Moore v Aubusson

Catchwords

[2008] 4 All ER 713 Commonwealth of Australia v Verwayen (1990) 170 CLR 394[2016] HCA 26 Delaforce v Simpson-Cook (2010) 78 NSWLR 483[2010] NSWCA 84 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728[2011] NSWCA 348 Dillwyn v Llewelyn (1862) 4 De GF & J 517 Donis v Donis (2007) 19 VR 577[2007] VSCA 89 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247[2002] HCA 8 Evans v Evans [2011] NSWCA 92 Flinn v Flinn [1999] 3 VR 712[1999] HCA 10 Grant v Roberts [2019] NSWSC 843 Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 at 674[1937] HCA 58 Hawkins v Clayton (1988) 164 CLR 539[1988] HCA 15 Horton v Jones (1935) 53 CLR 475[1936] HCA 41 King v Adams [2016] NSWSC 1798 Legione v Hateley (1983) 152 CLR 406[1983] HCA 11 Lithgow City Council v Jackson (2011) 244 CLR 352[2011] HCA 36 Low v Bouverie [1891] 3 Ch 82 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305 McBride v Sandland (1918) 25 CLR 69[1918] HCA 32 Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500

Judgment (66 paragraphs)

[1]

Background

Briefly, by way of background, the plaintiffs were neighbours of the deceased in Louisa Road, Birchgrove. The plaintiffs acquired their property (No 70) in 1999 (at which time they already owned, and were living in, another house in the street, No 100). Their evidence is that they acquired No 70 (described by them as the worst house in the best street) for the purpose of re-development and sale at a profit. They met the deceased shortly after they acquired No 100 and before they moved into No 70 but, as I understand their evidence, the plaintiffs developed a close relationship only in 2001 after they had moved into No 70 (see, for example, T 132).
Prior to her death in 2015, the deceased was (and had been for some time) the registered proprietor of two adjoining properties in Louisa Road, Birchgrove (No 66 and No 68). Those properties comprise the bulk (but by no means all) of the deceased's not insubstantial estate. Each of the deceased's two properties comprise two units. The deceased occupied the upstairs unit at No 68, and rented out the remaining three units.
The three relevant properties (i.e., No's 66-70) extend down to Sydney Harbour. Relevantly, the deceased's upstairs unit at No 68 has views of Sydney Harbour, which views (on the evidence before me) the deceased was keen to retain. I did not accede to an application during the course of the hearing for a view of the properties in order to see that water view for myself - not least because of what I perceived would be the difficulties in conducting a physical view during the course of what was a virtual hearing in the midst of the current COVID-19 pandemic (see T 249) (and it was not suggested that judicial notice could not be taken of the generally perceived advantage, at least in the context of the real estate market, of Sydney Harbour water views).
As adverted to above, the plaintiffs moved into No 70 in about 2001. Their evidence is that the proposed redevelopment that they had in contemplation in relation to No 70 included an extension to the rear of No 70 similar to extensions that had been, or were then, being undertaken by the owners of another property in the street (No 72). The plaintiffs' evidence is that the deceased had expressed to them her unhappiness with the works carried out to No 72 (and indeed it appears that the deceased had not only lodged objections to those works with the Leichhardt Council (now the Inner West Council) (the Council) but had been ordered off the site after attempting to enter the site to check its compliance with the approved plans herself), and that the deceased had voiced her concerns to the plaintiffs about their own foreshadowed works (in particular, that she did not want her property's views to be built out).
The plaintiffs say, in essence, that the deceased promised to leave them her whole estate in return for them looking after her for the rest of her life and for them agreeing not to undertake their desired building works to the extent that those works would impede the view from the deceased's property. I refer in due course to how that alleged agreement was pleaded in the various iterations of the statement of claim and to the evidence in relation to those alleged testamentary promises. Suffice it for present purposes to note that the plaintiffs say that they performed their side of the agreement but that the deceased did not leave her estate to the plaintiffs under her Will; and that what they are seeking here to enforce is a trust of the kind recognised by Handley AJA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) (at [31]). His Honour there said that: 31. Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime, but is subject to the claims of creditors if the estate is insolvent. [Citations omitted].
The plaintiffs say that testamentary promises of the kind here alleged to have been made to them are not revocable if there is (as they say is here the case) a testamentary contract (or otherwise where there is established an estoppel by encouragement based on testamentary promises - referring to Flinn v Flinn [1999] 3 VR 712 (Flinn v Flinn) at 736, per Brooking JA, Charles and Batt JJA agreeing; [1999] VSCA 134; and Blacket v Barnett [2017] NSWSC 1032 at [274], per Hallen J, to which I will return in due course). The plaintiffs also say that even a "rather vague" promise of future reward can be sufficiently certain to be enforceable, particularly where significant steps have been taken under the agreement (referring to O'Sullivan v National Trustees Executors & Agency Co of Aust Ltd [1913] VLR 173; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 (Palmer v Bank of New South Wales [1973]), affirmed on other grounds by the High Court in Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51); and Wakeling v Ripley (1951) 51 SR (NSW) 183 (Wakeling v Ripley)).
Alternatively, the plaintiffs contend that the deceased, and her executor, are estopped from acting contrary to the promises of a testamentary character that she made to them (citing Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58], per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ); Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli v Giumelli) at [3]-[6], per Gleeson CJ, McHugh, Gummow and Callinan JJ); and Pascoe v Turner [1979] 2 All ER 945; 1 WLR 431 (Pascoe v Turner) at 439). They say that the promises made by the deceased in the present case are not uncertain; and they say that a less demanding standard applies where an estoppel is concerned as opposed to a claim in contract (citing Varma v Varma [2010] NSWSC 786 at [437]ff).
As to the question of relief, the plaintiffs say that the starting point for the measure of equitable relief in the present circumstances is the proposition that, where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary is usually that which reflects the value of the promise (citing Sidhu v Van Dyke). The plaintiffs point to what was said in that regard in Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley [2017]) by Emmett AJA (with whom McColl and Macfarlan JJA agreed) (at [160]; [164]), namely, that: 160. There may be circumstances in which the potential damage to an allegedly estopped party is disproportionately greater than any detriment that would be sustained by the other party, to the extent that good conscience could not reasonably be seen to be precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party. If a person is induced to make a relatively small, readily quantifiable monetary outlay on the faith of another person's assurances, it might not be unconscionable for the second person to resile from her or his assurances to the first person on condition that she or he reimburse the first person for the relevant outlay. However, where the detriment suffered is of a kind and extent that involves life changing decisions and irreversible consequences of a profoundly personal nature, beyond the measure of money, it may be that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the promisee's actions were based. … 164. The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation. The detriment or harm required to ground an estoppel can be any material disadvantage, so long as it is substantial. It need not be quantifiable in the same way as an order for damages. Detriment is not a narrow or technical concept and need not be a quantifiable financial detriment so long as it is something substantial. The evaluation of the substantiality of the detriment must be approached as part of a broad inquiry as to whether repudiation of a promise or representation is or is not unconscionable in all the circumstances. [Citations omitted]
The plaintiffs say that it is for the defendant to demonstrate that the claimed relief is disproportionate to the expectation which has been encouraged (referring to Delaforce at [62]-[69], per Handley AJA). They maintain that, in the present case, the subject matter of the deceased's promise was, principally, the deceased's two properties, and that the prima facie measure for relief is the transfer of those properties (and the balance of the deceased's estate) to the plaintiffs. (Pausing here, I consider there is a significant distinction here between the two properties and the estate as a whole - the Grant of Probate sealed on 26 March 2015 lists the value of the two properties as $9 million, and lists the value of the whole of the estate as $11,732,923.88.) It is noted that damages are not normally an adequate remedy where real property is concerned; a fortiori, it is said, where (as here) what is at stake is ownership of adjoining properties which are of value to the plaintiffs precisely because of their proximity (referring to Mr Moore's affidavit sworn on 6 September 2018 at [18], in support of his earlier claim for the extension of a caveat over the properties, albeit not read in the substantive hearing, and see oral closing submissions at T 572 in a similar vein).
As indicated above, the sole remaining defendant in the proceedings is the surviving executor of the deceased's estate. The deceased's former solicitor (who drafted her Will; and who was a co-executor and initially a defendant in the proceedings), Mr Neville Grace, has now also died (though not before he had deposed to his account of various disputed events in relation to this matter - see his affidavit sworn 21 March 2017), and his estate has been removed as a party to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
At the outset, the defendant emphasises that the claims against the deceased's estate are founded on alleged oral representations of the deceased, which only the deceased could have denied. (That, of course, is not uncommon where testamentary promises are concerned.) It is noted that the representations are claimed to have been made in 2004, or (more recently) in 2006; that there are no independent witnesses to the crucial representations; and no written corroboration of them. It is said that evidence of subsequent events is inconsistent with the claimed representations.
The defendant says that the element of reconstruction based solely on the plaintiffs' claimed memory of events and the self-interest of the plaintiffs calls for close scrutiny of the plaintiffs' evidence. The defendant emphasises that the earliest of the plaintiffs' affidavits were prepared over twelve years after the claimed representations.
It is noted that at the date of the deceased's death the two properties at No 66 and No 68 were estimated to have a combined value of $9 million. These properties comprised the bulk of her estate. The defendant accepts that Ms Marion Forsyth, a beneficiary under the deceased's Will (who has now died), gave evidence (on commission) to the effect that the deceased told Marion that the deceased was disposed to leave her estate to the plaintiffs; and that a number of friends and acquaintances of the plaintiffs have given similar evidence to the effect of Marion's (i.e., that the deceased made statements to the effect that she was disposed to make a Will in favour of the plaintiffs); but the defendant says that none of that evidence is to the effect that the deceased had made such a Will, or that she had taken any steps to make such a Will. It is said that, in the main, this evidence is imprecise as to the dates and context of the social occasions on which the statements are said to have been made.
The defendant accepts that Marion's evidence (which is consistent with some of the plaintiffs' witnesses and comes from a family source closer to the deceased than the plaintiffs' witnesses) may provide a more compelling basis for the acceptance of evidence to similar effect given by the plaintiffs' witnesses. However, it is said that, given the generality, imprecision and incompleteness of Marion's evidence, it does not lend any greater persuasion to the question whether the deceased should be held to have necessarily bound herself immediately, prospectively and irrevocably to any legal obligation.
Finally, by way of introduction, I understand that there have been two applications by the executor(s) for judicial advice, the first heard by Lindsay J in 2016 and the second by Rees J at the beginning of 2019. Quite properly, none of that material was before me on the final hearing. I simply note that this may be relevant if there is, as was foreshadowed, ultimately a dispute as to the executor's right to be indemnified from the estate for the costs of these proceedings.

