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[2026] NSWSC 772
Supreme Court of NSW
2026-07-03
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McFarlane v McFarlane [2026] NSWSC 772
Hearing dates: 11 – 14 May 2026
Decision date: 03 July 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Judgment for the plaintiff for possession of the land in folio identifier [REDACTED] being the land situated at and known as [REDACTED].
(2) The defendant is to pay the plaintiff’s costs.
(3) The cross-claim is dismissed.
(4) The defendant is to pay the cross-defendant’s costs.
Catchwords: ESTOPPEL — proprietary estoppel — where defendant relies on proprietary estoppel to resist order for possession of property in favour of plaintiff — where defendant contends plaintiff promised that the defendant and defendant’s spouse and children could reside in the property for the term of plaintiff’s life and would be bequeathed the property thereafter — defendant seeks orders that plaintiff holds property on trust for the defendant and must transfer title — whether defendant has established plaintiff gave to the defendant a clear and unequivocal promise — whether defendant has established reliance and detriment — whether relief sought by the defendant would be disproportionate in all the circumstances
Cases Cited: Arnautovic v Cvitanovic (2011) 199 FCR 1; [2011] FCA 809
Bahnik v Budimir (No 2) [2026] NSWSC 456
Bassett v Bassett [2021] NSWCA 320
Bassett v Cameron [2021] NSWSC 207
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Galaxidis v Galaxidis [2004] NSWCA 111
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Kronenberg v Macaulay [2025] NSWCA 195
Milling v Hardie [2014] NSWCA 163
Penya v Penya [2026] NSWCA 73
Priestley v Priestley [2017] NSWCA 155
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Slade v Brose [2024] NSWCA 197
Soulos v Pagones [2023] NSWCA 243; (2023) 416 ALR 181
Thompson v Palmer (1933) 49 CLR 507; [1933] HCA 61
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Anne Catherine McFarlane (Plaintiff/First Cross-Defendant)
Annabel McFarlane (Defendant/Cross-Claimant)
Warick Ian McFarlane (Second Cross-Defendant)
Representation: Counsel:
P Afshar with M Kearney (Plaintiff)
D Smallbone (Defendant/Cross-Claimant)
J Jaffray (Second Cross-Defendant)
Solicitors:
Selvaggio Lawyers (Plaintiff/First Cross-Defendant)
Apex Legal (Defendant/Cross-Claimant)
Newnhams Solicitors (Second Cross-Defendant)
File Number(s): 2025/00341649
The plaintiff is the owner of a property situated in Bronte (“the Bronte property”). For the past seven years, the defendant, her daughter-in-law, has lived there with her children. The plaintiff, who is currently aged 88, wishes to sell the Bronte property to fund her purchase of a retirement village unit, into which she plans to move.
The defendant refuses to leave the Bronte property, maintaining that the plaintiff promised that she could reside in the property as long as she liked and indeed, when the plaintiff died, she would bequeath the Bronte property to the defendant and her husband Warick, one of the plaintiff’s children.
The parties agree that the only reason that the plaintiff would not be entitled to the orders she seeks is the claim asserted by the defendant and the matter proceeded on that basis.
For ease of reference and as is customary in these types of family disputes where all the participants have the same surname, I will refer to the parties by their first names. The family members relevant to these proceedings are:
The plaintiff, Anne McFarlane. She was married to Ian McFarlane, although they separated the year before Ian died in 2010. She has two sons from an earlier marriage, being Mark and Anthony (Tony). She had one child with Ian, being Warick;
The defendant, Annabel McFarlane, aged 56. She married Warick in 2005 and they separated in 2024. She has two children from a former marriage, now aged 31 and 28. Warick and Annabel have two children of their marriage, now aged 18 and 15. Warick has one child from a previous marriage, who is currently 29 years old; and
Mark McFarlane, Anne’s son from an earlier marriage. He is married to Scott. He is said to have been the person who ran things from the family perspective.
Annabel relied on affidavits dated 12 March 2026 and 8 May 2026, respectively. She gave evidence at the hearing and was cross-examined. Although Anne served a number of affidavits and was present during parts of the hearing, no evidence was adduced from her, other than documents. Annabel also relied on an affidavit from Gina Rutonno, who was not required for cross-examination.
The only oral evidence adduced in the plaintiff’s case was from Mark, who prepared an affidavit dated 5 May 2026 and was cross-examined.
In resisting the claim for possession, Annabel filed a cross-claim naming Anne and Warick as cross-defendants. She asserts that, although she did not seek any orders against Warick, it was necessary that he be joined to the proceedings, as he had an interest in the proceedings.
In her cross-claim, Annabel sought:
A declaration that Anne held the land upon constructive trust for Annabel and Warick;
(a) To permit them to reside in the Bronte property for such time as they may wish to accommodate themselves and their children; and (b) To devise the Bronte property unencumbered to her and Warick subject to Anne’s right to occupy, use and enjoy a “granny flat” which was situated on the property;
(a) Entering or undertaking any work on the property without permission; (b) Demanding or attempting to obtain possession of the property; or (c) Otherwise disturbing Annabel’s quiet enjoyment of the property;
An order that Anne pay the sum required to discharge mortgage held over the property; and
Further or in the alternative, an order that Anne pay her equitable compensation.
For the purposes of resisting Anne’s claim for possession and obtaining the declarations which she seeks, Annabel relied upon the principle of proprietary estoppel.
The promise relied on by Annabel is set out in both the defence and cross-claim as follows:
“a. [The defendant], [Warick] and their, his and her children could live in the said Bronte home for the life of Anne; and
b. She would by Will leave the Bronte property and the defendant.”
The legal representatives of Annabel refer to this as “the promise” and any reference in this judgment to “the promise” is a reference to the whole of the asserted promise. The promise has two parts and Annabel does not assert that it is divisible in the sense that acceptance that the promise was made only in part would be sufficient for her to succeed. Plainly, the point of the case is to obtain an order that the Bronte property must be bequeathed to Annabel and Warick and Annabel must be permitted to live there until that happens.
The central issues in the proceedings are:
Whether Annabel has established the estoppel which she maintains; and
Whether the orders Annabel seeks should be made.
If not, Anne is entitled to the order for possession she seeks.
The outcome of the proceedings is significant for the parties because:
Anne feels that she needs to move to a retirement village and has already agreed to purchase a unit in a retirement village. She has taken out a bridging loan to fund that purchase. Her only asset of any substance is the Bronte property. On Annabel’s case, Anne agreed to allow Annabel to live in the Bronte property as long as she likes and then give it to her as part of her will, such that orders must be made giving effect to that promise, leaving Anne without any asset at all or any means of funding her retirement village purchase; and
If Annabel is not successful, she, with her children, will be forced to leave the property. She is a childcare worker. If she is forced to leave, she and her children will have no home to live in (although it is apparent both from an offer made at the commencement of the hearing (discussed below) and the content of discussions and text messages that the other members of the family had wished that she be provided with other accommodation).
At the commencement of the hearing, Anne took the unusual step of tendering an open offer to Annabel in the following terms:
“Open offer by the plaintiff/cross-defendant – 11 May 2026
- Anne will purchase a residence in Anne’s name (either a house or apartment), which would be suitable for Annabel and her child/children to live in.
- Annabel and her children can reside there until [one of Annabel and Warick’s children] turns 23 years of age.
- Annabel and her children will not be required to pay rent for the residence, but they are required to pay outgoings.
- Any repairs to the purchased residence will be paid for by Anne.
- Annabel agrees to release all claims concerning the residence or Anne’s estate.
- The proceedings be dismissed with no order as to costs.”
“… prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to the other’s detriment.”
“… an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part.”
“It is recognised that the fundamental purpose of equitable estoppels is to protect against detriment (see Meagher JA in Q v E Co at [123]), namely, the prejudice or disadvantage that the party invoking the estoppel would suffer by reason of his or her change of position in reliance on the encouraged expectation if there were to be a departure therefrom (see Grundt per Dixon J at 674-675; and Bathurst CJ in Ashton v Pratt.” (citations omitted)
36 In Walton Stores (Interstate) Ltd v Maher, Brennan J set out six requirements for an equitable estoppel which, as Senior Counsel for David submitted and as explained below, were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence. When the focus is only upon an equitable estoppel which arises by reason of encouragement from a promise, the elements must be satisfied can be refined as follows.
37 First, as with the requirement for representations in estoppels by representation generally, there must be a ‘clear and unequivocal’ promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.
38 Secondly, a reasonable person in the promisor’s position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an “encouragement” for the promisee to act.
39 Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance ‘made a difference to [the promisee] taking the course of action or inaction’.
40 Fourthly, the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, ‘[i]t 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’. Hence, the relief is ‘moulded accordingly to prevent th[e] detriment’. In cases where the detriment suffered by a plaintiff is ‘a relatively small, readily quantifiable monetary outlay on the faith of the [defendant’s] assurances’ then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered ‘involves life-changing decisions with irreversible consequences of a profoundly personal nature’, the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.
