for his wellbeing. She also observed although politely that he was lacking in personal hygiene and home cleanliness.
The Defendant asserts that his flat was dirty and required cleaning, the cupboards were filled with broken and old dishes and a number of old takeaway containers were in the kitchen and were smelling.
The Defendant then brought gloves, sponges and cleaning products to clean his apartment.
The Defendant asserts that whenever she visited Mr Novick he was always on his own. He raised this with her and he told her all his good friends had passed away.
The Defendant would take Mr Novick out for walks. On a few occasions between the years 2010 and 2013 they walked past NV Motors in McLachlan Avenue, Rushcutters Bay. Mr Novic informed the Defendant that Nick Vetta the proprietor of NV Motors had looked after his VW Beetle for 40 years until he stopped driving. The Defendant assisted Mr Novick she asserts in helping him arrange Skype on his computer so that he could speak with his cousin in Trieste.
On occasions when he was admitted to hospital she kept him company. She said she was very concerned about her friendship with Mr Novick and ensured that she treated him with the utmost respect and never patronised him. She said "I was concerned to make him feel alive". The Defendant asserts that over time she began to regard Mr Novick as if he were her father.
After he was hospitalised in 2013 the Defendant stayed with him because he had nightmares every night. On the admission to St Vincents Hospital in 2013 the Defendant went to the hospital to discover Mr Novick was in a "terrible state". During this time the Defendant asserts Mr Novick asked her not to abandon him and told her that he only had her and no family.
The Defendant asserts that in some conversation at St Vincents Hospital the doctors said they were happy for Mr Novick to be discharged into her care. She then did special shopping and cooked special meals to look after Mr Novick. While he was in hospital she asserts that she took him home-cooked meals and spoon fed him, shaved him, washed him and changed him into fresh pyjamas.
When he returned home she continued to feed him, bathing and shaving him daily. She changed his clothing and applied special creams to his broken skin.
On his 86th birthday the Defendant thought it would be nice to invite the Plaintiff and her family. The Defendant asserts that to that point she had not met them. When she discussed the matter with Mr Novick he said that the Plaintiff was only his second cousin, she was not family at all and that he did not trust the Plaintiff and her husband. He also told the Defendant that he thought the Plaintiff and her husband would cause trouble.
The Defendant said that she gave Mr Novick dietary advice and she advised him on how to clean up his flat. She devised a care plan for him and made contact with Catholic Care Services.
By mid 2013 her observation was that Mr Novick "looked better and had reduced in weight". The Defendant asserts that at the end of August 2013 Mr Novick convinced her to go to Centrelink so that she could be made his carer in a formal sense.
In February 2014 Mr Novick underwent surgery for two hernias. The Defendant moved into his unit to look after him.
On 14 August 2014 Mr Novick asked the Defendant to become his legal guardian and they attended at the offices of Mr Havas.
The Defendant asserts she was attacked in her flat in December 2014. She asserts she told Mr Novick that and also told him that she had rented her flat until October 2015.
From 2013 onwards she kept visiting Mr Novick to take care of him. As he had become very deaf she organised hearing aids for him. She also ensured that his dentures were kept clean which she described as one of her "less-relished chores". She took him to the Sydney Dental Hospital on numerous occasions.
On 22 October 2015 the Defendant underwent surgery on both of her feet at the Sydney Day Surgery. Mr Novick having pleaded with her, she finally moved into Mr Novick's unit on 19 October 2015. Mr Novick insisted that she sleep on the sofa bed.
On 30 December 2015 she was telephoned by Mr Novick who told her he was in St Vincents Hospital. He asserted he had packed a bag and taken himself there on his own.
Mr Novick was always thanking the Defendant for introducing him to her friends.
In February 2016 the Defendant went to Surfers Paradise to stay with friends. When she returned she noticed Mr Novick was not well. Mr Novick had indicated he had had an argument with Ms Moretti who had suggested that he go and stay with the Plaintiff and her husband.
On 17 September 2016 a meeting was called between the Mr Novick, the Plaintiff and her husband, Giovanna and the Defendant to discuss respective persons' responsibilities. The Defendant asserted that she made some notes in the "aftermath of that meeting". This is Tab 9 to her affidavit.
The Defendant asserted that for some time prior to Mr Novick's 86th birthday he had become upset with the Plaintiff and her husband because for their "disrespectful conduct" towards the Defendant and Mr Novick and indeed her friends.
The Defendant asserted that the Plaintiff's husband would ring the Defendant late at night.
The Plaintiff's husband was insistent that Mr Novick could not stay in the flat alone much longer and that some meeting would have to take place to discuss his condition. The Defendant insisted that she told the Plaintiff's husband that Mr Novick wanted to stay in his home and that she had promised that she would do everything in her power to honour that promise.
A meeting took place in which the Defendant asserts that Mr Novick said to the Plaintiff's husband that he had told the Plaintiff's husband many times that they are not family and that the Plaintiff was only a distant relative and hardly ever bothered to visit until she realised that the Defendant was looking after him. Further conversations took place and the discussions became heated.
At one point the Defendant asserted that the Plaintiff said that the people coming from Catholic Care were a waste of money and that she could come and clean once a week for nothing.
On one occasion in April 2017 when the Plaintiff took Mr Novick for a walk he returned quite unwell. He was pale and shivering. The Defendant asserts on many occasions she tried to explain to the Plaintiff the importance of Mr Novick wearing a light jacket.
In April 2017 Mr Novick's condition deteriorated and he was admitted to St Vincents Hospital.
In May he was in War Memorial Hospital and the Defendant visited him there.
On 14 May 2017 another heated telephone call occurred between the Plaintiff's husband and the Defendant.
On 27 May the Defendant said when on the way to buy some lottery tickets that the Plaintiff's husband called. Mr Novick told the Defendant he did not want the Plaintiff's husband to call around.
At one point during a telephone call the Plaintiff's husband indicated he wanted to come round to Mr Novick's apartment in the presence of others. The Defendant put the call on loudspeaker. The Defendant recorded the telephone call on the video function of her mobile telephone.
After the exchange Mr Novick had a smile on his face and appeared to be satisfied that he had given the Plaintiff's husband a piece of his mind.
Around 26 June 2017 the Defendant observed a doctor have a private discussion with Mr Novick. A discussion then took place to where Mr Novick should be admitted.
After further admission Mr Novick died on 18 July 2017.
The balance of the Defendant's affidavit was to respond to numerous paragraphs from affidavits of witnesses.
At the conclusion of her affidavit she indicated that on 10 November 2016 she entered a contract for the purchase of the unit off the plan. She indicated that she is a person of limited means and if she is unable to complete the contract dire financial consequences will follow.
The Defendant's affidavit of 6 April again is very largely responsive to assertions made by other deponents. In broad terms she deals with her relationship with Ms Moretti and how over time it deteriorated for a number of reasons.
Again her affidavit of 9 April deals with her recording the conversation referred to in paragraph 135 of her principal affidavit. She recalled placing a caveat on the property in McLachlan Avenue, Rushcutters Bay (T116/35-45).
She came to use the surname Paino because she changed her name to the surname of a person with whom she had a de facto relationship (T117/1-10).
She agreed that she entered the contract for the purchase of the property off the plan in 2016 and that she paid a deposit of $58,000 (T188/5-25).
Without resolving this court case she is unlikely to have the funds to complete the purchase. All of the moneys obtained from previous litigation and the Paino matter have gone on legal fees and fees for the Court (T119/15-50).
The Defendant asserted that she met some people who professed to be her friends. She gave them a cheque for something around $1 million and they stole the money from her and fled the country. She had to instruct lawyers to obtain the unit in Rushcutters Bay (T120/10-40).
Over the years all the money that has come into her hands for one reason or another has simply gone (T121/15-20).
She did not go to the police about the $1.3 million cheque which was stolen. She was frightened (T121/35-50).
The Defendant agreed that she did not produce any bank statements as she does not keep them (T123/5-25).
The Defendant said that she had made no applications for any finance in relation to the purchase of the Parramatta property (T124/5-15).
The Defendant said that she borrowed the deposit from a friend (T124/35-50).
She however paid the stamp duty out of her own account (T125/15-20).