[2]

Chronology

The background to the dispute has been set out briefly above. However, some further elaboration in terms of a more detailed chronology of events is necessary.

[3]

Acquisition of No 70 and initial plans for renovation of No 70

In 1999, as already noted, the plaintiffs purchased the property at No 70 (for the sum of $1.3 million). They were then living at No 100, which was, as I understand the evidence, in a better condition than the property at No 70 (the latter being described by one of the witnesses as "charmless" - T 165.24). In 2001, the plaintiffs moved from No 100 to live in No 70 (next door to the deceased, who was then living in the upper storey apartment in No 68).
In 2002, No 100 was sold (for a profit of around $1.14 million). Those funds (which would have been available for use had the renovation of No 70 proceeded at that stage) were used mainly to retire debt, according to Mr Moore (see T 36.45).
Mr Moore deposes that, in about 2002, he prepared and submitted to the Council a development application and a strata subdivision plan to subdivide No 70 into two units and conduct renovations and extensions (see [42] of his affidavit sworn 21 March 2016). That application was lodged on 24 May 2002. Mr Moore's evidence is that those plans were seeking to maximise the floor area (and subsequently, the property's re-sale value), and were for the extension of both units to the maximum allowable by the Council. Mr Moore says that this proposed development was the subject of plans that the previous owner had submitted. (Those, as I understand it, were plans that had been prepared by Bonus Architects in relation to the extension of No 70 and No 72 when both properties were owned by the same person. These plans were referred to during the course of the hearing as the Bonus Plans.)
On 21 August 2002, the Council sent a letter seeking further information in relation to the development application. Mr Moore says that he then instructed an architect to prepare plans specific to No 70 which included an extension to the rear of No 70 (see [11] of his affidavit sworn 17 April 2018).
Mr Moore deposes that he and Ms Andreasen told the deceased what they had planned in relation to the extensions and renovations; and that the deceased said she did not want them to do what had been done at No 72, and that she had lost too much of her water view already (see Mr Moore's affidavit sworn 21 March 2016 at [44]).
The deceased's second husband, Gerald, died in December 2002. The deceased had no children and no immediate family in Sydney. The deceased had two siblings (Ms Marion Forsyth, who is now deceased, and Mr Don Lack, also known as Fred, who is also now deceased). Both the deceased's siblings lived on the far north coast of New South Wales (Marion in Tweed Heads, and Don in Ballina). The plaintiffs' evidence is that the deceased stated to them more than once that she did not wish to enter into a nursing home, and that she wanted to live out her last years at her long-standing home (namely, at No 68). There was evidence that at one stage the deceased had contemplated moving to the north coast to live with, or near to, her siblings, but it is evident that the deceased decided not to do so (see, for example, Ms Andreasen's affidavit sworn 21 March 2016 at [19]-[21]).

[4]

Alleged agreement

In his affidavit sworn 21 March 2016 (at [48]), Mr Moore deposes to a conversation with the deceased (which he first placed as occurring in early 2005, but which he corrected - with a number of consequential amendments, at the commencement of the giving of his evidence at the hearing, to occurring at some time in late 2004), in which he says that the deceased said, among other things: David, you know that my solicitor told me quite a while ago that I have to update my Will? I have talked to my brother and sister about it. You and Dee have been so good to me. I know I can trust you to look after me. I want you and Dee to help me to stay living here. Will you help me to do that as I get older? I know Dee and you have been looking after things for Dee's mother and having her cared for at home all these years. I want you and Dee to do the same thing for me if I need it in the future. I will see to it that in my will, everything goes to you and Dee when I am gone. and that the deceased also said that: …I would want you to let me keep my view when you do your renovation. Would you do that? You can do whatever you want with the places when I'm gone.
Mr Moore deposes that he told the deceased that this would "really change" all of their plans and that he would talk to Ms Andreasen about it, and they would discuss it and think through it. He then deposes that, after "fully discussing" everything with Ms Andreasen, a couple of days later he went to see the deceased in her unit and they had a conversation in which he said to the deceased (at [50] of his affidavit sworn 21 March 2016): Dee and I have talked it through, and we have made a decision. We will continue to help and support you living here at home and we promise to make sure you are okay and that you are looked after as you get older. We are sure that we can figure out a way that we can renovate without building out your view. Then if you leave everything to us in your will, we are very happy with that. Dee will also speak to you about it herself. and that the deceased responded that: I am so happy that you have agreed to this. I know I can trust you both. This has taken a load off my mind. It's a good idea if your kids knew about this too. Will you tell them about it?
Mr Moore says that after this "agreement" was reached, the deceased and the plaintiffs spoke several times, and that the deceased said that she was happy "we have made this arrangement", and that she felt more settled and could relax.

[5]

Revised renovation plans for No 70

In early 2005, revised extension plans were drawn up (see Mr Moore's affidavit sworn 17 April 2018 at [15]). The plaintiffs say that this was to accommodate the deceased's concerns about the proposed redevelopment of No 70. Mr Moore says that he showed the deceased the reduced extension plans, marked up to demonstrate the diminished aspect of the reduced extension (and that the deceased supported the application) (see T 52).
Mr Moore deposes that in March to April 2005, after many conversations and taking into account the deceased's wishes about retaining her water view, the amended plans were prepared for the extension to No 70. Mr Moore says that he was trying to minimise the loss of the deceased's water view, but that this reduced the available living space for the proposed first level apartment and that, to accommodate this, he designed the extra space on the level in the roof space, which required an alteration to the roofline (see at [55] of his affidavit sworn 21 March 2016).
In May 2005, the amended plans were submitted to the Council. Mr Moore deposes that the Council rejected the plans partly on the grounds of the change to the roofline (at [55] of his affidavit sworn 21 March 2016). However, as Mr Moore was taken to in cross-examination, the preliminary assessment advice from the Council in July 2005 identified a number of problems with the proposed plans, not just the amended roofline (T 48.38ff). The Council's view seems to have been that a more reasonable form of development in keeping with the amenity of the neighbourhood would be one compatible in form and scale with that which had been approved in relation to No 72 (that being the extension to which the deceased had so vehemently objected).
On 29 August 2005, the Council made the decision to reject the amended plans (including, but not solely, on the basis that Council would not permit changes to the roofline) (see the Council's letter dated 30 August 2005). Mr Moore deposes that he and Ms Andreasen then put the extension and renovation of No 70 "on hold" in late 2005 while they considered what to do; and that subsequently he became reconciled to the realisation that they would not be able to do the extensions to No 70 and sell it as originally planned, and at the same time be able to provide "the support and consideration" that they had promised to the deceased (see at [55] of his affidavit sworn 21 March 2016). He deposes that he and Ms Andreasen decided that they would continue in the role they had promised to the deceased, and that they continued living at No 70 "on the basis that any loss in capital growth would be compensated eventually from [the deceased's] estate" (see at [55] of his affidavit sworn 21 March 2016). In cross-examination, Mr Moore said he thought he would have told the deceased that the plans had been rejected, but he accepted that he had not told the deceased at any time of the decision not to proceed with the renovation at all or that he had suffered by reason of not carrying out the renovation (see at T 116-118). (That is, of course, relevant to the deceased's knowledge of any alleged detrimental reliance on her testamentary promises at least in relation to the decision not to pursue the proposed redevelopment of No 70.)

[6]

Events from 2005

The plaintiffs each gave evidence as to the role they took on to support the deceased from 2005 onwards. (A schedule of the services the plaintiffs say they provided to the deceased was included as an addendum to their written closing submissions and is appended at the end of these reasons. It is fair to say that the schedule is drafted in fairly broad terms.)
In about mid-2006, Ms Andreasen's daughter (Maia) and her now estranged husband (Mr Juan Renshaw) moved into the upstairs level at No 70 with their young daughter. The entry door for that level shared a landing with the deceased's front door. Maia and her family lived at No 70 until about 2007. Both Maia and Mr Renshaw gave evidence as to various discussions with the deceased about the arrangement between the deceased and the plaintiffs, to which I will refer in due course.
Mr Moore deposes that the deceased continued in good health until around 2011 when her eyesight started to deteriorate noticeably; and that, from about 2009 onwards, he accompanied the deceased to many appointments with an ophthalmologist (usually Dr Horowitz) at the Sydney Eye Hospital; and then in about September 2012 to a private ophthalmologist (Dr Harrisberg) at Newtown; and in March 2013 to a Dr Con Moshegov for eye surgery (see his affidavit sworn 21 March 2016 at [66]ff).
In mid-2012, the deceased and Mr Moore went to visit the deceased's solicitor (the late Mr Neville Grace). According to Ms Andreasen, this was to discuss the drafting of a power of attorney and enduring guardianship document in favour of Mr Moore (see her affidavit sworn 11 May 2018 at [14(b)]). However, it does not appear that any such documentation was prepared or executed at that stage, nor does there seem to have been any file note made by Mr Grace of any such discussion. Ms Andreasen's evidence is that the deceased said to her that she wanted Mr Grace to meet Mr Moore so that Mr Grace knew him and could talk to Mr Moore about her affairs (see at [14] of her affidavit sworn 11 May 2018). I interpose to observe that this would be consistent with Mr Moore taking on a primary role in assisting the deceased but there is no file note of Mr Grace to corroborate such a visit (and on one view it is inconsistent with the plaintiffs' evidence as to the deceased's distrust of lawyers and unwillingness to incur legal fees). Ms Andreasen also deposes to conversations during the period from mid-2012 to 16 January 2014 with Mr Grace, in one of which she deposes that Mr Grace said to her and Mr Moore that if the deceased did not appoint an attorney and guardian her affairs would be placed under the control of the Public Trustee and Guardian (now the NSW Trustee and Guardian), and that this "would be most unwise" (see her affidavit sworn 11 May 2018 at [14]). (As adverted to, Mr Grace, in his affidavit sworn 27 March 2017, made before he died, denies a number of the conversations attributed to him by the plaintiffs.)

[7]

Meeting on 16 January 2014

The plaintiffs drove the deceased to Mr Grace's office on 16 January 2014. It is not disputed that only Mr Moore accompanied the deceased into the meeting with Mr Grace. The dispute is as to whether he remained in the room when Mr Grace took instructions from the deceased as to her Will; who else was there; and where the meeting actually took place (i.e., in Mr Grace's office or in a small meeting room at the firm).