41 Once these elements are satisfied, it is commonly said that conscience requires that A redress the detriment suffered by B. As has been repeatedly emphasised by this Court, the description of circumstances as unconscionable ‘is to characterise the result rather than to identify the reasoning that leads to the application of that description’.” (citations omitted)
There remain some questions as to whether the requirement that a promisor give to a promisee a “clear and unequivocal promise” applies to all types of equitable estoppel: see Kronenberg v Macaulay [2025] NSWCA 195 (“Kronenberg v Macaulay”) at [158] (Leeming JA, with whom Mitchelmore and Free JJA agreed). However, the Court of Appeal has confirmed that in cases concerning proprietary estoppel (this case being one), each of the requirements set out in Kramer v Stone must be satisfied: Penya v Penya [2026] NSWCA 73 (“Penya v Penya”) at [38] (Bell CJ, with whom Mitchelmore and Adamson JJA agreed).
The decision in Kramer v Stone also clarified that:
If a promise contains encouragement to a promisee, in the sense that a reasonable person in the promisor’s position would expect that the promisee might rely upon the promise by some action or omission, there is no requirement for any further subsequent encouragement or actual knowledge of the acts of the promise taken in reliance of the promise (Kramer v Stone at [34]); and
It is sufficient for an estoppel to arise if either (i) a reasonable person in the position of the promisor would have expected, or (ii) the promisor actually expected, that the promise would be relied upon by the promisee in the general (detrimental) manner in which it was relied upon. Either (i) or (ii) is sufficient: (Kramer v Stone at [35]).
In applying the test set out in Kramer v Stone in this case, a number of key considerations arise:
A representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely: Galaxidis v Galaxidis [2004] NSWCA 111 at [93] (Tobias JA, with whom Giles and Hodgson JJA agreed);
The word “unequivocal” means leaving no doubt or ambiguity: Penya v Penya at [44] (Bell CJ);
Where evidence demonstrates the promisor made a number of inconsistent promises over a period of time, the less capable those inconsistent promises are of founding the estoppel as alleged, at least if the promisee(s) are aware of promises made to others: Kronenberg v Macaulay at [107] (Leeming JA);
There is no presumption of reliance; reliance is a fact to be found: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (“Sidhu v Van Dyke”) at [58]. The encouragement of the promise on which a party seeking to enforce the estoppel relies need not be the sole inducement but may be a contributing cause; a party seeking to enforce does not need to prove precisely or categorically, how they would have acted differently. The question is whether, but for the relevant encouragement, the promisee would have acted differently in a significant or material way: see Slade v Brose [2024] NSWCA 197 at [239], [245] (Ward P, with whom White and Stern JJA agreed). See also Priestley v Priestley [2017] NSWCA 155 at [147] (Emmett AJA, with whom McColl JA agreed); and
The analysis of detriment in the context of a proprietary estoppel claim is not undertaken narrowly or technically. Rather, it involves a broad enquiry of all relevant circumstances. This can include taking into account countervailing benefits which have accrued to the party invoking the estoppel: Soulos v Pagones at [377]-[384]. See also Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (“Q v E Co”) at [124], [128] (Meagher JA, with whom Leeming and Payne JJA agreed).
Importantly, in this case, the asserted promise on which Annabel relies included a statement of testamentary intention. That is, Annabel says that Anne promised not just that Annabel, Warick and their children would live at the Bronte property for the remainder of Anne’s life but that Anne would bequeath the Bronte property to Annabel and Warick in her will, free of any encumbrances and on an unconditional basis.
In Bassett v Cameron [2021] NSWSC 207 (“Bassett v Cameron”) at [415], Ward CJ in Eq summarised the principles concerning the relationship between statements of testamentary intention and proprietary estoppel:
“The inherent revocability of testamentary dispositions is not necessarily a bar to finding that statements of testamentary intention are capable of serving as a basis for a proprietary estoppel, as even when the promise or assurance is in terms linked to the making of a will, the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise (Gillett v Holt at 227-8 per Robert Walker LJ (with whom Waller and Beldam LJJ agreed) cited in Delaforce v Simpson-Cook at [36] by Handley AJA). Reliance on representations of a testamentary disposition may be reasonable in circumstances where assurances to this effect are repeated over a long period (Gillett v Holt at 228). However, cases involving a representation as to testamentary intention are said to require circumstances that the promise was given and understood to be irrevocable. Young CJ in Eq, as his Honour then was, stated in Barnes v Alderton (2008) 13 BPR 25,281; [2008] NSWSC 107 (Barnes v Alderton) at [58] that, ‘that may be shown by circumstances short of an explicit statement that the promise is irrevocable.’ The question is not whether the person incurring the detriment understood that testators may change their wills, it is whether it was reasonable for the person incurring detriment to understand the particular encouragements or inducements in the circumstances to be an irrevocable promise (Barnes v Alderton at [51]-[54], [58]).”
Although her Honour’s decision in Bassett v Cameron was overturned on appeal, no appeal was brought from her Honour’s rejection of the claimed proprietary estoppel (see Bassett v Bassett [2021] NSWCA 320). Indeed, her Honour’s observations quoted above were recently endorsed by the Court of Appeal in Kronenberg v Macaulay (at [146]).
My approach will be to determine, having regard to these principles, whether the elements set out in Kramer v Stone are satisfied and then consider whether there is any reason not to enforce the equitable relief sought by Annabel.
Most of the background facts are not in dispute. They were established through Annabel’s evidence (or the case proceeded on the basis that some facts are uncontroversial, such as background facts).
Of course, Annabel’s evidence as to the promises said to have been made by Anne are in dispute and acceptance of her evidence on statements made by Anne is critical to the outcome.
The Bronte property had been in Anne’s family for a number of generations. It was previously owned by Anne’s parents and Anne and Ian purchased the property from them. Anne and Ian lived in the property. Anne and Ian separated in the years prior to Ian’s death in 2010. At some point, either before or after Ian’s death, Anne became the sole owner of the property.
Annabel and Warick met in 2000. They married in 2005. Warick is the only child of Anne and Ian, although Anne has two sons from an earlier marriage, being Mark and Tony.
Annabel is an early childhood educator. She is currently working in that field. Annabel says that during her marriage, she endured violence and abuse from Warick and that Warick has had significant problems with alcohol. In her extensive affidavit dated 12 March 2026, Annabel details many instances of his abusive conduct towards her.
At the end of the hearing, Warick’s counsel asked that I not make findings about this, as there are proceedings in the Federal Circuit and Family Court in which these matters will be considered. It is not necessary that I make any specific finding about the acts referred to in Annabel’s affidavit evidence, but as Annabel maintains that staying with Warick and enduring his conduct was part of the detriment that she suffered in faith of Anne’s promise to her, it is necessary that there be some finding about his conduct.
Annabel’s evidence on the topic was not the subject of other competing evidence, challenge during cross-examination or any submission to the contrary.
I accept that during the course of her marriage to Warick she has endured abuse, particularly during Warick’s excessive drinking periods. The nature, extent, continuity and frequency of such conduct may need to be considered in another jurisdiction. Many paragraphs of Annabel’s affidavit evidence which relate to events in her life and her relationship with Warick even before 2009 may have some relevance as context, but hardly bear on the essential issues. These are not family law proceedings.
At some point or points during the period 2009–2012, Anne came to the view and discussed with members of her family the idea that the Bronte property, a four bedroom house, was too big for her and that Warick and Annabel and their children could move in and that a granny flat could be built on the property for Anne to live in.
According to Annabel, Anne first raised with her the prospect of them living together in the Bronte property in 2009, when Anne said she wanted to renovate the property, that it was a huge house and that they could all live there together.
Ian died in July 2010.
At that time, Warick informed Annabel that Ian:
“… left me [and Annabel and Warick’s children] money in his will, but Annabel and Warick’s children’s] money is with the Public Trustee.”
Anne informed Annabel on a number of occasions how angry and hurt she had been that Ian did not include Mark, Tony or Tony’s children in his will. A conflict arose between members of the family about this and a challenge to the will was pursued by Tony.
By December 2010, members of the family, including Anne, Warick and Annabel, were actively looking at ways to renovate the Bronte property. According to Annabel, at this stage, the idea of a granny flat was first raised. Annabel says that Anne said:
“Why don’t we renovate [the Bronte property] for both of you and the kids? You can build me a granny flat to live in. This house is too big for me. You can have it. It will be yours.”
“118. During the family meeting Mark said words to the effect that:
a. ‘Mum wants to renovate [the Bronte property] for you and the kids to live in.’
And
b. ‘She wants to build a granny flat for herself next door.’
And
‘Mum wants to help you because you are renting and need a bigger home.’
And
c. ‘Warick can do this job.’ He said that Warick had been working for a building company that had built Mark’s house.
And
d. ‘We could save money by Warick doing the job.’ He explained that ‘otherwise we would have to pay a builder much more.’
And
e. ‘Warick will receive a wage of $1,000 a week.’
And
f. ‘We will rent a property for Mum to live in while the work is going on.’