The Defendant asserted however that she had a term deposit of some $230,000 (T128/1-10).
The money that she has in the term deposit was part of her savings and also money which Mr Novick gave her as a gift (T128/10-15).
The Defendant asserted that she had forgotten about the term deposit when she received the Notice to Produce (T129/1-10).
The Defendant recalls lodging a caveat against the McLachlan Avenue property (T131/10-30).
She commenced litigation against Mr Tancredi for the McLachlan Avenue unit (T132/1-20).
She sold the unit for approximately $740,000 and received the proceeds on 18 August 2016. She entered the contract for the purchase of the Parramatta unit on 10 November 2016 (T132/25-50).
The proceeds however were used to make certain payments (T133/5-15).
The McLachlan Avenue unit was mortgaged to the ANZ bank. It had to be paid off (T134/1-15).
She did not recall that she was awarded approximately $2 million from Justice Barrett. She was very hurt and it was a very difficult time for her (T135/30-40).
She knew in 2014 what a power of attorney was and she recalled Mr Novick making her an attorney pursuant to a power of attorney in August 2014 (T139/5-15).
Mr Havas acted for her in 2014 and also acted for her on the sale of the McLachlan Avenue unit (T139/20-40).
The Defendant denied she ever intermingled any of her own funds with those of Mr Novick (T141/5-25).
She agreed that on 25 May 2017 Mr Novick executed a new will making her sole executor. The will was prepared by her present solicitor (T143/5-10).
She and Mr Novick did go to Pyrmont a few times (T162/40-50).
The Defendant denied that Mr Novick was frugal. She denied his unit was run down but said it was very cluttered and dirty. She never saw him doing any renovations. She agreed some renovations were done and that she and Mr Novick had purchased new furniture which was more appropriate, including a sofa bed as well as new clothes (T163/10-40).
The Defendant agreed that at the date of probate Mr Novick had $500 in his bank account and his household contents were valued at $2,000 (T165/5-25).
The Defendant asserted that Mr Novick had given her $105,000 (T165/25-40).
The Defendant asserted that Mr Novick took her to the bank and said that he wanted to make a gift to her for all that she had done for him ( T166/1-15).
She had private health insurance and the Defendant agreed that she had had some surgery on her feet on a day stay basis. The anaesthetic was $1,600 and the surgeon was $5,600 and the Darlinghurst Day Surgery was $1,173 (T167/1-50).
The Defendant asserted that what actually happened was that Mr Novick paid for these expenses and he asked her to return the money to him in cash (T170/1-30).
The Defendant said that Mr Novick explained that he did not want to make a withdrawal of that money from his account and it would show that it was a payment he had made and he wanted to have cash in the house (T172/15-30).
She asserts she took the $8,000 approximately from her own savings (T170/35-50). The Defendant thought that Mr Novick had given her the $105,000 possibly in the August of 2015 (T171/35-50).
The Defendant asserts that she saw Mr Novick carry large amounts of cash around all the time (T174/15-45)
The Defendant asserted that Mr Novick gambled (T174/45-50).
The Defendant asserted that Mr Novick told her he wanted to borrow the money to live the last few years of his life as he was accustomed to when he was earning lots of money. He was always very generous taking everybody out and paying for outings (T175/5-15).
The Defendant denied she was using his equity loan account as her own personal ATM (T176/25-40).
The Defendant asserted that he was working at Johnson and Johnson in the boiler room but he was working night shifts and never took holidays and was getting "amazing wages". The withdrawals of thousands of dollars were for his gambling habits according to the Defendant of which she made no mention in her affidavit (T177/10-350).
The Defendant was taken to numerous withdrawals in the bank statements. She agreed that in May 2017 Mr Novick was quite unwell and not particularly mobile (T180/20-25).
On 17 July 2017 there were two withdrawals. One of $10,000 and one of $2,000 which the Defendant agreed would most likely be her. She agreed that she was withdrawing the cash. The Defendant then asserted that Mr Novick had been telling her that he needed to get all the money out of the bank (T182/35-50).
The Defendant agreed by reason of the fact that Mr Novick was in hospital on 27 April 2017 that a number of withdrawals on that day would be her (T184/1-15).
The Defendant denied that she encouraged Mr Novick to take out the Equity Loan (T1185/1-10).
She never saw the advice given by Mr Havas to Mr Novick about the imprudence of the loan (T185/40-50). She was not aware of the advice either.
The Defendant agreed that there was nothing in her affidavit about Mr Novick giving her the money (T186/40-50).
It was put to the Defendant that she invented the story about the gifts, which she denied (T187/1-20).
The Defendant denied that in the course of her relationship with Mr Novick he told her about the promises he had made to the Plaintiff. She also denied that Mr Novick told her that he had promised to leave his estate to the Plaintiff (T188/20-35).
Mr Novick never discussed his 18 November 2015 letter with the Defendant. The Defendant denied that Mr Novick told her that the reason he drafted the letter was because he had promised all of his estate to the Plaintiff (T189/1-15).
She denied that she had any animosity towards the Plaintiff (T189/25-30).
She denied that she had ever seen the Plaintiff clean Mr Novick's unit, wash his clothes or do any errands for him (T189/35-45).
The Defendant denied that the Plaintiff regularly picked up or visited Mr Novick, or that Mr Novick stayed with the Plaintiff and her family over Christmas and/or Easter (T190/1-30).
The Defendant agreed that in January or February 2016 she moved out of Mr Novick's apartment and rented a flat in Edgecliff (T191/5-20).
The Defendant denied that during her absence while staying at Edgecliff the Plaintiff attended upon Mr Novick (T191/30-50).
The Defendant agreed that when she went to ATMs to withdraw money she would have had possession of Mr Novick's account card and PIN number (T193/30-50).
The Defendant denied she ever had a partnership business with Mr Tancredi nor was she ever romantically involved with him (T194/25-45).
She does not remember Coopers Law firm in Double Bay (T195/5-15).
Apart from the one note kept of the conversation at Tab 9, she kept no other notes of conversations she had had, the details of which are set out in her affidavit (T202/35-50).
The Defendant denied that at any point Mr Novick made statements that he adored the Zupicic family and the Plaintiff by reason of how much she had done for him (T204/30-45).
She does not need notes to recall some of the detail of the conversation because she felt strongly about the history and strongly in her feelings towards Mr Novick and protecting him so the conversations just stuck in her mind (T207/5-15).
The Defendant accepted that she occasionally attended the Star City Casino (T214/35-50).
The Defendant agreed that she would gamble but only when with Mr Novick (T215/10-20).
She also agreed that on occasions she went on her own but not for the purpose of gambling (T215/10-30).
When asked further about the $10,000 withdrawal on 17 July the Defendant repeated that Mr Novick continued to tell her to take all the money out of the bank account (T219/15-35).
The Defendant asserted that Mr Novick suggested she take all the money out of the account for both of their benefit. The Defendant agreed though that when Mr Novick was dying the large amounts of cash were for the benefit of both she and Mr Novick (T220/1-30).
The Defendant suggested that the $10,000 was to be paid to a nursing home as a deposit. The money was paid to the Summit Nursing Home. The Defendant remembered the first name (T221/10-30).
The Defendant did not have a recollection of what she did with the money and has no paperwork (T222/5-45).
The Defendant denied that she led Mr Novick to believe that he could have a romantic relationship with her (T224/10-25).
The Defendant was taken to certain of the cards, including an inscription written by Mr Novick in the following terms: You have been the most beautiful thing whichever came into my life, my love for you is eternal and growing stronger and stronger. A warm hug, Mario
The Defendant denied that Mr Novick was in love with her (T226/20-40).
The Defendant denied that she took some of the photographs attached to her affidavit for the purposes of a court case (T227/5-20).
The figure of $105,000 was not something the Defendant knew about. It was just Mr Novick who nominated the amount (T229/15-40).
In re-examination the Defendant explained that Mr Novick handed her a note dated 30 July 2015 in the context of a discussion about the moneys he wanted to give her (T234/1-20).
Two further documents were shown to the Defendant headed "International Money Transfer" (both for $50,000). The Defendant explained that they were the two transfers that had been referred to and in respect of the note that she had also identified (T235/1-10).
A further document the Defendant identified is a note that Mr Novick asked her to write on 18 July 2017 (T237/1-15)
The Defendant explained that the particular note was taken at his bedside and dictated by Mr Novick (T239/1-20). The document is undated but should bear the date 18 July 2017 (T239/40-45). The Defendant asserted Mr Novick said he wanted the note made in the presence of doctors and a social worker (T238/30-35).