[8]

Mr Moore's version

According to Mr Moore, the enduring guardian document was discussed first; Mr Grace asked the deceased if she wanted Mr Moore to be her guardian; the deceased responded that she did; and he (Mr Moore) asked that the deceased agree to him sharing that role with Mr Grace, to which the deceased agreed. Mr Moore says that the enduring guardianship document was "sent away" for drafting.
A document appointing Mr Moore and Mr Grace jointly as the deceased's enduring guardian was in due course executed by the deceased (which document was witnessed by Mr Aubusson, and by a legal secretary in Mr Grace's office).
Meanwhile, Mr Moore says that next, after the enduring guardianship document had been sent away for drafting and before its execution, Mr Grace "unexpectedly" produced another document, placed it on the table in front of the deceased and told the deceased that she had to update her Will; that her Will was forty years out of date and nominated her late husband as executor; and that she had to write a new Will. Mr Moore says that Mr Grace asked the deceased who she wanted to be her executor and that she replied "David". Mr Moore says that he (Mr Moore) asked if the deceased would agree to Mr Grace being her executor; and she did. Mr Moore deposes that Mr Grace then said to the deceased: In your Will, if your brother and sister die before you do, all your estate will go to the State Government. Is that what you want? Do you want your estate to go to the State Government?
To that, Mr Moore says that the deceased said "[t]hat's no good" and that, when asked who she wanted put there instead of the State Government, the deceased turned to Mr Moore and said: "I always thought it would go to you David, and down through your family". Mr Moore says that Mr Grace responded by suggesting that the deceased leave her estate to charity rather than the State Government, and suggested St Vincent's Hospital. Mr Moore gives evidence that he then suggested to the deceased that half go to the Royal Prince Alfred Hospital, which was where she was being treated.
The Will was prepared, and there is no dispute that the deceased signed the Will prepared by Mr Grace on that occasion. Execution of the Will was witnessed by Mr James Creech (a senior partner in Church & Grace) and Ms Jessica Macdonald (a legal secretary). Mr Moore deposes that Mr Grace briefly verbally summarised the Will to the deceased, but that neither the deceased nor he read any part of the Will before it was signed. On Mr Moore's account, therefore, he was aware of at least the summary of the Will's contents at that meeting.

[9]

Mr Grace's version

As adverted to above, there is much dispute as to what occurred during the attendance on Mr Grace on 16 January 2014. As noted above, Mr Moore deposes that the deceased told Mr Grace that she wanted her estate to go to him (Mr Moore) and down through him to his family (and he says that present during those instructions were several lawyers and office staff from Mr Grace's office). Mr Grace (who, again, I note is now deceased) swore an affidavit in these proceedings in which he gave a very different account of his instructions and, in particular, deposed that Mr Moore was not present in the room when he took instructions from the deceased in relation to her Will. Each of Mr Aubusson and Mr Creech was cross-examined as to the events that occurred when they witnessed the execution of the respective documents; as were the office staff members who also witnessed the execution of one or other of the documents (see below).
In his affidavit sworn 21 March 2017, Mr Grace deposed to his standard and invariable practice in relation to the taking of instructions from a client for the preparation of a Will or codicil, including that (at [7]): he did not take instructions in the presence of another person except a Church & Grace partner or employee, or possibly a spouse where the persons wished to have mirror Wills; that he explained to the client the effect of the Will before it was executed, including a précis of certain matters, but not necessarily reading the whole document out to the client; that he explained the effect of a codicil; that he did not tell or purport to tell a client what the client must do (or coerce a client into acting in any particular way); that where a client had executed a document appointing a guardian, that he offered certified copies to the appointee (if present) or (if not present) posted the certified copies to the appointee; that before the client's death he did not discuss the contents of a testamentary document executed by the client with anyone except the client (other than in some circumstances another partner or employee of the firm or another person with whom the client had authorised him to discuss those contents); and that after the death of a client he did not discuss the contents of a Will or codicil with any person other than the executors, a beneficiary (but only as to that beneficiary's entitlement), or on some occasions a partner or employee of the firm or, if he was the executor, a person who he considered it appropriate to discuss such matters with in the due administration of the estate. Mr Grace deposed that he did not express to persons interested in the Will of a deceased client views about whether the deceased acted prudently or otherwise in making a Will in the terms of that client's last Will. Mr Grace also deposed to the practices that he commonly, and particularly with elderly clients, adopted (at [8]).

[10]

Mr Aubusson's version

Mr Aubusson gave evidence (and was cross-examined) as to his role as witness to the execution of the enduring guardianship document. He said his total involvement in the events of 16 January 2014 was as set out in his affidavit sworn 24 March 2017 (which is limited to confirming his signature on the Appointment of Guardian document, but otherwise deposes to not actually recalling the witnessing of that document specifically). In cross-examination, there was the following exchange (at T 423.13ff): Q. Do you say you have no recollection whatsoever about this meeting on 16 January 2014? A. I have little recollection of the meeting on 16 January. My, my recollection is that Mr Grace asked me if I would come into the Church & Grace small meeting room. I remember a frail lady sitting at the end of the table and I've subsequently - and I, I, I recall that I was slightly put out about that because I was in the middle of doing some quite - I was busy doing other things. I've now - I've, I've seen since that I witnessed the guardianship document. That is a routine thing that I have done many times so it, it, it's something that really wasn't in the forefront of my memory and that, that is my recollection and then I was, I was there for probably less than five minutes and, and left. Q. Mr Moore was present on that occasion, was he not? A. He was because I witnessed his signature. Q. Was he present when you came into the room? A. Yes. Q. And was he present when you left the room? A. Yes
Mr Aubusson denied Mr Creech and Ms MacDonald were present when he signed the enduring guardianship document. He denied that there was a discussion about the deceased's Will on this occasion; denied that there was some discussion about a power of attorney potentially being executed; and did not recall that the deceased said that she was tired and wanted to go home. He was adamant that the only meeting he attended was the meeting to which he had deposed in this affidavit, which was five minutes long and required him to witness an enduring guardianship document (T 424.41ff).

[11]

Mr Creech's version

Mr Creech in his affidavit (sworn 24 March 2017) sets out his recollection of the events and of the practices that he said were invariably followed when executing those particular documents. He said that he had a clear recollection of witnessing the execution of the documents in this case (T 400).
Mr Creech's evidence was that it was not the normal course for documents to be executed in Mr Grace's office; the 16 January 2014 occasion was the first occasion that Mr Creech could recall of having a testamentary document signed in Mr Grace's office; and he denied that it was reasonably common for that to occur (T 401).
Mr Creech was adamant in his denial that he had attended a meeting in January 2014 with Mr Moore, or that he had been present at any discussion about an enduring guardianship (T 408).
As to the circumstances on 16 January 2014 in relation to his witnessing the Will, there was the following evidence (at T 409.4ff). Q. Can I suggest to you that in your presence Mr Grace asked Mrs Murphy with Mr Moore present about the terms of the will? A. No. I was never at any such meeting and I'm not aware of any such meeting. Q. Mr Moore said to Mr Grace, "I've always thought it, the estate, would go to you, David, and down through your family." A. As I said, I am not aware of any such meeting. Q. What's your recollection, please, of the meeting that you attended on 16 January 2014? And could you humour me by closing up your affidavit for the moment? I'm obliged. What's your recollection? A. That particular - or it wasn't a meeting as such. I was requested or asked to come and witness the signing of the will along with the secretary from our office. … Q. … I'm simply asking for your recollection. I'm asking you some questions about the meeting on 16 January 2014. Was that meeting in the boardroom or in Mr Grace's office or somewhere else? A. I think it was in the small meeting room. … Q. Where was Mr Grace sitting? A. He was sitting, as you walked in the door, he was sitting in the first seat facing across the table. Q. Was it the left-hand side or the right-hand side? A. Left-hand side as you walked in the door. Q. Where was Mrs Murphy? A. She was sitting directly opposite him Q. What happened when you entered the room? A. When we entered the room, Mr Grace said that Mrs Murphy was now going to sign her will. Q. What happened after that? A. Mr Grace would have said to Mrs Murphy, he normally gave a very small precis of what was in the will and he would then say, "Mrs Murphy is now going to sign her will." We would, we would have been introduced to her, you know, as we walked in. It was Mr Grace's practice to do that, "This is Mr Creech from the office, this is Jessica, our secretary." And then we were asked to, Mrs Murphy then signed her will and we witnessed the signing of her will.

[12]

Ms MacDonald's version

Ms MacDonald was the other witness to the Will. Ms MacDonald was working at the time as a legal secretary and paralegal at Church & Grace. In her affidavit sworn 17 March 2017, Ms MacDonald said that she would witness the execution of documents about 10 to 20 times a year, including Wills. She said Mr Grace was in charge of the probate practice at the firm at the time, and that she would frequently witness Wills for Mr Grace (T 394). Her recollection is that some of these wills were executed in Mr Grace's office but some also were executed in the meeting rooms; she said that "it just depended" (T 394.40). She recalled Mr Creech sometimes witnessing Wills with her but she could not recall specifically recall if this was in Mr Grace's office.
Ms MacDonald could not recall on this occasion where the deceased's Will was executed, or (other than by reference to the document) who was present. She knew nothing about the circumstances in which the deceased's Will was prepared. She said it was possible that sometimes family members would be present but that, generally speaking, if that occurred it would have been a spouse, but that such an occurrence was only the odd occasion; and again that it would have been an odd occasion if there would have been a family member other than a spouse present (T 396).

[13]

Admission to hospital

Returning then to the overall chronology of events, on the day after the appointment with Mr Grace (i.e., on 17 January 2014), the deceased was admitted to Royal Prince Alfred Hospital. The clinical notes of Balmain Hospital Emergency Department (which is where Mr Moore took the deceased before she was transferred to Royal Prince Alfred Hospital) referred to the deceased's "cognitive decline", and to her "gradual deterioration in function, cachectic, and dehydrated", and to her inability to care for herself at home (see Ex L).