And
g. ‘We have about 800 thousand to a Mill for the renovations.’
- Anne turned to Warick and me and said words to the effect that:
a. ‘This place is too big for me alone and would be perfect for us all.’
And
b. ‘I will live in the flat. You will live in the house, and you will get the house when I die.’
And
c. ‘I want to keep it in the family as I have been here since I was 4.’
And
d. ‘Mark and Tony will get [the Rosebery property] and half of [the Maroubra property].’
- When Anne was speaking, I thanked her. I said:
Me: ‘It is a beautiful and great opportunity for me and the children.’
- Mark said to me words to the effect,
a. ‘Maybe you and Warick can pay some rent as well so that at the end of the day it becomes fairer.’
And
b. It will be good for Mum to have you here watching out for her in her old age, and you could help if there was an emergency. That’s the only reason I am agreeing to this.’
- During the meeting, Warick agreed to the various points as they were made.
For example, he said words to the effect:
Warick: ‘I agree to $1,000 a week,’ in response to what Mark said about a wage.
He also spoke about the DA processes and their timing and other practical aspects of the work.”
Annabel says in her affidavit dated 12 March 2026 that because of what was said in that meeting, she believed that Anne was giving her the property as a home for Warick, the children and her to live in forever and that it would be left to them when Anne died. Annabel says that the promise was made to her and Warick at that meeting and that, relying on that promise, she has acted to her detriment in a number of ways since. She submits that the estoppel arose at that time and subsequent events are only relevant either as to reliance and detriment or are relevant as corroboration of the promise made.
Annabel disputes the suggestion that her family was merely being given a place to live, that is, the Bronte property, as they did not have anywhere else to live, and disputes the suggestion that she knew that if they were to move from the home the property would be sold. Annabel disputes the suggestion that Anne’s wish that Annabel and Warick inherit the Bronte property was conditional upon:
The wider family circumstances remaining the same; and
There being equality in the inheritance of her three sons.
Demolition and renovation work on the property commenced in 2013.
Annabel says she was involved in many aspects of the renovations. Warick was in charge of the renovations, but they took a lot longer than anticipated and Annabel blames Warick for this. Annabel says that she and Warick did a lot of work during the renovations, including organising the tradespeople and materials, carrying bricks and materials, some landscaping and working on the outdoor areas. She says she purchased all the plants, except those plants gifted to her. She says she spent many hours obtaining quotes, trying to get the best price, and organising persons such as her friend’s father to do the tiling work.
Annabel includes in her affidavit dated 12 March 2026 reference to approximately 50 emails she says she sent during the period 2017–2021, relating to some of the work to be done on the renovations. This does demonstrate her involvement in the renovations, although 50 emails over 4 or 5 years might not be considered to be overly burdensome.
The renovations were completed in approximately 2018. A one-bedroom self-contained granny flat was built on the property. Annabel and the children moved in to the house shortly after the renovations were completed and Anne moved into the granny flat.
Warick was paid $1,000 per week by Anne for his work as the builder during the period of the works. At least up to 2024, that which was spoken about at the family meeting on which Annabel relies thus occurred.
Anne paid for most of the costs associated with the building works, although it may be that Warick and Annabel used some of their money to purchase some items associated with the works.
Unfortunately, it seems that Anne ran out of funds before completion of the building work. Warick had inherited $200,000 from Ian’s estate. When Anne started running out of money, a system was put in place that Warick would lend money to Anne, who would then pay the weekly sum to Warick for his work.
According to Mark, that was treated as a loan, specifically because Anne and perhaps Mark did not want Warick making contributions to the renovation work from his own funds. According to Mark, this would complicate the distribution of assets on Anne’s death, in the sense of making it all equal.
Annabel says in her affidavit dated 12 March 2026 that on a number of occasions subsequent to the initial promise made at the family meeting by Anne, further statements were made consistent with that promise.
Annabel says that in 2013, when Anne was looking at an old photograph of the house at the Bronte property, she commented on the photo and said to Annabel, “I am so happy Warick will have this house”.
In 2015, during a heated discussion with Warick regarding Mark, Annabel says that Anne said, “I know Warick. This is your house. You can do what you want”.
In 2018, during a discussion with a parent of their daughter’s school friend, Annabel says Warick said:
“It’s my Mum’s house. She has given it to us as an early inheritance. We have also contributed to the costs.”
“Scott: ‘You need to get this place cleaned up because it will have to be sold one day and Mark needs to get his share of the inheritance.’
Warick: ‘No this house was promised to me by mum, this is my house.’
…
Scott: ‘You know this house needs to be sold and divided?’
Annabel: ‘No that’s not what Anne has told us.’”
Following this exchange, Annabel called Anne on the telephone and it is alleged the two had a conversation to the following effect:
“Annabel: ‘Scott said the house has to be sold and split up. Warick is furious.’
Anne: ‘I can’t believe Scott would say this. Poor Warick I’m going to have to ring Mark and have a chat with him.’”
Annabel says that the following day, Anne said to her words to the effect:
“I’m so angry that Scott is so involved in my affairs. He has financial files on me. He should not have spoken to Warick like that. It’s not his business. This is my house and I can do with it what I want. Ever since he married Mark, Scott thinks he has control. He doesn’t. I need to see [the plaintiff’s solicitor] about my will.”
“You take such pride in the garden and Warick has built us all such a beautiful home. I feel at peace that it will stay in the family and hopefully will keep it in his family.”
“‘You are doing so much work around here to make this place perfect.’
…
‘I am going to change my will because this house belongs to you and Warick. You have both worked so hard.’”
During the period 2020–2025, things continued to deteriorate in the relationship between Warick and Annabel and according to Annabel, between Warick and the children and Warick and the rest of the family.
According to Annabel, much of this was associated with Warick’s abusive and aggressive behaviour. She details in her affidavit evidence various instances of such behaviour. She details the response of her children and the unsettling effect Warick’s behaviour had on them. At one point in 2022, after learning of this behaviour, Annabel says that Anne said words to the following effect:
“I need to have a serious discussion about selling [the Bronte property] and purchasing a home for the children and you to live in peace. Warick has a lot of issues. I need to go to [the plaintiff’s solicitor] and update my will so that it reflects the contributions and upkeep that you and Warick have made.”
“Warick: ‘Mark, Tony and Scott want me to sign something about putting this place into a trust. Mum always said it was my house.’
…
Anne: ‘I did always say this house was yours and that was my intention, but Mark and Scott are saying it’s not fair.’
…
[Annabel]: ‘What is going on with the house?’
Anne: ‘The boys want to put the house in a trust and when [one of Annabel and Warick’s children] is 25 we would downsize and get a smaller property but it would still be a large enough home for everyone.’
[Annabel]: ‘Warick and I haven’t been told about this. This is the first we have heard of this.’
Anne: ’The boys want to do it but don’t worry you will benefit by more money because of the effort, time and money you have contributed. I promise. You know I will never break my promise. I know the money and time you have contributed.’
[Annabel]: ‘Why is this happening now Anne.’
Anne: ‘I am being pressured by Mark and Scott to do this. I want the house to stay in the family. It has been my home since I was four. Mark was okay in the beginning about you having the house but since he married Scott he has changed and things have become about money. I don’t like Scott he makes fun of me and tries to tell me what to do. I hate the idea of Scott getting my money and giving it to his nephew. I don’t like his nephew. Scott is after my money.’”
“‘Mark and Tony are putting pressure on me. I must see [the plaintiff’s solicitor] to change my will. I’m getting a lot of pressure from Mark.’
…
‘I have to change my will to reflect what you and Warick have done so that it is made right and the house is left to you.’”
“Anne: ‘Yes we are going to sell the property when [one of Annabel and Warick’s children] is around 25, you can downsize and of course you will get more of the share because of the extra money contributions and work on the house.’
…
Mark: ‘Down the track, likely when [one of Annabel and Warick’s children] turns 25, we would need to sell the [Bronte property] and downsize. Warick and you will receive a greater percentage of the proceeds. Start thinking about what percentage you believe you believe you are entitled to.’”
Annabel, Warick and the children continued to live at the Bronte property until 2024, when Warick and Annabel separated.
Annabel says that 11 September 2024, she had a conversation with Mark to the following effect:
“Mark: ‘We have put a holding deposit of $5,000.00 on an over-55’s property in Waverley for mum. We need to get mum out of here because Warick will kill her if she stays, he’s constantly coming and going when he’s drunk. He won’t be able to access her freely in the new place. The stairs are a bit of a problem.’
[Annabel]: ‘What will happen to me and the children?’
Mark: ‘Mum wants to keep her promise to you to buy a place.’
[Annabel]: ‘What does that look like for me and the kids?’
Mark: ‘You can stay in the property for 8 years because [one of Annabel and Warick’s children] will graduate from University by then.’
[Annabel]: ‘What happens to me? I’ll be near retirement by then. I’ve spent 25 years looking after the family, raising children and dealing with Warick’s abuse. I feel like I’m being cast aside.’