[23]

Mr Novick

Before dealing with the various witnesses who gave evidence before me I propose to deal with Mr Novick, the deceased, as he is at the centre of the litigation.
Mr Novick was born in November 1927 in Italy and moved to Australia in 1947 where he worked in a semi-skilled capacity in South Australia at a power station and turbine station. He moved to Sydney to work in a Pyrmont power station and spent five years in Tasmania in an aluminium plant. He then moved back to Sydney working for a British motor company for 2 years and then worked at Johnson & Johnson as a mechanic for 27 years before retiring (Mr Vouroudis' file note, Exhibit P3, 57-61).
He appears to have lived for most of his life in an abstemious and simple manner in a one bedroom apartment in Potts Point. He purchased the apartment with his superannuation moneys when he retired and lived on a pension. Until he met the Defendant his life consisted of regular interactions with his family and friends. He developed leukaemia, cardiac problems and was observed to have "cognitive impairment" (Exhibit ALCP1 Tab 3 'My Support Plan' with Australian Government Department of Health).
No question of capacity or duress is at issue in this case. Whether Mr Novick had capacity at the relevant times to make the various wills (in 2014 and 2017), especially in the light of his health issues and his "cognitive impairment" may or may not be a matter for another day.
In 2011, it is clear the Plaintiff and her husband had a will prepared for Mr Novick leaving his estate to the Plaintiff (Exhibit P4). There is no signed copy of this will available. There is no evidence however Mr Novick ever complained at the time to the Plaintiff or others about the 2011 will that was prepared (other than in the 18 November 2015 letter to which I will return). Indeed on the evidence of the Plaintiff's husband which I accept as truthful Mr Novick asked for it to be prepared (T65/1-10).
Although the Defendant asserts it was in 2009 or 2010 I am satisfied on the evidence of Ms Moretti and the Plaintiff which I accept that Mr Novick met the Defendant late in his life when he was 85 or 86 (in about 2013) and after about two years the Defendant moved into his apartment in approximately August 2015 (or October 2015 on the Defendant's evidence). He gave cards to the Defendant displaying affection of a romantic kind. In my view, with the undoubted encouragement of the Defendant he was infatuated with her. The Defendant herself said she "had a very close relationship" with Mr Novick (T203/25-30).
In June 2014 and August 2014, Mr Novick made two wills in the Defendant's favour. These wills were almost identical in terms, although were drafted by different solicitors. There is no explanation of why the two wills were made so close together. Mr Havas the solicitor who prepared the August 2014 will was the Defendant's solicitor. Although it is not the subject of any evidence I infer Mr Rhodes (who prepared the June 2014 will) was also the Defendant's solicitor. There is no credible evidence that independently of the Defendant's initiatives Mr Novick had ever retained a solicitor.
Notwithstanding that he made two wills in 2014 leaving his entire estate to the Defendant he never told the Plaintiff, her family or his friends about that. Indeed I am satisfied he told Mr Zupicic that although the Defendant was his carer he had left everything to the Plaintiff and he wanted pay for the Plaintiff's sons' university fees. This was in 2016. In 2015 I am satisfied he told Ms Moretti he had made a will leaving his estate to the Plaintiff and I am also satisfied he told Mr Aarons in 2014 that he had left everything to the Plaintiff. Clearly Mr Novick was or was being encouraged to be secretive and obviously on one view knew he had done the exact opposite of what he told his family and friends.
In July 2015 Mr Novick entered into a reverse mortgage for $213,950 with the Commonwealth Bank and shortly thereafter apparently gave the Defendant $105,000. These decisions contrast in general to his previously abstemious life.
A good deal of expenditure is recorded in Mr Novick's bank records. I will return to this.
In 18 November 2015, Mr Novick sent a letter to the Defendant's lawyer Mr Havas outlining his supposed wishes and dissatisfactions.
The Defendant attached this letter to her first affidavit, although she provided no details of how she came to have the letter in her possession.
What is important however about this letter is that it is clear from its terms Mr Novick was fearful that his family (described as such in the covering letter) would cause problems for the Defendant and "contest all the documents". That theme is repeated in his concluding remarks. Mr Novick stated he was fearful that some "suffering" would occur to the Defendant at the hands of his family and they might contest his will.
In my view the very fact that he was concerned corroborates to some extent that he was well aware of the promises he had made in earlier years to the Plaintiff. He never asked Mr Havas for any advice about the matter and simply wanted apparently as it were a record of his thoughts at the time. There is no evidence he kept a diary and this would appear to be the first and only time he ever created such a document. The question is why he would be prompted at the age of 88 to record his thoughts, except to attempt to assist the Defendant in the event of litigation.
In the 18 November 2015 letter Mr Novick does not refer to any promises made to the Plaintiff that he would leave his estate to her. However, he makes in my view a number of serious and erroneous assertions of fact about the Plaintiff and her husband.
To begin Mr Novick somewhat absurdly criticises the Plaintiff for living "rent free" at the age of 5 with his family.
Mr Novick complains in his letter of how upset he was when the Plaintiff sent him a will that would have left his estate to the Plaintiff. There is no doubt that Mr Novick at some point in 2011 received this will from Mr Kennedy, a solicitor. The letter from Mr Kennedy dated 1 June 2011 refers to "instructions". As I have already stated the Plaintiff's husband gave evidence that Mr Novick asked for it to be done and I accept his evidence on that as truthful (T65/1-10) (Exhibit P4). The Plaintiff also asserted Mr Novick requested the will be prepared and I accept her evidence as well as truthful (T36/35-50). It clearly on its face was not a letter sent out totally out of the blue, and Mr Novick in his 18 November 2015 letter does not expressly suggest that it did arrive unannounced. Indeed Mr Zupicic alleges in his second affidavit of 5 April at paragraph 17 that a conversation took place between himself and Mr Novick in which Mr Zupicic asked whether Mr Novick had received the will from Mr Kennedy. Mr Novick said he had and that he had placed it in his "hardbox". Mr Zupicic was not cross-examined on the account to suggest it had not happened. The alleged failure to call Mr Kennedy does not detract from my findings.