[14]

Power of Attorney

On 20 January 2014, the deceased was transferred back to Balmain Hospital. On 22 January 2014, Mr Grace attended at Balmain Hospital (with Mr Creech) and the deceased executed a Power of Attorney that Mr Grace had prepared (at Mr Moore's request) in favour of Mr Moore and Mr Grace.
Mr Grace deposed to the circumstances in which he subsequently prepared the Power of Attorney as follows (at [25] of his affidavit sworn 21 March 2017): 25. About a week after Barbara had made her Will, I received a telephone call from a male person who identified himself as Mr Moore. After pleasantries, words to the following effect were spoken: Mr Moore: Barbara is in Balmain Hospital. She wants to appoint attorneys to look after her affairs. She would like to appoint me. Would you also act as an attorney with me? Me: Powers of attorney may appoint attorneys to act jointly (where all must agree and sign) or severally where anyone attorney may act and sign. I would be happy to act as one of the attorneys, so that either you or I can act separately and not jointly. That will be similar to the guardianship appointment. Mr Moore: That will be acceptable. Me: I shall be out at about 11 o'clock. 26. As Barbara was a long standing client and was in hospital, I re-arranged my morning, immediately prepared a form of enduring power of attorney and, with James Creech (a partner of Church & Grace), attended upon Barbara at the Balmain Cottage Hospital. The following occurred at the hospital: (a) Upon our arrival at the hospital, Barbara was sitting in a common room area where there was a TV. (b) Barbara and we moved to a veranda area, where there was a table and more privacy. (c) Then I showed Barbara the enduring power of attorney document which I had prepared. I then said to Barbara words to the effect of those set out below. I took the initiative in explaining the effect of the document to Barbara as she was my client and as I had prepared the document. This is what is called an enduring power of attorney. By signing you are authorising each of Mr Moore and myself to be your attorneys to manage all of your property and financial affairs on your behalf. The attorneys are required to act in your best interests. If they do not do so, there are legal remedies available. This power of attorney will remain valid even in the event of your becoming physically or mentally ill, but you can revoke it before those events may occur. (d) Mr Creech then exchanged words with Barbara. I do not presently recall the words which were spoken or their substance. The exchange was the sort of exchange which I would have expected to have been initiated by a solicitor who was proposing to give a certificate under section 19 of the Powers of Attorney Act 2003. (e) I do not presently recall whether I asked Barbara to practice [sic] her signature before she signed the power of attorney. (f) The document was executed by Barbara.

[15]

Subsequent events

As adverted to, Mr Creech accompanied Mr Grace to the hospital for the execution of the Power of Attorney. The document had already been prepared at that stage. He said that he explained to the deceased what the document was (at [18] of his affidavit sworn 24 March 2017). By 2014, Mr Creech was a senior partner of the firm. He assumed that he had been asked to attend in order to be able to make the declaration that the deceased understood what she was signing and to certify she signed of her own free will (T 403).
Mr Creech was questioned as to the Law Society guidelines (issued in December 2003) for solicitors preparing an enduring power of attorney (T 403.27ff). Mr Creech said that he was not aware of the obtaining of a doctor's advice. As to the choice of attorney, Mr Creech said that he would not have had any hesitation about Mr Grace's appointment; but he could not form an opinion about Mr Moore as he did not know him. He said that he understood that he was a next door neighbor and that he may have been providing some assistance to the deceased (T 404). He thought Mr Moore was in the room when it was signed. Later he said that he had not met Mr Moore beforehand. Mr Creech said he did not discuss with the deceased the appropriateness of Mr Moore as a donee of the Power of Attorney (but that he would have taken a file note if he thought there was a problem on the day and he had not done so) (T 406).

[16]

Discharge from hospital

The deceased was discharged from Balmain Hospital on 24 February 2014. In preparation for the deceased's return home, others of the deceased's neighbours (principally, Mr Kevin Condon, who rented the apartment below that of the deceased, but also his then wife, Ms Lesley Manuel-Condon, and another neighbour, Ms Aanya Roennfeldt-Bongers) spent some time cleaning the deceased's apartment (which, in his affidavit sworn 7 March 2018, Mr Condon has deposed was in a neglected state). From that time, there was full time in-home care for the deceased (arranged by the plaintiffs but funded by the deceased). The two carers gave evidence in the proceedings, to which I will refer in due course.
In early March 2014, just after the deceased returned home from hospital, the deceased's sister, Marion, visited her. Pausing here, I note that there was some contention in the hearing as to the level of contact between the deceased and her siblings over the years (and criticism made by the plaintiffs insofar as they had attempted to paint the deceased's sibling as uncaring). Suffice it here simply to note that the deceased's social history as recorded in various of the medical notes (and I accept the caution with which such notes should be treated - see at [223] below) suggests that in the deceased's final years there was not regular contact between the siblings, and that the deceased's main "carer" or point of contact for the deceased's treating doctors was Mr Moore.
The plaintiffs depose that in March 2014 (and between then and July 2014) they had conversations with the deceased in which the deceased reiterated that she wanted her estate to go to the plaintiffs and that her Will must be fixed (see Mr Moore's affidavit sworn 21 March 2016 at [217]). Mr Moore deposes to a conversation with Mr Grace in about March 2014 about organising a further meeting to have the deceased's Will changed (see at [218] of that affidavit). (There is again a dispute as to what was said in that conversation.)

[17]

Codicil of 31 July 2014

On 31 July 2014, the plaintiffs took the deceased to see Mr Grace. Mr Moore says that he made the appointment with Mr Grace and that he and Ms Andreasen had decided to make the appointment for the deceased to rewrite her Will. Mr Moore accepts that on that occasion he was asked by Mr Grace to step outside his office while the instructions were taken in relation to the Will (consistent, I would interpose to note, with Mr Grace's stated "standard and invariable" practice - see at [249] of his affidavit sworn 21 March 2016). Mr Grace prepared a codicil to the deceased's Will (which Mr Moore says was not shown to him) in which the deceased left a pecuniary legacy of $25,000 to Mr Moore "in consideration of the assistance he has given me". The Codicil was witnessed by Mr Creech and another assistant in Mr Grace's office. The deceased was not given a copy of the Codicil to take with her. Mr Moore deposes that Mr Grace told him that he did not think that would be wise as it could later be claimed that there was undue influence (Mr Grace gives a different account of this).
Mr Moore's evidence is that he did not know the contents of the July 2014 Codicil until after the deceased's death (and the defendant does not dispute this). Mr Moore's evidence, of course, is that he did know the contents of the Will executed on 16 January 2014, or at least the summary of its contents, because he says he was present at the time. Again, the defendant denies that Mr Moore was present when instructions for the Will were given and says that the evidence does not make clear how Mr Moore came to learn about the contents of the Will - although it seems to be accepted that he did so at least by July 2014 when the appointment was made for what was ultimately drafted as a codicil to the Will (see Mr Grace's affidavit sworn 27 March 2017 at [29]).
Mr Moore accepts that at no time (then or later) did he say to Mr Grace that there was a binding agreement under which the deceased was obliged to leave her estate to him and Ms Andreasen (T 86.15ff).
Mr Grace's evidence in his affidavit sworn 27 March 2017 as to the 31 July 2014 meeting was as follows (at [28]-[29], [31]): 28. On or very shortly before 31 July 2014, I received a telephone call from a male person who identified himself as Mr Moore. Mr Moore spoke words to the following effect: Mr Moore: Barbara wants to change her will. Can we see you? A time for an appointment for me to see Barbara was agreed. At the time of this phone call, I was aware that Barbara was suffering from cancer. 29. On 31 July 2014, Barbara and Mr Moore arrived at Church & Grace's waiting room at the appointed time. The following then occurred: (a) Mr Moore remained in the waiting room whilst I showed Barbara into my office, where she sat opposite me at my desk. I saw Barbara in my office as I wanted to talk to her to satisfy myself, which I did, that she was not under any influence from anybody else when she instructed me and that she understood what she was wishing to do. (b) Words to the following effect were spoken: Me: Barbara, I understand that you want to make some changes to your will. Barbara: Yes. David has been good to me. I want to give him something. Me: There are two ways that can be done. You can give him a share of your estate, or you can give him what is called a legacy, which is a sum of money. Barbara: Give him money. Me: How much would you like to give him? Your estate is substantial. Barbara: Give him $25,000.00. (c) Barbara remained sitting in my office while I dictated the Codicil which she subsequently signed. (d) When the document was typed, I organised for James Creech and a Church & Grace staff member to come into my office. In their presence, I read the Codicil to Barbara and words to the following effect were spoken: Me: Barbara, I understand that you want to leave Mr Moore $25,000.00. Is that correct? Barbara: Yes. (e) I do not presently recall, whether on this occasion, I asked Barbara whether she wanted to practice her signature. (f) Barbara then signed the Codicil in the presence of two witnesses and myself. (g) Words to the following effect were then spoken: Me: Would you like us to keep the codicil in our strong room? Barbara: Yes. Me: Would you like a copy of the codicil? Barbara: No. (h) I then accompanied her to the waiting room, where Mr Moore had been waiting, and I ushered them out of the office. … 31. On a date which I am not presently able to recall but which was after Barbara had signed the Codicil, I received a telephone call from a person who identified himself as Mr Moore. Words to the following effect were spoken: Mr Moore: I would like a copy of Barbara's will. Me: I cannot give you that as it is confidential.

[18]

Sale of Mr Moore's tourist hotel business

In September 2014, Mr Moore sold the Australian Sunrise Lodge (instead, he says, of selling No 70) and used the proceeds of sale (approximately $4 million) to retire debt.

[19]

Death of the deceased

After a further period of hospitalisation in December 2014, the deceased died at home on 12 January 2015. Her funeral and wake were held on 22 January 2015. Mr Moore deposes that he and Ms Andreasen made the funeral arrangements and that they rang the deceased's siblings to tell them that she had passed away (see at [284]-[286] of his affidavit sworn 21 March 2016).
The plaintiffs depose that a day or so after the funeral, when Marion visited the deceased's unit, Marion said to Ms Andreasen "[d]on't worry. Barbara spoke to me about David. We know everything is going to David and the money is no use to us anyway", and that Marion's friend, Mr Ron Hickman, made a similar comment (see Mr Moore's affidavit sworn 21 March 2016 at [295]).
Mr Moore deposes that, sometime after the funeral, he was sent a copy of the deceased's Will and Codicil (see at [296] of his affidavit sworn 21 March 2016). He made an appointment for Ms Andreasen and him to see Mr Grace. He says that at that meeting he said to Mr Grace (at [297] of his affidavit sworn 21 March 2016): I am very unhappy about Barbara's Will and Codicil. I can't understand how Barbara can have left me $25,000 which is one quarter of one percent of her estate, after she told you in January that she wanted her money to go to me and down through my family. We looked after her like family for more than ten years. This Codicil does not reflect what our relationship was and what we meant to each other. We were expecting her to leave her whole estate to us, just as she said to you in January.
Mr Moore says that Mr Grace then said: Yes I know it's unexpected but please don't shoot the messenger. When she made the Codicil, she had no idea of the value of money and the value of $25,000. No doubt Barbara thought $25,000 was a vast amount of money. She was thinking that visiting a solicitor should cost about one Guinea.
Pausing here, if Mr Moore is here suggesting that Mr Grace conveyed to him that the deceased did not have at least a broad understanding of the value of her estate at the time, this would obviously be inconsistent with Mr Grace having satisfied himself at the time as to the deceased's testamentary capacity. Moreover, no challenge to the Will or Codicil on the basis of any lack of testamentary capacity was made.
Mr Moore says that he told Mr Grace that they wanted to talk to the deceased's siblings about a "redistribution" of the estate; and that Mr Grace said to write to him and he would talk to them on their behalf. Mr Moore also deposes that Mr Grace said to them during the meeting (at [297] of his affidavit sworn 21 March 2016): Don Lack rang me about Barbara's estate, he said that he wanted to make a provision for David. I told him that he didn't need to worry about that because Barbara had already made a provision for David in the codicil. He was happy after he heard that.