…
[Mark]: ‘We’ll look together. Let me know what you would like. Maybe we could get another bridging loan for you.’
…
[Mark] ‘We’ll assess it at the time. I want to make the transition as easy as possible for the kids and get a place with a pool.’
[Annabel]: ‘We have dogs so a unit wouldn’t be suitable. I want the kids to stay in the area.’
[Mark]: ‘We'll look together. Let me know what you would like.’”
In October 2024, Annabel had a conversation to a similar effect with Anne, that is Anne had been looking at homes for her, but that she could really only afford $2.7 million or possibly $3 million.
In February 2025, Annabel received a number of text messages from Anne, expressing regret for the decision to sell the house and expressing a wish that they could be on the same side and find peace and happiness. In a text sent on 27 February 2025, Anne said:
“… You know that I said years ago that unless you and Warick could work things out in your marriage then the only alternative would be for the home to be sold. Time passed but things didn’t improve. Sadly there was only one option left, to sell the house ...
Let me assure you the children are my main concern and always will be. We need to work those details out quickly.”
The theme of the cross-examination was really to suggest that whilst Anne might have indicated that Annabel and Warick could live in the property and that it would be bequeathed to them, that was always subject to circumstances remaining the same and there being equality in the will between Anne’s three sons.
The cross-examiner raised as background the fact that Ian had left his estate to only one of his children, Warick and Warick’s children, and that caused considerable angst in the family and led to Tony successfully pursuing a claim against Ian’s estate.
The cross-examiner then raised with Annabel the issue of a property in Maroubra (“the Maroubra property”), in which Anne held an interest and which was lived in by Tony and Tony’s then wife, Jodie. Annabel accepted that she was aware that Anne had become angry about how unfairly Tony and Mark had been treated by Ian. She understood (she said initially) that Anne wanted to ensure that each of her three sons were treated equally and that she would bequeath her estate in such a way that would equalise the amounts received by her three sons, also having regard to the amount that Warick received from Ian’s estate. Annabel gave inconsistent evidence about her understanding during cross-examination, also denying knowledge that which she had just said she knew of.
Annabel was taken to a chain of three emails she sent to Anne on 22 July 2013, 24 July 2013 at 7:53am and 24 July 2013 at 9:48am, respectively. Annabel was cross-examined at some length about her statements in the emails, in particular, her defence of Warick and her statement to Anne, “here you go again, giving one of your sons a house”. It was suggested to her that that was a reference to the fact that Tony and Jodie were living in the Maroubra property. She initially denied remembering to what that comment referred, albeit she later accepted that it was a reference to the Maroubra property.
Annabel was then asked about her statement in the email of 22 July 2013, as follows:
“Q. Then you said ‘I may not tell you often but I tell everyone who would listen just how lucky my family and I are that you are doing this for us. I have never and will never meet anyone with your generosity. It’s endless.’ Do you see that?
A. Yes.”
‘Here I go again talking of something that I feel is not my business, but Mark has involved me in it by coming to me and saying that as Warick is getting the house (thus why Mark doesn’t want any money from Warick going into the house) he will have to pay out Tony and Mark at the end of the day.’
“Q. Those are your words, aren’t they?
A. Yep.
Q. Can I suggest to you that there was never a promise for you and [Warick] to have the house on no condition. Do you accept that or not?
A. No, because--
Q. The condition was that you would get the house if you could afford to buy out the interests of Tony and Mark in that house. Isn’t that right?
A. Yes.
Q. You understood always that that buyout was a condition of the promise that Anne made to you. Isn’t that right?
A. A little bit more to it than that.
Q. I'm asking you is it right or is it not?
A. Yes.
Q. It is right, isn’t it?
HIS HONOUR: That’s unfair in my view. ‘Right’, may mean many things. The witness has said that’s not the complete answer and you say ‘I want you to make it the complete answer’, effectively by putting her in a position where she has to say ‘Yes’, or ‘No’, to the complete answer. She’s indicated to you it’s not the complete answer. You don’t have to give her an opportunity to explain because this is cross-examination. Just say ‘No I’m not going to take that as the complete answer.’ But if you insist that she has to say ‘Yes’, or ‘No.’
AFSHAR: Thank your Honour.
Q. You understood that the promise that was made was that [Warick] and you could have a house if you could afford to buy out the other [brothers’] interests in the house. Isn’t that right?
A. No.
Q. You could buy out that interest by paying them cash. You understood that didn’t you?
A. No.
Q. Or you could buy out their interests by giving up some other interest in the balance of the estate. Isn’t that right?
A. Yes.
Q. So there still needed to be, you understood as at 2013, a buyout. Isn’t that right?
A. Yes.
Q. The buyout could have come as you said about Rosebery and [the Maroubra property] if the other two properties compensated Mark and Tony for their interests in Bronte then you could keep the house?
A. And there was a suggestion that we pay rent but we didn’t. There was a suggestion that we could pay them some rent. That’s also another--
Q. But you never paid rent, did you?
A. No.
Q. So coming back to my question, you always knew that the promise was conditional. Isn’t that right?
A. I was told that [Warick] and I could have [the Bronte property] and Mark and Tony would get [the Maroubra property].
Q. Could I just ask you to go back to your own words here? I’m going to suggest to you that that’s actually what you were told in that paragraph. That Mark told you as [Warick] is getting the house on the other side of the brackets, he will have to pay out Tony and Mark at the end of the day. That’s what you were told in 2013 isn’t that right?
A. I don’t recall. I’ve got it, I’ve got it written here, but it’s the first time I’ve seen it and I don't recall but it’s there so--
Q. I’m going to suggest to you that that’s what you understood at the time. Do you accept it or not?
A. I don’t really recall what I understood at the time. I was told that the building would be split up and it would be even and at that point they owned the building.
Q. The building would be split up and what?
HIS HONOUR: It would be even.”
“Q. So by 2013 you knew that as [Warick] was going to get the house [Warick] had to pay out his brothers. Yes?
A. According to this, yes.”
“Q. Because you’re saying there that ‘It will be quite soul destroying for [Warick] for him to give up his interest in Rosebery for the house.’ That’s right, isn’t it?
A. Yeah I – yeah.”
Annabel agreed that that was what she had said but said she could not remember saying it or why she was saying it. Again, it was put to her that the suggestion that she and Warick could have the Bronte property was based on the idea that Warick would give up his share of a family-owned property in Rosebery (“the Rosebery property”) and the Maroubra property and the other two brothers would receive an equal share. She said she could not recall this. She reverted to what she maintained Anne had said to her orally in response to the content of her text messages.
After a short break when Annabel became upset, she made statements to the effect that she was scared of Mark, that she “crawled” to them all (that is, the wider family) and that she was grateful to have a house to live in. She said Mark was “controlling” and that she would “go along” with it. She rejected the suggestion that she was not being truthful in this evidence, despite the fact that when preparing her latest affidavit, she made no suggestion that she was scared or intimidated by Mark.
Annabel rejected the suggestion that the way she was describing the members of the family in the witness box was a “recent invention” or a recent development in her thinking and that her feelings toward Mark (and the wider family) had not been the situation prior to the breakdown of her relationship with Warick.
Annabel was taken to further text messages in her cross-examination, with the cross-examiner again suggesting that the content of her own messages was inconsistent with the claims she made in the proceedings. Annabel again reverted to what she maintained Anne had told her orally, and not being able to understand or recall the context of her messaging.
It was then put to Annabel that when Tony and Jodie had divorced in 2019, the Rosebery property was sold and the proceeds of sale were placed in Mark, Tony, Warick and Anne’s superannuation accounts. Mark, Tony and Warick each got around $2.2 million. Annabel accepted that she knew something about this but said she was unaware of the detail. Annabel denied that she became aware at that time that the Bronte property could not be kept and would have to be sold.
Annabel agreed that despite extensive text messaging with Anne, nowhere did she, Annabel, mention that she and Warick would have the Bronte property unconditionally. She agreed that Anne never said that to her in any text or document.
In the end, except to the extent that Annabel continued to maintain that Anne said things to her orally, which were not recorded in any document, Annabel’s evidence in cross-examination did not assist her case.
This is because there were a number of text messages which are inconsistent with her case and none which set out the asserted promise, except adopting the construction which Annabel maintains. She had difficulty explaining that inconsistency, suggesting a lack of understanding, or anxiety and stress in dealing with the questions.
Annabel was taken to parts of Anne’s affidavit dated 18 December 2025 and her own affidavit dated 12 March 2026, in which she disputed certain conversations with Anne. Of course, Anne ultimately did not give evidence, but even when responding to a proposition as to the content of Anne’s affidavit, Annabel made statements which would not seem to be consistent with her claims. For example:
“Q. And that Anne also told you that if the relationship between you and [Warick] did not improve, the house would be sold?
A. And that she would buy me a property and the children a property, yes.
Q. She said to you, did she not, that if your relationship with [Warick] did not improve, the house would be sold?
A. She said to me she would buy property; a property for me a property for [Warick] and a property for her.
…
Q. What I’m suggesting to you is she didn’t say to you that she was going to buy you one house and buy [Warick] another house. All she said to you was that if your relationship with [Warick] did not improve, that she would sell the house? This is the Bronte house.