However, Mr Novick alleges in his letter that he was upset at having received the 2011 will and tore it up. There is no evidence that Mr Novick ever expressed his unhappiness at being sent the will until at the earliest 18 November 2015, and then only privately. This and other matters of discontent outlined in Mr Novick's letter I am satisfied are more likely than not matters initiated and/or provoked by the Defendant (a matter to which I will also return).
Mr Novick's reference in the letter to his safe being rifled through for title deeds also finds no basis in the evidence. The Defendant gave no evidence as to her knowledge of any safe in his flat. It was seemingly put to the Plaintiff that she had rifled through Mr Novick's safe and she denied it, which denial I accept (T38/35-T39/20). In fairness, Mr Zupicic makes reference to Mr Novick referring to his "hardbox" in the evidence referred to above.
Mr Novick of course does not give any precise date upon which the events occurred. There is no corroborating evidence the apartment had a safe. Further there is no way of knowing where his title deeds were although it may well be that he had them in his possession prior to July 2015. Given the reverse mortgage he entered on July 2015 it is unlikely that he would have had possession of his title deeds thereafter. More than likely they would have then been in the possession of the Commonwealth Bank who became the mortgagee.
Another matter which seemed to be troubling Mr Novick in the letter was the sale many years before of his land in Croatia. I am satisfied that his recollection as to the actual chronology is quite unreliable. There is little doubt on the documentary materials that the arrangement was formally entered into on 5 March 1997 (Exhibit P1). The sale of the land was for $4,000. I am satisfied the Plaintiff's brother at the time paid by Mr Novick $2,000. I also accept the Plaintiff's husband's evidence that at or about the same time he and his wife paid Mr Novick $1,500 and that Mr Novick said not to worry about the balance because they had gone to the trouble of organising the paperwork for the contract.
Mr Novick's letter however talks about a purchase price of $2,500 each of which only $1,500 had been paid by the Plaintiff. He then referred to something occurring two months before November 2015 in which Mr Zupicic (too little too late) gave him $1,000. Again I reject Mr Novick's account and prefer that of the Plaintiff's husband, namely that in December 2016 Mr Novick complained of a shortage of money and that in January 2017 Mr Zupicic paid Mr Novick $1,500 in cash even though Mr Novick requested $500.
The Defendant was cross-examined on whether she was instrumental in the drafting of this letter (T189/4-7). She denied this. However, I do not accept her denial. I am satisfied the letter was written entirely for the benefit of the Defendant. Mr Novick did not display any tendency on the evidence to be a habitual diarist, other than the basic cards he provided to the Defendant. The letter is clearly slanted to give an adverse picture of the Plaintiff. I am therefore satisfied that the Defendant did have more than an input at the very least in the production and content of the letter. It was also clearly prepared in anticipation of possible litigation. I am also satisfied she encouraged him to harbour and express negative views of the Plaintiff for her own ends.
As to the certificate of 18 November 2015 prepared by Dr Trachtenberg verifying somehow Mr Novick's mental capacity to write the 18 November 2015 letter, I should note that Dr Trachtenberg's capacity certificate cannot of course vouch for any underlying factual errors and allegations contained in the 18 November letter. In addition Dr Trachtenberg was not asked to express any opinion on Mr Novick's capacity to make any of the wills in 2014 or 2017.
In 27 May 2017 during a heated conversation between Mr Novick and Mr Zupicic recorded at paragraph 137 of the Plaintiff's first affidavit and electronically at Exhibit D6, Mr Zupicic on two occasions confronted Mr Novick with the time his wife had "been with you all her life" and how she had "been with you a long time. Every time she did a lot of things" for Mr Novick. This was not denied by Mr Novick.
In May 2017 Mr Novick made a further will again making the Defendant the sole beneficiary of his estate. In addition and virtually on his deathbed he signed a note purporting to authorise carte blanche considerable expenditure over some years undertaken by the Defendant (Exhibit D3).
I should note that in relation to the May 2017 will, there is a file note of Mr Vouroudis (Exhibit P3, 57-61) of 25 May 2017 at 11:00am. It records a meeting at a café apparently near Mr Vouroudis' office between Mr Vouroudis, Mr Novick, Ms Maria Sanfilippo and the Defendant. It is apparent in the file note the venue of the café was chosen because Mr Novick was too ill to use the stairs leading to Mr Vouroudis' office.
This file note is a somewhat unusual document and leaves a number of questions unanswered. Mr Vouroudis did not give evidence. It was created on the same date that Mr Vouroudis must have prepared the May 2017 will, which made the Defendant the sole executor and beneficiary of Mr Novick's estate. However, the file note makes no mention of a will being prepared. Neither does Mr Vouroudis appear to be aware of the existence of the two prior 2014 wills. The file note records discussions concerning power of attorney and enduring guardian, although no evidence of a 2017 power of attorney or otherwise is provided. Similar documents were prepared by Mr Havas in 2014. The 2017 will does not specifically refer to the prior 2014 wills, merely revoking "all former Wills and Testamentary dispositions heretofore made" by Mr Novick (Exhibit P3, 86).
It appears the Defendant introduced Mr Novick at the meeting to Mr Vouroudis. The Defendant accepted it was the first time Mr Vouroudis had met Mr Novick (T143/43-44). I should note the Defendant also admitted it was she who also previously introduced Mr Novick to Mr Havas (T127/28-29).
The file note nevertheless is evidence subject of course to any capacity issue of Mr Novick's apparent intentions at that date. It is evident in the file note that amongst other things Mr Novick repeated what he had previously said namely that he believed the Defendant had saved his life.
Shortly after this meeting and the making of the 2017 will, Mr Novick was again admitted to hospital. The file note does not elucidate why Mr Novick would want to make another will in addition to the two prior wills in 2014. Mr Novick died on 18 July 2017.