[20]

18 February 2015 email

On 18 February 2015, Mr Moore sent an email to Mr Grace. He says that he wrote this "in a very circumspect way so as not to offend or upset him". (It was certainly cryptic, as was Mr Moore's evidence in cross-examination about it, at least in some respects.) The email stated (and it is relevant here to emphasise that it makes no mention whatsoever of any promise by the deceased to leave her estate to the plaintiffs; let alone of any agreement to that effect) that: Further to our conversation on Tuesday 10 February I confirm that I wish to seek a variance on the distribution of Barbara's estate, based on Barbara's long term indications of her wishes and on the facts regarding her relationship to Dee and myself over the last seventeen years. As you know, this included us looking after her increasingly over the years, so that right to the end she was able to be cared for in her own home, as was her preference, rather than having to go into a nursing home. I hereby ask you to act on behalf of the beneficiaries to facilitate this and to enact any agreement the parties may arrive at. At some point we would like to speak to sister [sic], Marion Forsyth, and brother, Fred (Don) Lack, and Dee and I plan to go up to visit them soon. When you mentioned last Tuesday [10/2/15] that Fred Lack said he was prepared to make a provision for us from Barbara's estate, it confirmed in our minds the realisation that Barbara's lack of concern about the state of her will and her reluctance to focus on updating it, was based on a belief that she had given instructions to her brother and sister that they should arrange a share of her estate to go to us on her passing. We know that Barbara had given some instructions to her sister Marion because on 24 January 2015, when visiting Barbara's flat after the funeral, Marion told us out of the blue that "Barbara has spoken to me about David" and Marion's friend Ron added "Yes, Barbara spoke to Marion about David. The money is no good to us at our age." When we were reluctant to agree to the latter, he said: "You have to be realistic, we don't have any use for it." No more was said on the topic. This makes sense of Barbara making an unsolicited comment at the initial rewriting of her will on 16 January 2014 that "I always thought it would go to you (David) and down through the family." We had already been aware that after Gerald's death in 2002 Barbara spoke to her siblings about her estate. At the time she repeatedly tried to discuss this with us saying "I'm really worried about what to do with the money. My brother and sister don't want it". Even though we were Barbara's closest friends and confidants at the time, we avoided discussing this matter with her as we did not feel it was appropriate for us to do so. After a year or so she indicated that she had had detailed discussions with her siblings and stopped raising the issue. I think it most likely that Barbara's plan for her estate was to leave it to her brother and sister with the instruction to them to pass on a share to David at some point after her passing. [In cross-examination, Mr Moore quite candidly agreed that this was an intentionally false statement - see below] This is further confirmed by a conversation that took place in January 2014 during Barbara's first stay in hospital. A nurse, commenting on our presence there during a visit, said: "Barbara, you're a lucky lady to have these friends taking such good care of you". Barbara replied in a very focused and considered manner: "We take care of each other." This remark puzzled us at the time, as we had up till then only taken care of Barbara and not the reverse. (To illustrate this point: this included me personally doing all the maintenance and repair work on her properties for many years and paying for all the materials myself, assuming her to be a cash poor pensioner. It wasn't until years later when I took over her paper work and I realised she had substantial liquid funds, that I engaged trades people on her behalf to do some of this work. However, with Barbara's knowledge we had always paid for other expenses, such as parking fees and meals during her doctor's visits etc, out of our own pocket.) Now, considering what appears to have been Barbara's planned financial provision for us, we can see why she allowed us to cover all these costs without immediate recompense. So an understanding of her longer term intentions as described above makes sense of her remarks over the years and is also congruent with her overall attitude to us, which was that she always treated us as her trusted friends, akin to close family. There are many other details which can elucidate this whole situation, but this should suffice for now. We are very confident that we will be able to come to an agreement with Marion and Fred that everyone will be happy with. We would like to have further discussions with all concerned to achieve the best possible outcome.

[21]

Probate of the Will

On 26 March 2015, Probate was granted of the deceased's Will in common form. Pursuant to cl 2 of the Will, as noted above, the whole of the deceased's estate (subject, of course, to the Codicil in favour of Mr Moore) was left to Don and Marion in equal shares. The estate was valued, for the purposes of the grant of probate, at around $11.7 million (the properties at No 66 and No 68 at $9 million, and cash, shares, and units at $2.7 million).

[22]

Plaintiffs' attempts to persuade beneficiaries

In early May 2015, the plaintiffs visited both Marion (and her friend, Mr Ron Hickman) in Tweed Heads, and Don (whose enduring guardian, Mr Boyd Trevithick, a nephew of one of Marion's former husbands, gave evidence in the proceedings) in Ballina. This 'road trip' north was in an attempt to persuade the siblings to agree to what Mr Moore seems euphemistically to have referred to as a "redistribution" of the estate. Mr Moore deposes to a number of conversations during that trip in which he says both Marion and Don confirmed their understanding that the deceased was going to leave her estate to him. (This is disputed by Mr Trevithick insofar as he was privy to any of the discussions with Don - see from T 325.) No agreement was ultimately reached in this regard.

[23]

Proceedings

On 24 September 2015, these proceedings were commenced. On 14 October 2015, Mr Don Lack died.
On 16 November 2017, Mr Grace died (and, as noted above, his estate was later removed from the proceedings pursuant to r 6.29 of the UCPR). (As noted above, that in his affidavit Mr Grace denied a number of the conversations attributed to him by Mr Moore and Ms Andreasen.)
On 15 August 2018, Marion gave evidence on commission in the proceedings (see below).

[24]

Witnesses and evidence

Before turning to the issues raised for determination, it is convenient here to summarise the evidence that was adduced and to record my observations and conclusions as to the various witnesses.
As to the assessment of the conflicting evidence, as the defendant notes, there must be "an actual persuasion of the occurrence of any conversation propounded by a claimant" (the defendant referring to John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94], per Hammerschlag J; and to the summary by Black J of the principles to which a Court should have regard in assessing the affidavit and oral evidence as set out in In the matter of Hillsea Pty Limited [2019] NSWSC 1152 at [16]- [22]). It is noted that these principles include the well-known observation by McLelland CJ in Eq as to the fallibility of human memory over the passage of time in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 319; and that weight should be accorded so far as possible to "contemporary materials, objectively established facts and the apparent logic of events".
The defendant notes, in this regard, that the implausibility of accounts of oral arrangements may be reinforced by the fact that neither of the parties sought to confirm in writing what objectively would have been a momentously significant outcome (referring to White v Philips Electronics Australia Ltd [2019] NSWCA 115 at [49], per Bell P).
While I accept that there is not a higher onus of proof in this regard, it is nonetheless the case that one must scrutinise carefully evidence as to oral conversations with deceased persons (see Plunkett v Bull (1915) 19 CLR 544 at 548-9, per Isaacs J; [1915] HCA 14), and, as in all such cases, I place relatively more weight on contemporaneous documents and the objective circumstances as a whole over the affidavit and oral evidence of those directly interested in the outcome of the litigation.

[25]

Mr Moore

I note that significant criticism is made by the defendant (with no little force) as to Mr Moore's credit and reliability. The defendant submits that Mr Moore's credit is significantly impaired in many respects.
The defendant emphasises, in particular, the 18 February 2015 email sent by Mr Moore to Mr Grace (to which I have referred above), about which the defendant says: first, that this demonstrates a capacity on the part of Mr Moore on serious occasions to tell an intentional lie (see Mr Moore's oral evidence in relation to this at T 91.39-92.4; T 93.14-17); second, that Mr Moore's evidence concerning this email was redolent with contradiction and evasion (and ultimately "dissolved" into "incoherence and fantasy") (referring to his evidence at T 86.6-94.4; and, in particular to the exchanges at T 89.27-30, T 90.14-15, T 90.30-43, T 92.6-92.37,T 93.19-94.40); and, third, that Mr Moore's failure to refer in the 18 February 2015 email to what he claims were statements or instructions made by the deceased which he asserts Mr Grace disregarded, is wholly at odds with the likelihood of such discussions occurring at all and that his contrived excuses for such non-reference in his oral evidence are implausible (referring to the exchanges at T 86.6-86.40, 87.17- 88.28, T 90.30-50).
As to the various iterations of the time at which it is said this agreement was made, the defendant characterises this as equivocation, indecision, and attempted manipulation which the defendant also says is discreditable. It is noted that Mr Moore successively verified his pleading, asserting that the alleged agreement was made "in about early 2006" on the first two occasions, but was entered into "about late 2004" on two further occasions; and then on the first morning of the trial "corrected" several paragraphs of his first affidavit sworn 21 March 2016 to replace references to "early 2005" with the words "late 2004". The defendant says that the plaintiffs' later pleadings introduced amendments (which I have detailed below) which have gradually enlarged the terms and content of the alleged agreement/representation to include progressively: a term not to undertake renovation which would "build out" the view of the deceased from her properties (added 9 February 2018, 4(B)); and not leaving and selling their property (which they intended to do) (added 20 June 2018, (C)).