A. No, she said that she would buy me and the children a house, her a home and [Warick] a home. And she said it several times to me, especially after [Warick]--
HIS HONOUR
Q. Did she say as part of that conversation, ‘I will sell this house and buy some other houses’?
A. Yes.
Q. Yes, okay. So she said ‘Yes, I’ll sell the house’, but she added, ‘But I’ll buy other houses’, is that right?
A. Yes.”
When it was raised that Anne would buy a house for her to live in her own name (Anne) and Annabel could live in it, Annabel denied this, saying she thought she was being told that Anne would buy her own house. Annabel suggested she even told her therapist this and further, that she was sure there was a text message saying something like that. No such text message emerged.
Having regard to this evidence, it must be that even on Annabel’s case, Anne’s promise changed when Annabel and Warick’s marriage deteriorated, such that, according to Annabel, Anne was then going to buy each of her and Warick a separate house after selling the Bronte property. The cross-examination included the following exchange:
“Q. Yes. Now, the section I want to ask you a question about is - it says, ‘It’s all on me. I don’t want to party. I don’t want to go off with men. I only want peace,’ and then you said, ‘I want [Warick] to understand that things have to be different, or, as your mum said tonight, the house will be sold.’ You see that?
A. Yep.
Q. I want to suggest to you that that’s what she told you at least in November 2023, that is, Anne told you the house would be sold --
A. Yeah, and divided --
Q. -- if you and --
A. -- three ways.
Q. If you and --
A. I keep saying the same thing to you, and I’m not backing down on that.
Q. I’m going to suggest to you that that second part, that it be divided between you and [Warick], is not true. Do you accept that or not?
A. At that --
HIS HONOUR: Sorry, she didn’t say divided between you and [Warick]; she said divided three ways.
AFSHAR
Q. I’m sorry. Was it going to be divided three ways? I apologise.
A. At that point --
Q. I’m sorry. I misheard that. I apologise.
A. --Anne said, as I’ve said many times, that she’s going to sell the property and buy me one and the children, her and [Warick].
Q. So your evidence is that she was going to sell the house, buy a house for [Warick] buy a house for herself and buy a house for you?
A. Well, a property. Unit, whatever, but yes.
Q. I’m going to suggest to you that that’s not true. Anne never told you that?
A. Yes, she did.
Q. But what she did tell you was that, unless you and [Warick] would resolve the problems with the marriage, that she would sell the house?”
Annabel was cross-examined about the change in her relationship with Warick and, in particular, Warick’s behaviour towards her, and his drinking. She agreed that things changed in 2019, after they moved into the Bronte property. Annabel was asked about the work she and Warick had done around the house and the payments made to Warick for his work. Annabel denied knowing that the weekly sum that Anne was paying to Warick was from funds which had actually been given by Warick to Anne. She denied knowing about the content of Anne’s will.
Annabel also accepted that the value of the Bronte property had increased and that a lot of Anne’s money had gone into renovation of the property. She disagreed that she knew by 2018 that she and Warick could not buy out Tony and Mark in respect of their share of the Bronte property, maintaining that she and Warick would simply be staying in the property until Anne died and then she would get it.
In my view, the cross-examination was forensically successful, in that it resulted in some inconsistent statements being made by Annabel and concessions that did not assist her case. Annabel became stressed during the cross-examination, which may have been a reflection of the difficulties she has experienced in recent years and the position she finds herself in. Yet, it is also apparent that her stress at the questioning resulted at least in part from the difficulty in dealing with inconsistencies in her evidence and inconsistencies in statements she made previously, such as in text messages and emails.
Annabel may have a firm belief as to what she thought was going to happen and what should be happening, but the effect of cross-examination was really to cast significant doubt on the accuracy of the statements she made in her affidavits about the promise made to her.
“Annabel: ‘We are going to knock down the house and build a new one. We are going to live there and Anne is going to live with us. We are building a granny flat for her. Anne told us that we will have the property for our work and looking after her.’
…
Warick: ‘Mum’s going to give us Bronte. We’ll knock it down. She will live with us and we’ll look after her.’”
Mark prepared an affidavit dated 5 May 2026. He was cross-examined. The focus of his evidence was on the renovation of the Bronte property, Anne’s finances, more recent events involving Annabel and Anne, and Anne’s attempts to assist Annabel.
In his affidavit, Mark detailed his gifts and contributions towards Annabel’s family, including holidays and some school fees. To the extent that Annabel referred to Mark being present during relevant conversations with Annabel about the asserted promise, Mark denied that Anne used the words suggested by Annabel. He denied that Anne ever said in his presence that Warick and Annabel would be getting the Bronte property. He denied that he had ever said such a thing.
Mark maintained that in November 2024, he told Annabel that the Bronte property would need to be sold so that Anne could purchase her unit in Waverley and that Annabel and the children could continue to rent until they found a place for them to live in. Annabel said she would not move twice.
The cross-examination of Mark did not obtain the hoped-for concessions by him. He continued to deny that the asserted promise was made by Anne and denied attempts to suggest that some of the text messages tended to reflect that understanding. Mark agreed that in September 2024, a proposal was made to Annabel that another place would be found for her and the children to live in and that they could live in it for eight years. He agreed that that was the first time that proposal had ever been made. He also agreed that there had been earlier suggestions by Anne that another place would be found for Annabel to live in due to the problems in the marriage. Mark disagreed that Annabel became upset when the proposal about another property for her to live in was raised, suggesting to the contrary, that Annabel said, “I have been expecting this”.
I took Mark to be doing his best to give accurate evidence. No documents were shown to him which were inconsistent with his evidence. He said he never heard Anne say the words attributed to her by Annabel, in terms of the asserted promise and denied that such promise was made, but that it was likely that there were many conversations between Anne and Annabel over the years, even going back to 2012 and 2013.
Mark’s evidence was important but not determinative. I must consider his evidence along with all the other evidence.
Anne signed a will on 1 November 2012 (“Anne’s 2012 Will”), then signed another one on 7 March 2013 (“Anne’s 2013 Will”), and then again on 25 October 2024 (“Anne’s 2024 Will”). None of the three wills are consistent with Anne having made the promise as asserted.
In Anne’s 2013 Will, Anne:
Made gifts to both Mark and Tony of sums of money equivalent to that which Warick received from Ian’s estate (thereby compensating them for Ian only leaving his estate to Warick);
Devised shares that she owned in the company Bradford Properties Pty Ltd equally between her three sons; and
Bequeathed the residue of her estate equally between her three sons.
Included in the notes to Anne’s 2013 Will were statements to the effect that:
In making the will, she had taken into consideration the fact that Ian had bequeathed a substantial sum of money to Warick and Warick’s two children;
As a result of court proceedings brought Tony challenging Ian’s estate, Tony had received money from Ian’s estate; and
Expressing her intention that each of her children be treated equally and stating:
“It is my wish that if my son [Warick] can afford to buy each of his brother’s shares in [the Bronte property] from them that he be given first right to buy their share prior to it being sold.
Any renovations done to [the Bronte property] by my son Warick have been paid for by me and whilst the work has been done by my son Warick I have made payment to him and receipts have been issued in respect of the work that he has performed. In addition I have paid for material for the renovation. I consider that when you take into account the work that he has performed on the property and my allowing him to stay in the property rent free whilst I am alive that he has been sufficiently cared for.”
Annabel made a note of her conversation with Mark on 11 September 2024. Mark informed Annabel that Anne had put a holding deposit on an over-55’s residence. Annabel asked what would happen to her. Mark said, “Mum wants to keep her promise to you to buy a place”. Annabel asked, “What does that look like for me and the kids?”. Annabel recorded Mark saying, “You can stay [in the Bronte property] for 8 years until [one of Warick and Annabel’s children] finishes uni”. Annabel asked what would happen to her at that time. Mark said, “we will assess it in 8 yrs”. Mark said they would get a pool in the new house. Annabel said she wanted “the kids to stay in the area”.
Whilst, of course, this was a note made in 2024, long after the asserted promise is said to have been made, it merely records what Annabel was being told by Mark. There is nothing in the note which records Annabel protesting to the effect that she could not be compelled to move out of the house and that the house must be left to her and Warick.
As I have recorded, during a very short space of time, Anne and Ian separated and Ian died. Prior to their separation, Anne and Ian had an interest in, or owned, a number of properties. There was a property at Hendra in Queensland, which Ian received as part of a property settlement in the separation agreement between Ian and Anne. At the time that Ian died, it remained his asset and formed part of his estate in his will.
Ian’s estate went to Warick and Warick’s two children. As part of the property settlement, Anne retained the Bronte property and the Rosebery property. Thus, at the time that the promise asserted by Annabel was alleged to have been made, Anne owned both those properties. Anne also had a half share in the Maroubra property, which was left to her by her father. That property ended up being split between Anne and Tony’s ex-wife’s father, that is, Jodie’s father.