[24]

Defendant's credit: an overview

The Plaintiff's points of claim only allege Mr Novick made promises such that he should be estopped from reneging on them, or alternatively these promises gave rise to legally enforceable obligations. The Defendant's case does no more than deny the assertions of the Plaintiff and assert the Plaintiff has not discharged her onus of proof.
With this in mind, the Defendant can really say nothing directly about promises allegedly made over the years up to 2013 or the level of attention and care provided by the Plaintiff to Mr Novick over the same period. She does however purport to speak with direct knowledge of that issue from the time she came on the scene. On the Defendant's evidence she first met Mr Novick in Christmas of 2009. I reject that evidence. I prefer the date of August 2013 asserted by the Plaintiff and Ms Moretti as the first date when the Defendant met Mr Novick (Plaintiff's First Affidavit [12]; Ms Moretti Affidavit [12]). However, neither the accounts of the Plaintiff, the Defendant or Ms Moretti were seriously challenged (T188/10-15; T92/40-50).
The Defendant's evidence goes not only to care and attention she allegedly provided to Mr Novick but denies the Plaintiff cared for him as alleged at least after the Defendant moved into his apartment in 2015. She also purports to portray Mr Novick's relationship with his family and friends as legitimately frayed at some point after 2015. She also seeks to advance the case through partly opinion evidence that the Plaintiff was not an intended beneficiary of Mr Novick. For those reasons and unsurprisingly her credit was stridently challenged on a number of issues: 1. The Defendant's unsatisfactory explanations as to her financial affairs (T121/30-35; T124/5-25; T126/15-25; T129/15-25; T135/30-45; T136/30-45). 2. The Defendant's account of Mr Novick's alleged profligacy (T162/35-40; T163/20-40; T164/20-28). 3. The Defendant's unauthorised expenditures of Mr Novick's assets (T170/20-35; T173/25-36; T174/20-40; T176/30-35; T179/10-25; T179/35-50; T180/5-17; T181/25-35; T182/40-50; T183/1-7; T183/40-50; T184/50; T186/35-50). 4. The 18 November 2015 letter (T189/5-15). 5. The Defendant's alienation of Mr Novick from his family (T189/20-25). 6. The Defendant's ability to give detailed accounts (T202/25-31; T203/20-40; T207/40-50). 7. The Defendant giving false statements (T209/20-30; T210/5-15). 8. The Defendant's gambling (T216/4-10; T217/30-40). 9. The Defendant leading Mr Novick to believe their relationship was romantic (T224/15-21). 10. The Defendant taking photographs in preparation for a court case (T227/25-35).
Having observed the Defendant give her evidence and considered the materials available I am satisfied she is a wholly unreliable historian. She was I am also satisfied on most if not all occasions driven entirely by self-interest. Her evidence was unconvincing and implausible on many levels which I will deal with below but at times I am also satisfied that on occasions she told deliberate untruths.
The issues discussed below cover numerous aspect of her so called "close relationship" (T203/20-25) with Mr Novick. I am satisfied she soon appreciated after she met him he was a very ill vulnerable old man who was mortgage free, without wife or children. He did have friends and neighbours whom he liked seeing and his only family lived on the Northern Beaches.
I am also satisfied she encouraged him to take out the loan with the bank. She also in my view knew of the various wills drawn in her favour which I am satisfied she orchestrated with one of her various solicitors.
In particular her explanation of her financial affairs and her expenditure of Mr Novick's money was unsatisfactory to say the least and much of her evidence was again implausible and again untruthful.
In my view she also had a strategy developed at least at some point that she would drive a wedge between him, his family and worse some of his close friends out of her desire to control him and indeed the outcome which she successfully achieved by procuring three wills in her favour.

[25]

Relationship between Defendant and Mr Novick

It is clear that Mr Novick was infatuated with the Defendant. Whilst the Defendant pretended in my view in correspondence from time to time to portray their relationship as that of father and daughter she privately encouraged otherwise.
In the cards sent to her for various reasons, a selection only of which she produced, the tone and terms suggest in my view Mr Novick was in his mind at least in a romantic relationship with the Defendant. For Christmas 2015 he addressed a card "To my Dearest Angela" and concluded "Love Mario". He concluded his 2016 birthday card to the Defendant again in Italian with "Love you forever". He said in one dated 22 April 2017, poignantly (Exhibit ALCP1 Tab 2): You have been the most beautiful thing which ever came in my life. My love for you is eternal and growing stronger and stronger. A warm hug.
The Defendant never discouraged such comments.
I am also satisfied the Defendant led Mr Novick to believe she had somehow saved his life in 2015. Mr Novick was a man with a number of serious and complex health conditions. The Defendant had no medical or nursing qualifications and provided no evidence apart from her assertions to support the suggestion that she had saved his life. Nonetheless Mr Novick appears to have believed it. As a result he harboured an entirely misplaced sense of gratitude towards her which I am satisfied again she actively encouraged.
I am satisfied the Defendant deliberately pandered to Mr Novick for her own financial gain. In addition when tending to his very personal needs she made sure she created a photographic trail. As an example she took and kept photographs of herself in a surgical mask and apron cutting his toenails and multiple photographs of his skin lesions. That was done in my view for no other reason than to be able to prove she performed intimate and unpleasant tasks and in my view was cynically contrived
I am satisfied over time she placed herself as a wedge between Mr Novick, his family and some very close friends. That control involved I am satisfied causing him to become disaffected from them. As an example it is a testament to her level of control that she kept or was able to keep his death from his family and friends for some weeks after it occurred (see for example Plaintiff's Affidavit of 15 February at [57]).
Indeed I am satisfied the only reason he became disaffected from his family and friends was as a result of the Defendant's poisonous meddling. That disaffection occurred over time but certainly only after she came on the scene. A particular instance provided by Mr Aarons when by coincidence he and Mr Novick met and Mr Novick effectively complained that Mr Aarons had not visited him, I accept Mr Aarons as a truthful witness. The Defendant's explanation which I reject is that Mr Aarons was intrusive and irritated Mr Novick (T81/30-45).
I likewise reject the self-serving statements contained in paragraphs 190 and 202 of the Defendant's affidavit of 23 March that "the plaintiff was not an intended beneficiary of Mario's will".