[26]

Observations as to Mr Moore's evidence

I have no doubt that Mr Moore firmly believes in the merits of his claim and is convinced of his version of events. However, the difficulty I have with Mr Moore's evidence as to the 16 January 2014 meeting is that it is inherently implausible that a highly experienced probate and estates lawyer, such as it is not disputed Mr Grace was, would have departed from what he has deposed was his invariable and standard practice (that being a practice that accords with what I would expect of a competent lawyer practising in this area). There is simply no obvious reason for Mr Grace to have departed from his standard practice on that occasion; and no reason to disbelieve the evidence of the other lawyers as to what they observed (and, relevantly, did not observe) on that occasion. Furthermore, I have the benefit of a contemporaneous file note that supports Mr Grace's later (albeit untested in cross-examination) affidavit account of what occurred on that occasion. I consider the fact that Mr Moore, on his own version of events, made no mention of the alleged binding agreement on that occasion (or thereafter) to be telling.
I also consider that Mr Moore's account of the purpose of the 18 February 2015 email and the manner in which he sought to persuade the beneficiaries of his claim to the estate to be telling. Cryptic though the email (and Mr Moore's evidence about it) was, what seems clear is that Mr Moore thought that Mr Aubusson and Mr Creech might prevent Mr Grace from acceding to Mr Moore's request that Mr Grace intervene on his behalf with the beneficiaries (see, for example, from T 88-90) and that this would "damage my cause" (T 90.43) That concern cannot have been because Mr Grace as an executor had a duty to uphold the Will (since there is nothing to suggest that Mr Moore was aware of this legal duty on Mr Grace's part and saying something in the email about an alleged agreement with the deceased would not have affected that duty in any event).
The distinct impression that I was left with at the time (and which was confirmed on my re-reading of the transcript after judgment was reserved) was that Mr Moore was contemplating that there might be some claim against Mr Grace (or Church & Grace) arising out of what he in effect alleges was the failure of Mr Grace to draft the Will in accordance with the deceased's instructions (a Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 type of claim perhaps) and that he thought if he was explicit about such a claim in his communications with Mr Grace then there might be a conflict of interest that would preclude Mr Grace from assisting him to intervene with the beneficiaries on his behalf (see in particular Mr Moore's evidence (at T 93.42) where he said that the "purpose" was that he was "not accusing them of what they actually did").

[27]

Ms Andreasen

No specific issues were raised by the defendant as to Ms Andreasen's credit; rather, the issue raised as to Ms Andreasen's evidence was largely as to the perceived exaggeration of events, as noted above. There was some suggestion that the bringing of chicken soup to the deceased by Ms Andreasen the day after the deceased made her Will (as recounted by Mr Moore at [176] of his affidavit sworn 23 March 2016) called into question the evidence given by Mr Moore of his alleged protestations to Ms Andreasen about what he asserts were the remarkable events at the office of the deceased's solicitor on that day (in which evidence he records that Ms Andreasen was stunned and shocked). However, in cross-examination it seemed to me that Ms Andreasen's response when she heard from Mr Moore that the deceased had left the entirety of her estate to her siblings (that she was "very, very upset"; and that it "was a problem" but that she remained a good and close friend of the deceased) and the reason she gave as to why she did not raise this with the deceased at the time (see T 153) was plausible and that her evidence in this respect was genuine.
The plaintiffs in reply submissions say that there was no submission put to Ms Andreasen that she gave deliberately false evidence and was prepared to make deliberately false statements (and that only in limited cases was this put to Mr Moore).

[28]

Observations as to Ms Andreasen's evidence

I have noted above one particular aspect of Ms Andreasen's evidence in the witness box that I considered to be quite plausible. I also considered that Ms Andreasen's oral evidence in cross-examination as to the change in the deceased's attitude when seeking assistance, after the time at which the alleged agreement was reached, as credible (at T 142.34ff): Q. After this discussion with Mrs Murphy which you now say took place in late 2004, you'd agree with me, wouldn't you, that nothing of any substance changed immediately afterwards in your relationship with Mrs Murphy? A. Barbara appeared to feel more of a right, have more of a right to help she was getting, particularly at that time it was more from David fixing things and prior to that, prior to that time she would ask is it all right for David to do this being aware that it would take time away from him doing things for us or, or..(not transcribable)..to..(not transcribable).. and after that time she didn't ask permission. It was part of the agreement that it was understood that that's the kind of things David will do. Q. In your conversations with Mrs Murphy after the conversation in late 2004, you didn't specifically mention the agreement you say was struck at that time, you didn't mention that agreement to Mrs Murphy, did you? A. Barbara would bring it up, Barbara would bring it up from time to time. …. Q. After the conversation in 2004, you and David Moore continued to assist and support Mrs Murphy pretty much as you had done before the conversation, do you agree with that? A. No. It became more frequent and, and David did ..(not transcribable)..jobs for her, repair work. Q. But in any event, as far as you understood the assistance that you and David Moore were giving to Mrs Murphy was motivated by kindness rather than the prospect of financial reward. You'd agree with that, wouldn't you? A. No, it wasn't..(not transcribable)..which made it more, it was more of David's responsibility and my responsibility as, as issues cropped up where she had need that we would step in. It was a much more formal arrangement in that sense even though it wasn't written. Q. You don't suggest, do you, that you or David would've stopped supporting and assisting Mrs Murphy after 2004 if she hadn't promised to leave her estate to you? You don't suggest that, do you? A. We wouldn't have assisted her to the extent that we did because it was way more than just being kind neighbours. So, it wouldn't have been appropriate or..(not transcribable).. Q. Can you just give us a few examples of how immediately after 2004 the nature or quality of the assistance and support you were giving to Mrs Murphy changed? A. David did more work for her and more substantial work and at that time it was, in, in terms of jobs, it was more his doing and he [sic- we] went out more frequently to cafes and things and, and, and I will [sic] bring her food more frequently if I cooked something.

[29]

Maia

Maia's evidence is that she was not only told by the plaintiffs of this arrangement, but was told also by the deceased directly on two occasions. On the first occasion, her account of the conversation is that the deceased said (at [19] of her affidavit sworn 16 March 2016): "I just wanted to make sure you knew about it. I know I can trust David and Dee. They're going to look after things for me when I get older, and I'm going to leave everything to them. We're going to look after each other."
On the second occasion, and in the context of a discussion about Ms Andreasen's care for her own mother, Maia says that the deceased said to Maia (at [20] of her affidavit sworn 16 March 2016): "That's what I want, to stay in my own home. I wouldn't want to end up in a nursing home, surrounded by strangers. But I know I can trust David and Dee. They promised me that if I need help when I'm older, they'll take care of everything for me, just like they did for your grandmother. They know I want to stay in my own home, and I know I can count on them."
Relevantly, criticism is made by the defendant of the fact that it was not until Maia's third affidavit (sworn 9 April 2020) that she deposed to her recollection of Mr Moore's description of events at the deceased's solicitor's office on 16 January 2014 and Ms Andreasen's reaction.
The plaintiffs say that it is striking that Maia's recollection of the conversation with the plaintiffs about the arrangement (see her affidavit at [15] of her affidavit sworn 16 March 2016) was because it was "a very significant" one (see T 186.35). It is said that Maia's oral evidence was "consistent with the realities of the position", namely that "it was my mum and Dave telling me about Barbara's intention to leave them a very large estate so it was very significant and I remember it very well". It is noted that, like Mr Renshaw, Maia found the episode simultaneously "awkward" and significant, by reason of the deceased's determination of letting the two of them know of the arrangement, saying (at T 187.5) that: She was quite determined that we knew about it she seemed to be or to test that we knew about these arrangement for her will.

[30]

Observations as to Maia's evidence

I accept that Maia has an obvious interest in the outcome of the litigation but I nevertheless found her to be a credible witness. I do not draw anything adverse to her credit from the fact that her evidence was supplemented close to the hearing by reference to her observations of the reactions within the family to the discovery of the Will. She did not appear to me to be prone to embellishment and she was not shaken in her recollection of events in cross-examination. That said, her evidence of the conversation in which she says the deceased says that she was going to leave "everything" to the plaintiffs is in very general terms and it does not leave me with an actual satisfaction that on the balance of probabilities the promise was as broad as that (particularly in circumstances where the context in which the promise was made was, as evident from the conversation Mr Renshaw deposes to with the deceased, related to the properties).

[31]

Juan Renshaw

Mr Renshaw confirmed Maia's recollection of the first of the two conversations Maia says she had with the deceased (see his affidavit sworn 16 March 2016 at [11]), but relevantly he also gave an account of another encounter with the deceased at Mr Moore's boatshed, in which he says that the deceased said (at [12] of his affidavit sworn 16 March 2016): "Well, when I'm gone it will all come down though the family, to David and Dee and then to your family. When I'm gone you'll have to look after it all, and you can fix everything up down here. You could even fix up my boatshed and get some rent for it. You know Gerald built a huge boat here, right over there on our lawn. Maybe when I'm gone you can swap your canoe for a real boat and moor it here. And you'll have to look after my lawn - you need to keep mowing it regularly, you can't let it go!"
The defendant points to the fact that Mr Renshaw gave no evidence as to Mr Moore's description of events on 16 January 2014, and it was suggested that he had an interest in the outcome of the litigation. I do not accept that suggestion. Although not divorced, Mr Renshaw's evidence was that he had been separated from Maia (at the time of the trial) for three years. When it was put to him that he saw the litigation as a mechanism for gaining an inheritance, he responded (at T 173.19): Well, in my situation now we're separated so.
I considered that response to be genuine and I accept that he gave his evidence as a dispassionate and disinterested witness.
The plaintiffs say that a second striking feature about Mr Renshaw's evidence was his ability to recall the conversation referred to in his affidavit at [9] of his affidavit sworn 16 March 2016 because of the deceased's dislike for her other neighbour at No 72 and the damage to her view occasioned by the works to his verandah. It is noted that, as to the critical conversation he had with the deceased (see at [11]), he said, in re-examination (at T 177.13ff): Q. Again, it was put to you, as I recall, that your memory might have failed you in relation to that conversation. A. No, I remember that conversation very well. I remember the room it happened in, and I don't exactly remember the time, but I know it was in the second half of 2006 when we were living there. I remember being embarrassed in that conversation, and I also remember, I remember feeling a bit embarrassed because I was leaning up against the table. She was talking to me and I thought that was a bit uncouth after my conversation with her.

[32]

Observations of Mr Renshaw's evidence

In addition to the preceding observations, I here record that I found Mr Renshaw to be a very believable witness. His account of the conversations with the deceased was not embellished. He did not exaggerate and his evidence was matter of fact. Ironically, perhaps, given the obvious surprise on his part that it might be suggested he would benefit from the litigation, ultimately it is Mr Renshaw's evidence (together with that of Ms Andreason), taken with Marion's testimony, that has persuaded me to the requisite degree of satisfaction that testamentary promises in relation to the two properties were indeed made to the plaintiffs (see my findings in due course).