The Rosebery property was sold in 2019 on the advice of Anne’s accountant, to enable her and her three children to set up superannuation funds. It was sold for $9.2 million. Each of her three children, Mark, Tony and Warick, received equal shares and Anne received slightly less. Thus, from 2019, Anne’s only asset was the Bronte property.
According to Mark, most of the money that Anne received from the sale of the Rosebery property is now gone. She paid off the renovations at the Bronte property and as Mark said, she liked to be “generous”, using as an example, “When Annabel asked for tickets to Vietnam, mum gave the money for that”.
I will now consider whether Annable has established that Anne made a clear and unequivocal promise to her prior to 2013.
The promise said to have been made by Anne has two aspects to it, being:
That Annabel could live in the Bronte property (said by Mr Smallbone during the hearing to be “for as long as she likes”); and
That Anne would leave the Bronte property to Anne and Warick in her will (again, said to mean that they would get the whole property on an unencumbered basis, irrespective of any bequest to any other person).
A number of things can be said about this asserted promise, including:
The promise is not said to be severable. Annabel does not seek as a fallback position an order that she merely be allowed to live in the property for as long as she likes, or that, even though she might be required to leave the property, the property must still be bequeathed to her and Warick;
Annabel thus seeks to enforce her entitlement both to remain living at the Bronte property and to enforce a promised testamentary disposition;
The promise is said to have been made during a self-described “family meeting”, as if to imply that the parties considered it to be a meeting of some legal significance. The family got together to discuss what Anne wanted to do with the Bronte property, but I doubt that anyone would have contemplated that the discussion would have the legal significance that is now being attributed to it some 14 years later; and
The asserted promise was made at a time when family circumstances were vastly different to that which exist at the present time. Four things stand out, being:
(a) Anne has got older and wishes to move to a retirement village; (b) The Rosebery property has been sold and each of Mark, Tony and Warick have received a significant benefit from that sale, that is, more than $2 million; (c) Annabel and Warick have separated; and (d) Warick no longer lives at the Bronte property.
None of these matters necessarily impact upon whether there was a clear and unequivocable promise made to Annabel and Warick, but they may be relevant in other respects and form the context in which the current proceedings are being pursued.
In considering whether there was a clear and unequivocable promise made by Anne, it is notable that Anne did not give evidence. There is dispute between the parties as to whether a Jones v Dunkel inference should be drawn: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. I accept that I should draw a Jones v Dunkel inference against Anne. She was in Court and available to give evidence. She had served affidavits. A forensic decision was made at the conclusion of Annabel’s evidence that Anne would not be called. No reason was advanced as to why she was not giving evidence. Having said that, it is important to observe the limits of a Jones v Dunkel inference. I only infer that her evidence would not have made her case any better. I do not infer that it would have made her case worse.
Further, Mark did give evidence and he disputed statements said by Annabel to have been made by Anne in his presence (as I have already mentioned).
The approach of Anne in defence of Annabel’s claim was really to assert that:
There was no clear and unequivocable promise made by her in the terms suggested by Annabel; but
Anne did make statements to the effect that Annabel and Warick could live at the Bronte property (as must be evidenced by the fact that they did), but that Anne’s suggestion, statement or promise that “the property would be yours” (meaning Warick and Annabel) was always subject to there being equality between Mark, Tony and Warick in the division of Anne’s assets upon her death. This is reflected in her wills.
There are of course good reasons why in a case such as this it is necessary that I be satisfied that the promise made by Anne was clear and unequivocal.
Those reasons include that:
The promise involves a promise to make a testamentary disposition which may only come into effect many years after the promise is made when circumstances are vastly different; and
By its very nature, the promise confers a significant financial benefit upon Annabel and Warick and a significant disadvantage or detriment on other family members, who suffer a comparative disadvantage on a long term basis if Annabel is allowed to live in the Bronte property rent-free and they seemingly receive little if the Bronte property is left on an unconditional basis to Warick and Annabel.
In my view, Annabel has not established that Anne made a clear and unequivocal promise in the terms she suggests. I say this for a number of reasons.
Firstly, Annabel seeks to rely on statements made by Anne in a conversation said to have occurred more than 14 years ago in circumstances in which Annabel did not make any note of the statement and where there are no contemporaneous emails, correspondence or other records confirming or even corroborating the promise. The documentary evidence is inconsistent with the idea that Anne would have made such a promise, including Annabel’s own emails and text messages.
Secondly, the discussions were being held in vastly different circumstances to that which Annabel finds herself in at the present time. Annabel may believe that she was going to be taken care of by Anne and that the property would be hers (meaning hers and Warick’s). However, absent any contemporaneous record of the promise in the terms suggested by Annabel or even any statement by Anne in terms of the promise, that is, that Annabel could live in the property as long as she liked, irrespective of Warick’s position, and that Anne would bequeath the property to Warick and Annabel, irrespective of what assets she had for the rest of her life, or whether Mark and Tony got anything at all, I am entirely reliant on Annabel’s recollection of Anne’s statements as to the precise words used and the context in which those words were used.
Annabel is plainly aggrieved and has a view about what should be happening in terms of her own entitlements. She is in the middle of what appear to be acrimonious family law proceedings. Her belief as to what was said may be influenced by these matters, but her recollection is different from that of Mark. It is perhaps not unusual for persons in Annabel’s position to develop a belief about things that happened in the past or things that were said to her. I must be cautious in accepting her evidence as to the promise in circumstances in which her evidence is not corroborated by any contemporaneous record, is otherwise disputed and is somewhat improbable: see Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq). See also Arnautovic v Cvitanovic (2011) 199 FCR 1; [2011] FCA 809 at [73] (Katzmann J).
Thirdly, even the statements cited in Annabel’s affidavits, which form the basis of her case, are not clear and unequivocal, in the sense that they must be considered in context. For example, even Annabel does not refer to any statement made by Anne that she could live in the Bronte property “as long as you like”. It is only necessary to set out in this judgment the two principal statements made by Annabel in her affidavit dated 12 March 2026, as follows:
“105. …
Anne: ‘Why don’t we renovate [the Bronte property] for both of you and the kids. You can build me a granny flat to live in. This house is too big for me. You can have it. It will be yours.’
…
- During the family meeting Mark said words to the effect that:
a. ‘Mum wants to renovate [the Bronte property] for you and the kids to live in.’
And
b. ‘She wants to build a granny flat for herself next door.’
And
‘Mum wants to help you because you are renting and need a bigger home.’
And
c. ‘Warick can do this job.’ He said that Warick had been working for a building company that had built Mark’s house.
And
d. ‘We could save money by Warick doing the job.’ He explained that ‘otherwise we would have to pay a builder much more.’
And
e. ‘Warick will receive a wage of $1,000 a week.’
And
f. ‘We will rent a property for Mum to live in while the work is going on.’
And
g. ‘We have about 800 thousand to a Mill for the renovations.’
- Anne turned to Warick and me and said words to the effect that:
a. ‘This place is too big for me alone and would be perfect for us all.’
And
b. ‘I will live in the flat. You will live in the house, and you will get the house when I die.’
And
c. ‘I want to keep it in the family as I have been here since I was 4.’
And
d. ‘Mark and Tony will get [the Rosebery property] and half of [the Maroubra property].’
The critical words are in par (105), “You can have it. It will be yours”. On Annabel’s case, that is a clear and unequivocal statement that:
Annabel could live in the Bronte property as long as she likes; and
The Bronte property would be bequeathed to Annabel and Warick on an unconditional basis.
Leaving aside the concessions made by Annabel in cross-examination and the effect of Annabel’s own text messages, which cause me to doubt that such statements were made in those precise terms, in my view, that is reading too much into the words Annabel attributes to Anne.
Similarly, again, even if I was to accept that everything that Annabel cites in par (118) of her affidavit was said during the family meeting, those words did not represent the clear and unequivocal promise that Annabel asserts.
Annabel refers to Mark saying that Anne wanted to renovate the Bronte property for Annabel, Warick and the children to live in. There was of course no dispute about that and that is what occurred and indeed that is what Anne continued to offer. Nothing said in par (118) supports the proposition that Anne was saying that Annabel could live in the property as long as she liked and that it would be given to her and Warick unconditionally when Anne died.
As such, Annabel must be relying on par 119 and in particular, the words, “I will live in the flat. You will live in the house, and you will get the house when I die. … I want to keep it in the family as I have been here since I was 4”. Those words, read in isolation, are capable of the meaning Annabel seeks to give to them. However, such a statement, even if made in those precise terms, must be read in context. The context in which those words were used included the later words, “Mark and Tony will get [the Rosebery property] and half of [the Maroubra property]”. Anne’s statement must thus be read in that context.
The statement thus does not represent a clear and unequivocal promise that irrespective of any change in circumstances or, in particular, irrespective of whether Mark and Tony get the Rosebery property and half of the Maroubra property, Warick and Annabel would get all of the Bronte property on an unencumbered and unconditional basis.
Indeed, this is evident from what emerged during cross-examination of Annabel and Annabel’s own affidavit.