[26]

Defendant's conduct concerning Mr Novick's money

One of the most disquieting features of this case is the loan taken out by Mr Novick in the middle of 2015. He was advised not to do it by Mr Havas as it was regarded by the latter as imprudent. I am satisfied the Defendant played a major role in Mr Novick taking out this loan. Within days of the loan being taken, the Defendant received half of it as a gift. She was also a beneficiary of the balance of the loan.
Her evidence that Mr Novick wanted to live the rest of his life in a somewhat profligate style and/or that he was an inveterate gambler I also regard as untruthful. She gave no evidence about gambling in her initial affidavit evidence, except she said he bought some lottery tickets. In her oral evidence and/or the first time she elaborated on that aspect in my view quiet untruthfully.
There is no evidence that Mr Novick had prior to meeting the Defendant lived a lavish lifestyle at all. He was a simple soul, who had virtually little if any education. He had worked as a mechanic at Johnson and Johnson, had retired and prudently with his superannuation savings bought his property outright and lived humbly and indeed abstemiously. He was on a pension and he had no private health cover as far as the evidence goes. He had no need to borrow the money the Commonwealth Bank was prepared to lend him in the middle of 2015.
The Defendant gave evidence that Mr Novick decided out of the blue in July 2015 to give her $105,000. In re-examination she said that this was given to her under cover of a letter written by Mr Novick (Exhibit D1). The letter dated 30 July refers to "this gift". It says nothing about $105,000. Indeed she could provide no explanation of why the amount was $105,000. In further alleged corroboration of the gift and again in re-examination (Exhibit D2) she provided two documents both Commonwealth Bank forms and both of which relate to international money transfers. One bears the date 5 August and the other 12 August 2015. However together they do not amount to $105,000 as each only refers to an amount of $50,000.
However both documents do in terms of the relevant dates accord with withdrawals made at the Potts Point branch of the Commonwealth Bank on 5 August ($50,000) and 12 August ($55,000). There is nothing to suggest that these international money transfers were ever utilised. The withdrawals obviously occurred independently of them and indeed in any event neither of those documents was signed by Mr Novick. Her account is in my view not corroborated by Mr Novick's note, but I accept she was able to secure two withdrawals totalling $105,000 from his account to her sole benefit.
But there are many other withdrawals that she clearly effected by using his card and PIN number. Some were effected when he was in hospital. Some when he was clearly quite unwell.
Some withdrawals occurred in or in the vicinity of the Star City Casino where the Defendant admitted she went from time to time. I reject for example that Mr Novick was an inveterate gambler. He may well have bought lottery tickets. However not once in her affidavits did the Defendant refer to Mr Novick's inveterate gambling habits. I am satisfied that many of the withdrawals were done purely for her purposes and for her interest alone. The Defendant admitted she gambled herself at T214/35-T215/45 and had attended Star Casino on her own. I am satisfied she was the individual who gambled. It was not put to any other witness, most of whom knew Mr Novick well, that he was a profligate or an inveterate gambler. I am satisfied she invented that assertion on the run otherwise being unable to explain her own unauthorised expenditure.
Indeed I am satisfied Mr Novick got very little if any benefit from the $213,000 borrowed by way of mortgage against his apartment. There are some withdrawals which relate to the acquisition of goods which may well have gone into his apartment, such as: $2,300 at Harvey Norman on 2 September 2015, $109 at Freedom Furniture on 16 September 2015, $230 at Harvey Norman on 17 September 2015 and $576.76 at Beacon Lighting on 11 October 2015) (Exhibit P2, 56-8). However, on the grant of probate he is said to have owned goods valued at only $2000 (Exhibit P2, 40). However many of the withdrawals are cash withdrawals and much of that money went I am satisfied on entertainment and other expenses for the likely benefit of the Defendant.
I do not accept the Defendant spent any substantial amounts of her own money on furniture and upholstery in Mr Novick's apartment, although I note the Defendant did provide some bank records of purchases at Exhibit P3 pages 75-8. At Exhibit P3 page 78, for example, the Defendant provides a list of purchases on her Go MasterCard at Harvey Norman for $1,096.80 on 12 July 2015, $1,439.03 on 13 May 2016 and $3,088 on 29 January 2018. The latter purchase in 2018 is not relevant. There is no way of knowing the source of the funds for the Go MasterCard and at least the 2016 and 2018 purchases could have been sourced from the $105,000 gift. In any event the Defendant provided no receipts for any expenditure allegedly made by her.
I am satisfied she was so concerned about what his banking records would expose that on the very day of his death she had him sign in terms she printed on a document a statement (Exhibit D3) by which she sought authorisation for the various expenditures she knew she had undertaken from his accounts. It was the imminence of his death which clearly provoked fear in her that she would be exposed for substantial unauthorised withdrawals. I am satisfied she knew that many of those withdrawals were not authorised at the time hence the retrospective blanket cover she sought to obtain by the very general authority she had Mr Novick sign shortly before he expired. This was an act of naked self-preservation, not one borne of any genuine affection or concern. She also did so in the knowledge of her present solicitor Mr Vouroudis.
Indeed the self-preservation aspect of it is best highlighted by the very fact that she photographed the page signed in Mr Novick's shaky handwriting and sent as a text message to her solicitor Mr Vouroudis at 12.49pm accompanied by a message thanking him for the advice given. Mr Vouroudis did not give evidence before me. There is no way of knowing what advice was given or when it was given or what physical and or mental condition Mr Novick was in when he received the so called advice. The Defendant did assert during cross-examination that the 12.49pm note was made in the presence of doctors and a social worker (T238/30-35) although no one was called to verify this and no precise date of death has been provided on the hospital records. All that is clear is that he died on the very day she secured this retrospective release.
However there are other particular withdrawals of concern. The withdrawals of $2,000 on 16 July 2017, $10,000 and $2,000 on 17 July 2017 immediately prior to Mr Novick's death on 18 July 2017 are of concern. After his death there are also withdrawals of $2,000 on 20 July and $2,000 on 21 July 2017 (Exhibit P2, 67). There is no mention of a funeral in the Defendant's evidence and when cross-examined the Defendant alleged Mr Novick on his deathbed kept telling her that she needed to get all the money out of the bank (T182/45-50; T219/30-35). She also alleged on cross-examination the $10,000 she withdrew on 17 July 2017 was for the purposes of expenses in relation to applying for a nursing home for Mr Novick (T221/5-T222/45). This is contrary to Mr Novick's recorded wishes that he wanted to stay in his unit and live as independently as possible (Exhibit ALCP1, Tab 16). No evidence was produced of any arrangements with any nursing home.
As to her explanation of the $10,000 withdrawal I am satisfied this was a deliberate falsehood designed to obfuscate the fact that the Defendant was withdrawing very substantial amounts of money for her purposes whilst Mr Novick was extremely unwell or dead. I am not satisfied Mr Novick withdrew any of the money on these dates as he was in hospital and dying.
A further issue of note is the Defendant's account of her much earlier expenditure on her elective foot surgery, particularly $5,600 to the Centre for Podiatry in Edgecliff, $1,173 for Darlinghurst Day Surgery and $1,600 for an anaesthetist (Exhibit P2, 58). In her affidavit of 23 March at [67] the Defendant stated on 22 October 2015 she underwent an operation on both her feet at the Sydney Day Surgery, but her affidavit evidence does not indicate how she paid for it. In cross-examination, she initially appeared to accept that it was she who paid for it (T167/49-T168/7). During further cross-examination, when Mr Novick's bank statements came to light, the Defendant had to admit that the money for the foot surgery came out of Mr Novick's account (T170/19-T171/4). When further questioned she asserted she paid him $8,000 in cash to repay him as it was somehow convenient for him. This is nonsensical. I am satisfied the Defendant was quite untruthful, and she asked Mr Novick to pay for the procedure. That she reimbursed him with $8,000 in cash has no basis on the evidence.