[33]

The carers - Ms Kelera Veiqaravi and Ms Ruci Olelala

As to the evidence of the carers, the defendant points out that the carers were interviewed and selected by Ms Andreasen. (If, by that, it is suggested that they in some way felt beholden to act in her interest, I do not accept that the evidence establishes this.)
Ms Veiqaravi recalls the deceased saying more than once that her testamentary affairs had been taken care of, and in November 2014 saying to her (at [27] of her affidavit sworn 10 March 2016): Everything is going to David and Dee. They've been looking after me all these years. My brother and sister are older than me, I couldn't rely on them. They know all about David and they are very happy about it.
The defendant says that it was very clear from the evidence of Ms Veiqaravi that the deceased did not like to discuss her testamentary arrangements; and that she resented various endeavours to broach that subject; and on at least one occasion grew cross when the issue was raised. The defendant says that Ms Veiqaravi was not able to explain her persistence in that regard and, although it is accepted that in a number of respects she was a plausible witness, the defendant says that her evidence as to the content of the deceased's testamentary arrangements cannot be completely accepted as inconsistent with the fact that there were other people to whom the deceased was close with whom the deceased did not discuss her testamentary arrangements (such as Mr Condon and Ms Manuel-Condon).
It is further submitted by the defendant that if the deceased had confided her testamentary arrangements to Ms Veiqaravi, it is unlikely that the deceased would have lied to her, and that (since the deceased had made a Codicil on 31 July 2014) it is likely that if she had been minded to say anything it would be limited to acknowledging that she had made some provision for Mr Moore. Pausing here, this seems to involve an element of speculation (including as to whether the deceased would have had a reliable memory or understanding of what she had done, depending on her physical or mental state at the time of the conversation(s)).
The defendant also raises the issue as to the Ms Veiqaravi's evidence that corrections were made to her affidavit, which she could not now recall. It is submitted that it would be unsafe to attribute to the deceased a statement in terms of her whole estate, and that an alternative possibility is that the deceased was simply "closing out" a topic which the deceased did not wish to discuss. In any event, the defendant says that ultimately nothing turns on the carers' evidence in this regard.

[34]

Observations as to the carers' evidence

I make no adverse findings as to the carers' evidence. They presented as truthful witnesses who were doing their best to answer the questions honestly. Certainly, in Ms Veiqaravi's case, it was obvious that she would have preferred not to have had the experience of giving evidence in court. I do not regard the fact that there were corrections made to her affidavit (to make it read more grammatically, she thought) as being adverse to her credit. I accept that broadly speaking her evidence was her own account of events (even if the English used was improved), and in any event, I ultimately do not find the evidence of the carers to be determinative one way or the other. I accept that there is an inconsistency between the deceased expressing displeasure about being questioned as to her Will and then responding as she did, but ultimately I think that, more likely, it says more about the deceased's distaste at enquiries as to her private affairs than anything else.
That said, I consider that the generality of the evidence makes it difficult to place substantial weight on the extent of the estate to which the initial testamentary promise(s) related.

[35]

The neighbours and friends

The plaintiffs point out that, as to the evidence of the neighbours, none of the neighbours who gave evidence will benefit, one way or the other, from the outcome of the litigation and that any ties of friendship with the plaintiffs have, at least in some cases, been severed by the passage of time. So, for example, it is noted that Ms Roennfeldt-Bongers left Birchgrove some time ago and does not appear to have any close relationship with the plaintiffs.
Evidence was given by a number of such witnesses. In the plaintiffs' case, the plaintiffs adduced evidence from Mr Condon, Ms Manuel-Condon, Ms Roennfeldt-Bongers, Mr Willsoni Yali (a demolition contractor who lived for a time in the property with his wife and said he had never heard the deceased talk about her Will), Ms Ludmilla Stephens (a friend of Ms Andreasen, who had never met the deceased), Dr Suda (a friend who had visited at the plaintiffs' home and met the deceased on a couple of occasions), and Mr Michael Conway (a builder who had worked with Mr Moore on certain property in the past and gave evidence of what Mr Moore had told him about the deceased's promise). In the defendant's case, there was evidence from Mr Vukelic, Ms Duerden (another neighbour), Dr Robert Dickinson (who had been a former tenant and who gave evidence of a meeting with the deceased on Boxing Day 2013), Ms Maunsell, and Ms Elizabeth Shaw.

[36]

Observations as to evidence of neighbours and friends

Those witnesses gave evidence as to their observations of the deceased at relevant times and I accept that each gave evidence genuinely of his or her recollection or perception of events. I do not see it as necessary here to summarise all of that evidence. I simply address some of the issues that were raised in the course of cross-examination of some of those witnesses.
So, for example, Dr Dickinson gave evidence as to his concern that the deceased might have been influenced or persuaded by Mr Moore. He denied (and I accept his denial) that this was because he did not like Mr Moore. Rather, his concern appeared to be that the deceased was vulnerable to exploitation (including after a telephone call from Ms Veiqaraui; see T 275.18ff; T 276.3; T 278.2), and he said that he had attempted to contact Marion to be sure that she was aware of the deceased's condition. He accepted that did not attempt to contact the deceased's brother, Don, to convey his concerns, nor did he say that anything had stopped him acting on those concerns.
Pausing here, I can understand that one might well have concerns about exploitation of elderly or otherwise vulnerable people who (as was the deceased at the time) are physically at a distance from their immediate family and dependent on others for their care. I say that without criticism of Mr Moore. However, such a situation is one that bears all the hallmarks of a situation ripe for undue influence (that is, a situation of dominance or ascendancy and of reliance and trust on another who is in that position - see Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41 at 119, per Latham CJ, albeit there speaking of gifts inter vivos, that "[w]herever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised"). I am not suggesting that Mr Moore abused the position of trust and confidence that the deceased had reposed in him; but it is by no means surprising that an outsider might have concerns about this (and, interposing here, I would have thought it incumbent on a solicitor in the position of Mr Grace to have been alert to such a possibility). Therefore I cannot see that it was unreasonable of Dr Dickinson to have expressed those concerns (well-founded or otherwise), or to have attempted to contact Marion about those concerns.

[37]

Ms Marion Forsyth

As noted, Marion's oral testimony was given on examination prior to the hearing. It included the following (at T 59.34ff of the examination): Q. And you were quite content for David and Dee to have at least some part of the estate [of Barbara] because your sister had told you that she was going to give the estate to them for the work they did; is that your position? A. Well, I mean, whatever she wanted to do, it wasn't for me to contradict. Q. And she had told you before this time that she was going to leave the estate to David and Dee because of the work they'd done, correct? A. Mm. Q. Did you answer that question "yes"? A. Yes. Q. That is, Barbara had said to you before she had died that she was going to give this estate to David and Dee because of the promise they had made to look after her. Is that your evidence as to what she said? A. She did say that she was going to leave the estate, yes. … Q. You said to him on those occasions that Barbara had told you years ago that she was leaving everything to David Moore, you said that to him can I suggest? A. Yes, she did say she was leaving the house or the money from the house to that [sic] but even then I didn't know how much the estate was worth. Q. How many times did she say those words to you, that is Barbara say those words to you? A. Oh, I can't recall that. Q. It was a number of times, was it? A. Well yeah, it would have been a number. Q. Can you give to the Registrar a rough estimate of the number of times she said those words to you? A. No, I can't because we never spoke very much about money. Q. It was certainly on multiple occasions, correct? A. Yes. Q. We know that Barbara died in 2015, do you recall the first time before she died she told you about this promise, was it 10 years before or five years before or what? A. No, I can't recall how long it was. Q. Was it a number of years at least? A. It could have been. Q. To the best of your recollection did you have this understanding about Barbara's intentions for at least some years before Barbara died? A. Well, if I had known how much the estate was worth I certainly would have had my say then but I had no idea. Q. But in all events, I was asking you a slightly different question, how many years before Barbara's death did she first raise this issue with you? A. Oh, I can't recall that. Q. But was it a number of years? A. Yes. Q. It's certainly the case isn't it that after Barbara passed on you told David and Dee more than once that Barbara had in fact said those words to you? A. Yes, she said she was leaving the estate but she didn't tell me how much the estate was worth. … Q. … Can I suggest to you that after Barbara died you told David and Dee more than once that Barbara had in fact said to you that she was going to leave the estate to the two of them, you told that to David and Dee, didn't you? A. Yeah. [Emphasis added]

[38]

Observations re Marion's evidence

Obviously, I was not able to assess Marion's evidence in the same way as that of the witnesses who appeared before me (in the virtual courtroom). However, I have had the benefit of the transcript in which her evidence was tested in cross-examination.
The significance of this evidence in my opinion is twofold: first, it is clear from Marion's evidence that the deceased had told her more than once that she was leaving either the estate or the "the house or the money from the house" to the plaintiffs; and, second, that not only had Marion not raised any issue about this (apparently, from the number of times she raised this, because she had no idea how much the estate or the property was worth - which belies the proposition that the siblings were not interested in or had no use for the deceased's money) but, more importantly, that she had told the plaintiffs that the deceased had said that. The first confirms the making of testamentary promises by the deceased of the kind alleged by the plaintiffs; the second corroborates the evidence of the plaintiffs that the deceased had told them that she had told her siblings about her testamentary intentions and that they had raised no issues about it.
To the extent that this evidence is relied upon by the plaintiffs as an admission against interest, I see as significant the fact that Marion admitted more than once in the above testimony that the deceased had said she was leaving either the estate, or the house, or the money from it to the plaintiffs. I consider that, in the context of her statement that had she known how much the estate was worth Marion would "certainly have had [her] say", this evidence was credible and should be accepted. However, where there is uncertainty in this evidence is as to whether what Marion recalled the deceased saying was to be left to the plaintiffs was the whole of the estate (which is the plaintiffs' contention) or, as Marion elsewhere gave evidence, the house (or the money from the house); and, indeed, whether Marion's understanding was that the estate comprised anything more than the real estate.
Thus I consider the Marion's evidence supports the conclusion that testamentary promises were indeed made by the deceased, but I am not sufficiently confident that those promises comprised the entirety of the estate (as opposed to the real estate alone).

[39]

Ronald Hickman

Mr Hickman, who was Marion's friend (and with whom Mr Trevithick said she had entered into a new relationship in 2007 - see T 313.45) had given evidence by affidavit sworn 22 February 2017. As he was elderly, he had also been cross-examined on that affidavit at an earlier stage, and his evidence at that time was that he was not able to recall the circumstances in which he came to prepare his affidavit. Consequently, there is only very limited weight, if any, that can be placed on that evidence.