In her affidavit of 12 March 2026, Annabel acknowledged that Anne was angry over what Ian had done in his will, being the unequal treatment of Mark, Tony and Warick. Annabel was aware that Anne wanted to make sure that everything was equal in her will. As I have already referred to when summarising the evidence, Annabel agreed in cross-examination at the time she says the promise was made to her and Warick, Annabel understood that she and Warick would be getting the Bronte property, subject to their ability to buy out Mark and Tony, in the sense of making everything equal. Although, she inconsistently also disagreed with this proposition in cross-examination.
Further, Annabel’s own email of 22 July 2013 rather confirms that that was her understanding at the time. Her response to the question in cross-examination that she did not really understand what was being said by her in her own text message cannot be accepted.
Annabel relies on the proposition that the estoppel came into existence in 2012, being the time when she asserts the promise was made. In her written submissions in reply, Annabel seeks to disavow the relevance of anything that occurred thereafter except to the extent that all of her subsequent conduct demonstrates both reliance and detriment.
As submitted by Annabel, if the estoppel arises when the representations were made, that is, prior to 2013, and Annabel has acted in reliance of the representations, then the content of Anne’s wills might be irrelevant in the sense that a will inconsistent with her promise does not detract from Annabel’s case. However, at least Anne’s 2012 Will and Anne’s 2013 Will are relevant in considering the context in which the promise is said to have been made and in circumstances in which there is a dispute as to whether the promise was made. It so happens that Anne’s 2013 Will is consistent with:
The idea that the Bronte property would be left to Warick and Annabel was subject to Warick and Annabel being able to buy out Mark and Tony or there otherwise being equality in the distribution of assets;
That which Annabel refers to in her affidavit evidence, being that Warick and Annabel would get the Bronte property on the basis that Mark and Tony would get the other properties;
The content of Annabel’s own email of 22 July 2013; and
That which Annabel agreed to in cross-examination.
Further, in any event, I do not accept that Anne was making a clear and unequivocal promise to Annabel which was intended to be irrevocable, such that Annabel and Warick would be entitled to enforce the promise:
Irrespective of to whomever Anne bequeathed the Bronte property,
Irrespective of any change in the family’s circumstances or finances, or change in Anne’s own financial position; and
Irrespective of how long Anne might live.
In my view, generalised statements such as “it will be yours”, or “you will get the house when I die”, are insufficient to establish that Anne was making an irrevocable promise to Warick and Annabel in the terms Annabel suggests. I do not consider that even on Annabel’s evidence, Anne’s statements could be viewed as an irrevocable promise to bequeath the Bronte property to Annabel and Warick, irrespective any change in circumstances or when she might die.
Annabel has not established that Anne made the promises in the terms she asserts or with the effect which she asserts.
As I have not accepted that Anne made the clear and unequivocal promise of which Annabel asserts, then the rest of Annabel’s case really falls away. However, I will consider whether Annabel has otherwise established elements of proprietary estoppel.
It is necessary for Annabel to establish that she relied upon the promise by acting or omitting to act in a certain way. As set out in Kramer v Stone, this requires that Annabel show not merely that the promise was one factor which she took into account, but that she would not have acted or omitted to act in the absence of the promise (at [39]). It is also necessary that Annabel demonstrate that she will suffer detriment if the asserted promise is not fulfilled, in the sense that she will be left in a worse position, as a consequence of the reliance upon the promise, than if the promise had not been made (at [40]). Establishing these elements is difficult in circumstances in which there are two aspects to the asserted promise.
In considering the issue of reliance, I accept that Annabel did things in the period 2013-2018 to assist in the completion of the renovations. It seems unlikely that Annabel would have been assisting unless she thought she and Warick were going to live there with the children. It is not difficult in those circumstances to find a relationship between Annabel assisting in getting the place ready for her own occupation and the promise that she could live there.
The question which then arises is whether it is necessary for Annabel to show that she would not have acted in that way in the absence of the promise that she and Warick would receive the property through Anne’s will. Annabel pleads a number of acts of reliance as follows:
Warick supervised and contributed his time, labour and effort to the renovations of the Bronte property;
Warick contributed $300,000 to the funding of the renovations of the Bronte property;
Annabel consented or acquiesced in Warick’s conduct above;
Annabel contributed her time, labour, effort and savings to the renovations of the Bronte property, including procuring her son Alexander to assist with the installation of air conditioning and an acquaintance to assist with work;
Annabel moved into the Bronte property and shared in the family life of Anne;
Annabel endured the gross domestic violence and other behaviours of Warick and looked after his children; and
Annabel forewent her own working career to look after the family and the Bronte Property.
I am unable to accept that these matters taken in isolation or collectively establish that Annabel was acting in reliance of the asserted promise, for the following reasons.
Firstly, Warick was paid for his time, labour and effort in undertaking the renovations. He had only recently obtained his builders’ qualifications.
Secondly, whilst Warick did use some of his inheritance to pay for the renovations this was treated as a loan from Warick to Anne, who then used it to continue to pay Warick for his work. This is supported by Mark’s evidence and indeed the content of Anne’s 2024 Will, which was amended to ensure that Warick was reimbursed in respect of his contribution (in other words, to make all things equal).
Thirdly, whilst I have accepted that Annabel assisted in the renovations in some way, through her time, labour and effort and, indeed, might have spent some money on the renovations, she did so knowing that she would be moving into the Bronte property. At that time, Warick and Annabel were still in a relationship and they were raising their children together. I do not accept that Annabel would not have done what she did unless she understood that:
She could live in the property as long as she likes; and
She and Warick would receive the property on the death of Anne on an unconditional basis.
Nor do I accept that Annabel moved into the property only on the faith of the asserted promise that it would be bequeathed to her and her husband. She was offered a large house in Bronte to live in and raise her children there, rent-free. It is unsurprising that she moved in. She did not move in because of any promise that one day, perhaps many years into the future, it would be bequeathed to her.
Nor do I accept that she stayed with Warick based on the promise that she would be bequeathed the property. This is because I am not satisfied, for the reasons I have explained that but for the promise which Annabel asserts, Annabel would have acted differently in a significant or material way.
Put bluntly, Annabel seeks to assert that all of the major life decisions she has made since 2012 have been in reliance of Anne’s promise to her. That is, staying married, looking after her own children, assisting in the renovation of the Bronte property, assisting Anne from time to time, then living in the large house at Bronte since 2018/2019, have all demonstrated her reliance on the promise. I do not accept this. This smacks of hindsight and an attempt to construct a case out of everything that she has done since 2012.
It is important to observe that this is not a case involving an elderly and infirm person living with a child or daughter in law and being cared for extensively by them in return for some gift. It is apparent from all of the evidence that Anne is a generous person who wanted to give her money to and assist all of her children and their families. Anne did not suggest that she move into a granny flat and that Warick, Annabel and their children move into her house because she was infirm or disabled. She was independent and could and did care for herself, except that as she aged, Annabel might have assisted her from time to time in what may be viewed as the conventional way.
Annabel accepted that she was in a loving relationship with Anne. Leaving aside Annabel’s suggestion that she stayed in a violent and abusive relationship with Warick (the effects of which could not be underestimated), Annabel seeks to turn what might be viewed as a benefit into a detriment. That is, the intention was she would get the benefit of living in a large house in Bronte with Warick and her children. She was not required by any arrangement to do anything to assist Anne and to the extent that she did, she did so because she cared for Anne.
Much of Annabel’s affidavit dated 12 March 2026 is devoted to Warick’s conduct and his treatment of her and their children. Despite its extensive nature, no evidence was called in response. Nothing I say in this judgment should be taken as any criticism of Annabel in terms of what she has done throughout her marriage. It must have taken considerable determination, perseverance and resilience to deal with that which she asserts in that affidavit. However, nowhere does she say in that affidavit that she stayed with Warick despite his behaviour, relying on the promise that she would not only get to live in the Bronte property, but she and Warick would receive it as part of Anne’s will on an unconditional basis, that is, irrespective of how much Mark and Tony got.
Annabel details how she and the children have suffered because of the conduct of Warick during the marriage. It is not necessary that I go into detail in this judgment on the effects and impact on the various family members. She speaks of having guilt for not protecting her children and for staying in an abusive marriage for as long as she did, because she did not know what to do or who to turn to. I have no reason to doubt that, but these are not family law proceedings.
I am unable to accept that Annabel stayed in the marriage in reliance of the promise that she and Warick would be bequeathed the Bronte property in due course. There is no evidence to support that. It might not have happened for many years and seems contrary to Annabel’s evidence as a whole, being that she was always trying to do the best for her children, her husband and, indeed, Anne.
The idea that Annabel was behaving in the way that she did and doing all the things she was doing, both in reliance of the promise she asserts and to her detriment, is somewhat contrary to her own evidence.
I accept that she has suffered during her marriage, but I am unable to accept that she put up with all the suffering because Anne promised that Annabel and Warick would receive the Bronte property when Anne died.