[27]

Defendant's control over Mr Novick

There are other somewhat disquieting matters concerning the Defendant. For example I am satisfied she became entirely controlling of Mr Novick.
The Defendant's various directions to Catholic Care and other carers which she herself has attached to her affidavit of 23 March portray a person who was in my view ruthlessly controlling. It is also clear that she dictated and wrote the email of 25 November 2016 (Exhibit ALCP1 Tab 11) purporting to give the Defendant authority to deal with the Body Corporate at his apartment. The terminology used in the email especially her description of her as the "Alter Ego" betrays the fact that she wrote that email herself. I am satisfied that when one compares both the grammar, vocabulary and general terms of expression in Mr Novick's own handwritten letter of 18 November 2015 he clearly did not write the email of 25 November 2016, contrary to the Defendant's assertion in her affidavit of 23 March at paragraph 107: "At Tab 11 is a true copy of a letter dated 25 November 2016 from Mario to the strata managers for 10 Barncleuth Square". However I accept none of this was put to the Defendant in cross-examination but this document was introduced in to evidence by the Defendant.
As disturbing is the Defendant's email of 5 January 2017 written to Mr Hambridge (presumably of Centrelink). This is another document attached to her affidavit of 23 March with little explanation other than the statement at paragraph 59: "At Tab 8 is a true copy of my letter dated 5 January 2017 to Mr Ross Hambridge at Centrelink (Exhibit ALCP1 Tab 8). That email contains what I regard to be a number of falsehoods. First of all she attempts to portray Mr Novick when she first met him as a lonely hermit who sat around all day in his dressing gown. Whilst there may have been times when he did just that to describe him as somewhat a pathetic individual to whom the Defendant made all the difference is in my view a gross overstatement. The plain purpose of this email is to support an application for an invalid pension for herself. She makes a number of assertions in the email which clearly are false in my view. First that she was paying Mr Novick $80 a week rent. There is no evidence that she did this. Indeed she makes no assertion to that effect in her evidence. Quite the contrary after the middle of 2015 she appears to have ready access to his bank account and dipped into it at will. There is no suggestion that she had incurred and extra $140 a week in taxis or shopping and even if she did her own evidence is that not only did Mr Novick give her $105,000 as a present he clearly permitted her to use his bank account.
In addition to outlining her straitened circumstances she failed to inform Mr Hambridge that in the November of the previous year she had paid $58,000 deposit on an apartment off the plan in Parramatta. Further she failed to disclose to Mr Hambridge the moneys that she had in her ANZ account. Insofar as the email was intended to portray a woman overburdened with the care of an elderly and very sick man and herself in need of an invalid pension, I am certain that he filled that description but she made sure she was reimbursed for every dollar she spent and more secured for herself the status of sole beneficiary of his estate. Again this matter was not explored in cross-examination but it is a document introduced into the litigation by herself.
Needless to say, in so far as the Defendant is concerned I am unable to accept most of what she says about her relationship with Mr Novick as truthful or reliable or anything she attributes to him about the Plaintiff and his friends.

[28]

Were the promises made?

The principal issue in this case is nevertheless first whether promises were made in the terms alleged by the Plaintiff. In my view there is an abundance of evidence that promises were made as alleged. First the Plaintiff herself asserts that they were. There was no cross-examination of her to suggest that the promises were not made or not made in the form she alleges. I accept her evidence as truthful.
Although there was an attack on her credit it was confined to what I may call side issues.
For example she was challenged about her assertion that she had contributed to Mr Novick's motor car expenses up to 2016. Unsurprisingly she had to concede that that was a mistake because he had stopped driving in the year of 2009 or 2010. She was also challenged as to her knowledge of the whereabouts of the Sydney Dental Hospital and in her evidence at least on one view it would suggest that she was somewhat unsure about it. Further she was challenged about the lack of paperwork she had or had not retained to support her assertion about expenditure made for and on behalf of Mr Novick.
Whilst some criticism of her legitimately can be made in respect of each of the matters I have just identified, I do not consider they detract from her evidence as to Mr Novick's promises as I have already said part of my acceptance of her evidence is the failure to challenge her directly. Indeed her cross-examination proceeded upon the basis that the Defendant accepted the promises were in fact made (T36/23-33).
In any event in my view there is an abundance of independent corroboration that the promises were made if not in identical terms to those she asserts then in substance to the same effect.
Her evidence is corroborated by the evidence of her husband who says Mr Novick told him that the Plaintiff was his "number 1" and that she had done so much for him over the years and he was leaving his apartment to her (Mr Zupicic's First Affidavit [56]). Importantly during the somewhat heated conversation (recorded at Exhibit D6) which the Defendant thought helpful to record on two occasions, the Plaintiff's husband made direct assertions to Mr Novick himself at least about the work undertaken by the Plaintiff and importantly Mr Novick did not deny that she had undertaken that work. Whilst that does not deal clearly with the promises it is nonetheless important evidence that provides direct evidence from Mr Novick.
Mr Aarons who I accept was a neighbour and indeed a friend of Mr Novick, was told by him that he would look after the Plaintiff when he died. Further he would look after her boys. Indeed he told Mr Aarons whose evidence I accept as truthful that he was going to give his apartment to the Plaintiff as a "thank you". I am satisfied he told Mr Aarons again which I accept was sometime in 2011 and again in 2014 that he had made a will in which he was leaving everything to the Plaintiff and her family. Again it was not suggested in cross-examination to Mr Aarons that his evidence in this regard was untruthful or inaccurate.
Mr Novick told Ms Moretti exactly the same thing during 2015 when she asked him whether he had a will in place. He told her that he had made a will and that everything would be left to the Plaintiff. Again that evidence was not challenged. I accept her evidence as truthful.
Mr Novick told Ms Whitham-Taudien exactly the same thing. Namely that the Plaintiff and her family had been wonderful to him and he was going to leave his unit in Potts Point to the Plaintiff when he died. I accept her evidence.
In my view the Defendant's evidence leaving her credit to one side is unhelpful and indeed quite irrelevant in relation to these promises. The main reason is that she was not privy to any of them and they were made over many years when the Defendant was simply not on the scene. Insofar as she sought to give any evidence to the contrary I do not accept her evidence in that regard as I have clearly indicated.

[29]

Did the Plaintiff act to her detriment?