When a proprietary estoppel is prima facie made out, the principle of proportionality operates as a negative restraint such that the (promisee) is entitled to relief which makes good the expectation unless that would be out of all proportion: see Bahnik v Budimir (No 2) [2026] NSWSC 456 at [14] (Richmond J). See also Commonwealth v Verwayen (1990) 170 CLR 394 at 413 (Mason CJ), 443, 445 (Deane J); [1990] HCA 39; Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [42] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Sidhu v Van Dyke at [84]-[85] (French CJ, Kiefel, Bell and Keane JJ); Q v E Co at [127] (Meagher JA).
Anne submits that even if the promise was made, it would not be unconscionable for Anne to resile from her promise, pointing to the changed circumstances between the alleged promise and the present day: Milling v Hardie [2014] NSWCA 163 (“Milling v Hardie”) at [55(2)] (Macfarlan JA, with whom Beazley P and Sackville AJA agreed). That submission was generally adopted by Warick, who also submitted that the evidence in the proceedings (to which I have already referred when dealing with the issues of reliance and detriment) does not establish that Annabel was left in a worse position as a result of her reliance on the promise.
Annabel submits that the onus of establishing that the orders sought by her would be out of proportion with the detriment incurred (that is, that the principle of proportionality is engaged) is borne by Anne. Further, that Anne must demonstrate the relief sought by Annabel would be wholly disproportionate or out of all proportion to the detriment incurred, citing Soulos v Pagones at [407].
Annabel also sought to rely on the observation of Allsop P in Delaforce v Simpson-Cook at [4], that:
“Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief.”
Annabel criticised the approach taken by Anne in closing submissions as confusing the question of detriment with the issue of appropriate remedy. Annabel submitted that the Court should reject a balance-sheet like approach (citing Soulos v Pagones at [389]; Q v E Co at [157]) and stressed that the changed circumstances on which Anne relies are unquantifiable or intangible, such that they do not assist Anne.
In Milling v Hardie at [55], Macfarlan JA[in above at [163]] set out a number of principles which are relevant to the enforcement of a proprietary estoppel, including the issue of proportionality:
“…
(2) To determine whether equitable intervention is required, the court needs to consider whether circumstances have arisen which would render it unconscionable for the defendant to depart from a promise or representation that he or she has made or to disappoint an expectation that has arisen reasonably from the defendant's conduct. The court thus looks backwards rather than forwards (Delaforce v Simpson-Cook at [81]; Waddell v Waddell at [53]). The court may therefore take account of a supervening circumstance, such as a defendant’s unexpected financial reverse, which might justify departure from a promise that has given rise to a proprietary estoppel. On the other hand, in a contract action supervening events would not relieve the defendant of contractual obligations unless those events were catered for in the express or implied terms of the contract or amounted to frustration of the contract.
(3) It follows from these principles that when a proprietary estoppel is sought to be enforced, the court may consider the extent to which the plaintiff’s equity has been diminished by time (Delaforce v Simpson-Cook at [61]). Thus, whilst a plaintiff’s effecting of improvements in reliance upon a defendant’s conduct may be of considerable significance soon after the improvements are made, the passage of time before the estoppel is sought to be enforced may indicate that the plaintiff has had the full benefit of those improvements and that they have effectively been amortised (ibid; Duic v Duic [2013] NSWCA 42 at [32]; Sledmore v Dalby [1996] EWCA Civ 1305; 72 P & CR 196).
(4) The court must look at all the circumstances of the case to determine in what way the plaintiff’s equity may be satisfied (Delaforce v Simpson-Cook at [57]; Giumelli v Giumelli at [49] - [51]; Sullivan v Sullivan at [21] - [22]). This requires consideration of practical matters such as the impact of the court’s orders on third parties (Delaforce v Simpson-Cook at [60]). Nevertheless, the court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged (Sidhu v Van Dyke at [85]; Delaforce v Simpson-Cook at [63]) but relief should not be ‘out of all proportion to the detriment’ suffered by the plaintiff (Van Dyke ibid and Delaforce at [62]).” (citations omitted)
Anne points out that circumstances have changed significantly since the alleged promise was made 14 years ago. Annabel’s children are now adults, except for one who is 15; Warick and Annabel have separated; the Bronte property has been mortgaged and Anne needs to sell the property to pay for her retirement accommodation.
The Rosebery property has been sold and each of Mark, Tony and Warick have already received significant benefits by means of payment of more than $2 million into their superannuation from that sale. Further, the value of the Bronte property is substantial (said to be about $9 million). It is now Anne’s only asset of substance. While she seeks to move to a retirement village, she is not disabled.
The effect of Annabel’s claim is that in addition to any amounts Warick has already received, she and Warick must be bequeathed the whole of the Bronte property on an unconditional basis. Further, she seeks orders that Anne not be permitted to enter the property without permission, sell the property, or do any work on the property. In other words, just as she asserts, Annabel can live in the Bronte property for as long as she likes, being until Anne dies, and then she and Warick will get the property. This will leave:
Anne with insufficient funds to buy a retirement unit or any sort of unit she might require in her later years;
Anne presumably compelled to live in the granny flat of the Bronte property; and
Anne’s other children, Mark and Tony, without any substantial bequest when Anne dies.
This must be viewed as completely disproportionate and unfair to those other family members, including the owner of the property, Anne.
As observed, the court looks backwards rather than forwards*: Milling v Hardie* at [55](2). The court may take account of a supervening circumstance such as the promisor’s unexpected financial reverse, which might justify departure from the promise: Milling v Hardie at [55](2). Further, the court must look at all the circumstances of the case to determine in what way the plaintiff’s equity may be satisfied. This requires consideration of a number of practical matters, including the impact of the court’s orders on third parties: Milling v Hardie at [55](4). Relief should not be out of all proportion to the detriment.
In my view, a consideration of these principles point only in one direction, being that the relief sought by Annabel should be refused. Even if Anne, by the words used in her discussions in 2012 with Annabel and Warick, intended what Annabel asserts, that is, that Warick and Annabel could live in the property as long as they liked and it would be given to them on an unconditional basis after Anne died, it is not unconscionable for Anne to resile from that promise 14 years after it was made. This is because:
Circumstances have changed significantly since the promise was made, including that Warick is not living at the property anymore;
Anne has already disposed of her other assets, at least in part for the benefit of her children, including Warick;
Anne is left without any other assets through which she may fund her own life and accommodation;
Anne has already been generous to Annabel and her family in terms of gifts and not requiring Annabel to pay rent for the accommodation in which she was residing; and
Annabel has already obtained the benefit of whatever work she did in assisting in the renovation of the property, as she has lived in the property for 6-7 years rent-free.
Anne’s disposal of her other assets means that her express desire that each of her children will equally benefit from her will could never be achieved if Annabel and Warick get the Bronte property. Rather, the effect of the orders that Annabel seeks are that she and Warick would benefit from rent-free accommodation for as long as they like or at least until Anne dies, after which time Annabel and Warick would get the whole benefit from the property (which presumably will have to be sold so that the benefit may be shared between the two of them). In other words, Annabel and Warick will receive a bequest of millions of dollars each and Mark and Tony will receive very little.
Further, in assessing the impact on Annabel that any backtracking on the promise might have had on her (if I had accepted it was made), it is only necessary to say that this is not a case in which the promisee, being Annabel, has been treated poorly by the promisor, Anne, since the promise was made. Anne has been generous to Annabel’s family, including Warick and the children. Her suggestion that she would live in a granny flat, whilst Annabel, Warick and the children lived in the main house, was not made out of some desire to put in place a structure which would only benefit her. It was intended to assist Warick and Annabel and their children. Further Anne has demonstrated by continuing to offer accommodation to Annabel, that she wished to do what she could to support Annabel. Annabel has refused such assistance, presumably in the hope of obtaining the orders she seeks in the proceedings.
In saying that Anne has been generous to Annabel, I do not intend in any way to be downplaying or minimising that which has occurred between Warick and Annabel during their marriage. That which occurred and the consequences of that will not doubt be considered in the family law proceedings which are currently on foot.
My task is limited to determining whether Anne should be estopped from obtaining possession of the property which she owns, having regard to all of the facts and circumstances that I have accepted.
In my view, she is not and she is entitled to the order for possession.
Therefore, I make the following orders:
Judgment for the plaintiff for possession of the land in folio identifier [REDACTED] being the land situated at and known as [REDACTED].
The defendant is to pay the plaintiff’s costs.
The cross-claim is dismissed.
The defendant is to pay the cross-defendant’s costs.
I remind the parties that should any party seek a variation of these orders, an application must be made within 14 days.
**********
McFarlane
McFarlane
[2026] NSWSC 456
(2011) 199 FCR 1
(1990) 170 CLR 394
(2010) 78 NSWLR 483
(1999) 196 CLR 101
(1959) 101 CLR 298
(2024) 281 CLR 484
(2014) 251 CLR 505
(2023) 416 ALR 181
(1933) 49 CLR 507
(1988) 164 CLR 387
(1995) 49 NSWLR 315