Over the years from the time the Plaintiff first emigrated to Australia until perhaps 2016 I accept that the Plaintiff with her husband performed the various tasks she asserted they did. I am satisfied she prepared and took Mr Novick food. He spent Christmas and Easter with the Plaintiff as part of the family over many years. I am also satisfied she took him to medical appointments from time to time. On some occasions Mr Novick took himself. I also accept she bought him clothes, and with her husband refurbished his kitchen and installed an air conditioner into his apartment. I am also satisfied for example that one of the reasons she refused promotion at the Dee Why RSL was because of her own family commitments but also in part as she asserts to remain flexible so that she could attend to Mr Novick. I am satisfied that over the years on countless occasions she travelled from Dee Why or Mona Vale to be with Mr Novick, keep him company, clean and wash his belongings and transport him to her home.
The photographs which are attached to the Plaintiff's affidavits cover a very long period from 1994 to 2017. There are early photographs of Mr Novick, the Plaintiff and her small children, culminating in much more recent photographs of the Plaintiff walking with Mr Novick. They portray in graphic form the long period over which they all enjoyed each other as a family.
Although she has no receipts I accept that she and/or her husband expended moneys on refurbishing and/or repairing Mr Novick's kitchen, buying him an air conditioning unit and for many years servicing at times and repairing Mr Novick's car. Insofar as the Defendant suggests as to the latter the car was always serviced in Rushcutters Bay by Mr Vetta at NV Motors, I observe that Mr Vetta was neither called, nor were any records procured by subpoena from his business to corroborate any assertion to that effect made by the Defendant.
As another example Dr Trachtenberg was called ostensibly to prove that the Plaintiff never took him to a medical appointment at his surgery. His evidence on one view might tend to support that proposition. First Dr Trachtenberg was able readily to identify the Defendant but said that he could not recognise the Plaintiff. However given the very busy schedule and practice he runs he fairly acknowledged that the Plaintiff may well have taken Mr Novick to the surgery but been in a waiting room and out of his sight. In any event Dr Trachtenberg's evidence although not unimportant was really a very small part of the history of the relationship between the Plaintiff and Mr Novick.
So far as the issue of reliance is concerned I am satisfied that Mr Novick did raise the question of payment on a number of occasions perhaps because although the Plaintiff was related to him he felt it perfectly appropriate that he should at least raise the question. Indeed I am satisfied that he did offer to pay her for her services and that she refused it. I am also satisfied it was in this context whenever the question of payment arose and she rejected it that he reassured her that he would leave everything to her in his will. After all this was his only family distant or otherwise which he had in Australia. I am satisfied she believed he would do what he promised.
To some extent the Plaintiff's evidence was related in general terms. But after all given the nature of their relationship I would not have expected in a family setting for people to keep precise diaries of what they did, what they said, and how much they spent from time to time on loved ones.
I am satisfied that the Plaintiff indeed relied upon the promises made by Mr Novick as part of the reason why she visited him, assisted him, spent money on him and had him come to stay at her home, and resisted promotion at the Dee Why RSL. I consider the promises played a significant role in the way the Plaintiff ordered her life. The Defendant herself it seems grudgingly accepted she "started" to see the Plaintiff come on Wednesdays from late 2015 to assist Mr Novick (T189/25-30). The Defendant also accepted Mr Novick would visit the Plaintiff on Easter and Christmas (T190/20-30) but denied Mr Novick would ever stay over. She denied the Plaintiff did anything like clean, wash Mr Novick's clothes or run errands for him (T190/40-50). I consider her evidence as entirely unreliable and I do not accept it.
The Plaintiff said in effect that she actually relied upon those promises and had an expectation accordingly and she was not challenged on this. I accept that evidence as truthful. To make the journey to look after him or to attend to his needs and/or to have him to stay over the many years I am satisfied was in the relevant sense a detriment. It obviously precluded the Plaintiff from attending to other family matters or indeed simply spending time for herself. I draw these conclusions from the whole of the evidence but in particular evidence given by the Plaintiff and corroborated by others. I am fortified in my views because these issues were not seriously challenged by the Defendant.
The Defendant in denying the Plaintiff's assertions alleges she was assisted by a woman from Catholic Care who came every Tuesday for three and a half hours to do the washing (T192/30-35). Apart from her say so, there is little evidence to support that. In any event the Defendant also accepted that in January or February 2016 she moved out of Mr Novick's apartment to Edgecliff for about 6 months (T191/15-20).
The detriment so called although in a family setting to some extent is perhaps a misnomer but it was the additional time, energy and effort expended by the Plaintiff partly I accept out of a sense of familial obligation but I am equally certain as a result of the many promises from Mr Novick to leave her his entire estate. The travelling from the Northern Beaches to the Eastern Suburbs over the years was not and is still not an easy journey. In turn the Plaintiff and her family made a room available in their home at Mona Vale, where I am certain Mr Novick stayed happily from time to time over Christmas, New Year, Easter and on some weekends. Having an extra person in the house or at the dinner table over a long period, even when they are family can be and often is a burden. That burden is one that family members often willingly assume nonetheless it requires effort and in this case because of the distance between them considerable effort on the part of the Plaintiff. I am satisfied the considerable time and expended effort on Mr Novick over the many years would not have been done by the Plaintiff were it not for the promises made by him to her in relation to his estate. Those efforts were expended over at least 20 years. The cost in terms of money and time would be impossible accurately to quantify but on any view it was clearly very substantial.

[30]

Conclusion

I am satisfied that over the many years Mr Novick indeed made the various promises which the Plaintiff and others have given evidence to the effect that as a result of looking after him he would leave his estate to her. I am also satisfied that the Plaintiff relied to her detriment upon those promises. The detriment suffered by dedicating time and effort to Mr Novick was life changing. Those years cannot be regained.
As a result of Mr Novick becoming enamoured of the Defendant, he was prepared to renege on his promises to the Plaintiff.
In my view given the length of time over which the Plaintiff carried out the various activities as a result of his promises as I have found it would in my view be unconscionable to permit him to resile from the promises made and the expectations which he created in the mind of the Plaintiff and which caused her to expend the time and effort as alleged. In the circumstances in my view Mr Novick should be held to those promises.
Further in my view this is a matter in which the mere measure of money is insufficient to recognise that which the Plaintiff has done in reliance upon Mr Novick's promises. A substantial fulfilment of the assumption upon which the Plaintiff's actions were based in my view requires her to be placed in a position whereas as far as can be now she obtains the benefit of what is left of his estate.
This case is about whether it would be unconscionable to allow Mr Novick to avoid his lawful obligations. In my view therefore in order to fulfil Mr Novick's promise and its performance I think a trust ought to be declared on what is left of the proceeds of his estate.
The Plaintiff alleges an alternative claim in breach of contract arises with the date of breach either on Mr Novick's death on 18 July 2017 or on the date of the making of his last will on 25 May 2017 (Outline of Final Submissions [41]). This argument was not ventilated comprehensively in written submissions, oral submissions or examination of the witnesses.
A breach of contract claim takes into account the question of whether the parties intended to enter into legally binding relations. This is an objective determination taking into account the totality of the evidence including the state of affairs between the parties. I am of the view that the evidence does not establish that Mr Novick ever intended to enter in a form of contract with the Plaintiff in relation to his estate, as there is no objective evidence to establish this: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8. I am of the view the breach of contract claim is not made out.
In the light of my findings, I am inclined to make some of the declarations and orders sought by the Plaintiff, inter alia, in the Points of Claim dated 9 March 2018 at [11]-[16].
However, I will hear submissions if necessary on the precise declarations or orders sought.
I will hear the parties on costs if necessary.

Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick

At a glance

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Judgment (31 paragraphs)

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Cases Cited (21)