[40]

David Hickman

Mr David Hickman, formerly an industrial arts teacher and now running a small real estate agency in Parramatta, is the son of Ron Hickman. He swore an affidavit in the proceedings on 24 March 2017. He did not have a clear recollection about dates but thought he had first met the deceased at the end of 2012 or 2013 when he drove Marion to her home. He was a loquacious witness (more so than Mr Trevithick, who I discuss below). It was in effect put to him that he stood to gain from the proceedings on the basis that he understood he was or was likely to be a substantial beneficiary under his father's Will. After some confusion, it appeared that he accepted this (at T 342.27ff).
On the whole, I gained little assistance from Mr Hickman's evidence.

[41]

Boyd Trevithick

Mr Trevithick was Don Lack's carer. He is the nephew of one of Marion's former husbands (see his affidavit sworn 21 June 2017 at [2]). He had prepared a two page note as to his observations when the plaintiffs visited Don Lack in mid-2015 (annexed to his affidavit as annexure B). I treat that note with some caution as it was clearly prepared when Mr Trevithick had formed an adverse view as to the plaintiffs (and considered that they had been placing pressure on Mr Lack).
Mr Trevithick was loquacious in the witness box. His evidence was that Don had pressed Mr Moore as to whether he was happy with the legacy and what he wanted, and that Mr Moore ended up saying he wanted "the lot", to which Don had said "no way". Mr Trevithick said that Mr Moore told Don that he and Ms Andreasen had reached an agreement with Marion and Ron, but that they had changed their mind (T 322.29ff). Mr Trevithick said that Don had assured him that he would not be signing anything, and that he was confident that Don was competent.
Mr Trevithick accepted that Mr Moore had said (at least once) that the deceased had "pledged" that she wanted to leave her estate to Mr Moore and that it be passed down through Mr Moore's family (T 326-328). Mr Trevithick did not suggest that Don had agreed to this.
I consider that Mr Trevithick's evidence (which I broadly accept) nevertheless does not take the matter very far. The fact that the plaintiffs may have put pressure on Mr Lack to agree to them obtaining the whole of the estate (or that Mr Moore may have misrepresented to Mr Lack the nature of his discussions with Marion and Mr Hickman) says nothing as to whether or not the relevant promises were made (or relied upon by the plaintiffs). At most this is consistent with what one might consider to be an unpalatable attempt to press their case with an elderly (and perhaps vulnerable) beneficiary. It does not, however, go to the substance of the claim made against the estate.

[42]

Clarissa Huegill

The defendant called evidence from a solicitor in Ballina, Ms Huegill, who had attended on Don Lack in 2013 in relation to a new Will proposed to be drafted for Don. She swore an affidavit on 8 May 2017 in the proceedings. Ms Huegill's file note of an attendance on Mr Lack on 19 July 2013 (to which objection was taken on the ground of relevance but which was admitted as Ex G) recorded that Don was proposing to leave Mr Boyd Trevithick (as noted, his carer) half his estate and included the following (see T 287.16ff): Discussed why Boyd getting half estate, suggested to me he can change will at any time so I think he intends to use this as a way to keep Boyd helping him (my opinion entirely and this intent does not appear malicious by Don).
Ms Huegill was also taken to a file note of an attendance on Don and Mr Trevithick on 28 May 2015. Ms Huegill's recollection was that Don had come to see her about his Will on that occasion. The file note recorded that Don's sister had died in mid-January 2014; that Don was a half-beneficiary of her Will; and that Mr David Moore had dropped in the deceased's belongings to Don, and that "[h]e said he wanted whole estate". An annexure to the file note was a document that had been prepared by Mr Trevithick (as to the attendances on Don by the plaintiffs).
Ms Huegill (and I say this without criticism) appeared to have little recollection as to the circumstances of that note other than so far as she had deposed in her affidavit that Don said this had happened on 20 May 2015 (see T 290-292). I regard her file note as corroborative of Mr Trevithick's perception that the plaintiffs were placing pressure on Mr Lack; and there can be no dispute that what the plaintiffs want is the whole estate - since that is what they are now seeking (whether or not they might have agreed at an earlier stage to some lesser "redistribution" of the estate is a moot point). Otherwise, I draw little from her evidence.

[43]

Construction consultant's evidence

Mr George Zakos, a construction consultant gave evidence (in his affidavit sworn 16 May 2019) as to the building works carried out in respect of the deceased's property (see his report dated 14 May 2019, Ex 2 - there was again an objection on the basis of relevance to that tender and it was admitted subject to relevance). Mr Zakos had inspected the property in 2018. He was asked to form an opinion as to the items of building work set out in the schedule of works said to have been done by Mr Moore on the properties at No 66 and No 68 (as to the estimated value of those works, as well as opining as to whether the property shows only normal "wear and tear", or whether it has not been well maintained).
Mr Zakos, in cross-examination (starting at T 431) conceded that he did not include in his total a costing for the repairs to the stairs, or include any charge-out fee that would have been applied to plumbing and electrician jobs (T 433). He also accepted that some of the works done in the early 2000s may not have still been visible when he inspected the property in 2018 (T 432). Mr Zakos accepted that he did not consider any minimum call out fees that might be charged say for after-hours work or the like; and that he did not value the works on the stairs (but had seen a quote for $25,000 for works), he doubted the reasonableness of that figure because it included stairs on waterfront $19,000.
In closing oral submissions, it was accepted by the plaintiffs that, to the extent that Mr Zakos had attempted as best he could to quantify certain items (based on what is now evident after all these years) one would arrive at a "fairly modest figure" of about $60,000 (T 473.31).
I accept Mr Zakos' evidence, as far as it goes. However, it does not appear to me to take matters very far.

[44]

Expert Evidence re proposed development plans / Town planning evidence

It is necessary also to say something about the various experts' reports.

[45]

Expert Report of Mr Brady (Ex B)

Mr Nicholas Brady was called by the plaintiffs to give evidence. His report provides an estimated valuation of No 70 as at 30 June 2007 on two bases: first on an "as is" basis (with an estimate of $3,400,000, excluding GST); and, second, on an "as if complete" basis (i.e., on the basis that No 70 had been fully renovated/refurbished/extended in a substantially similar or identical basis to No 72) (giving an estimate of $4,000,000, excluding GST). Mr Brady was not called for cross-examination.

[46]

Expert Report of Mr Barker (Ex E)

Mr John Barker was also called to give evidence by the plaintiffs. His report (dated 22 July 2018, Ex E) goes to what the "reasonable approximate construction costs to alter and extend the property" at No 70 were in the period 2004 to2006, assuming those works to be substantially similar or identical to the work carried out to No 72. His estimates range from $363,600 (including GST) in 2004, to $411,250 (including GST) in 2006 (see [6.41]-[6.45]). Mr Barker was not called for cross-examination.

[47]

Expert Reports of Mr Lay (Exs C, D, K)

Mr Bruce Lay provided three reports in the proceedings (dated 15 June 2018, 25 March 2020, and 21 April 2020, respectively). Mr Lay was not required for cross-examination.
In his first report (Ex C, dated 15 June 2018), Mr Lay sets out that his expertise stems from his experience as a qualified architect and town planner, and as having been employed by teh Council from 1981 to 2006. He identifies that in his role in the Council, he did not assess development applications but was located in the strategic planning function where he advised on both strategic and statutory planning issues in relation to development approvals, and says that his advice was rarely rejected (at [6]). Mr Lay concludes that had a development application been lodged between 2004 and 2006 based on the earlier Bonus Plans, then that development application would have been approved by the Council.
Mr Lay identifies the following factors on which he relies for the opinion that the development application would have been approved. First, that the development application would preserve the consistency of the pair of attached houses (namely No 70 and No 72). Second, that the Bonus Plans were in compliance with the relevant development control plan (the DCP). Third, that the Bonus Plans complied with the foreshore building line. Fourth, that the Bonus Plans maintained the principal outlook to the water side, which was the primary view ([45]).
Mr Lay also concludes that the later plans submitted to the council "were not consistent with the [development] controls", and he would not have supported their approval ([40]).
In Mr Lay's second report (Ex D), dated 25 March 2020, Mr Lay replies to the report of Dr Gary Shiels exhibited to Dr Shiels' affidavit sworn 16 May 2019 (see below). Mr Lay reiterates his view that "a scheme along the lines of the Bonus Plans for the extension of No 70 would have been approved", given the development control plan controls in place, and the practice of the council at that time (at [4.5]). To this extent, he is in disagreement with Dr Shiels, although he agrees with Dr Shiels on certain points.
Ultimately, Mr Lay disagrees that the side setback would be an issue requiring an additional setback ([5.6]). He notes that the "side setbacks in the DCP were frequently varied then and now on the merits." He also notes that "generally views trump privacy on waterfront sites", and that the lack of privacy screens would not have been an impediment to the approval of the Bonus Plans ([5.7]-[5.9]). Mr Lay additionally draws a distinction between the materials on which each of he and Dr Shiels were relying.

[48]

Expert evidence of Dr Shiels

The defendant called evidence from Dr Gary Shiels a registered town planner. For some time, Dr Shiels was director of planning and community development at the Council. Dr Shiels was asked to give an opinion as to the likely determination of the Bonus Plans. There was also evidence from Dr Shiels going to the issue as to the likelihood of approval of the Bonus Plans (and commenting on Mr Lay's report).
As adverted to above, Dr Shiels produced a report which was exhibited to his affidavit sworn 16 May 2019. (It does not appear that that report was tendered, as such, but in any event his opinions were explored through his cross-examination.)
In cross-examination, Dr Shiels gave evidence that, in his opinion, the Bonus Plans would not have been approved because of the setback requirements and because the FSR of the plans exceeded the requirements (at T 442-444). However, he also accepted that his calculations were only an estimate and may suffer some distortion by virtue of his calculations being based on photocopies of the original documents, and he conceded that some elements which he included in his calculation of the FSR (such as the boatshed) could be subject to dispute (T 453). He did confirm that the Bonus Plans would have impacted the view of No 68. He also disputed Mr Lay's evidence that Mr Lay's advice to the council on the applications Mr Lay reviewed was changed or rejected only rarely (T 455-456).
Dr Shiels was asked whether the additional setbacks on the western boundary that he considered were require at least for the balcony and whether these could have been affected by a condition of consent that restricted the balcony to a width of 1.5 metres. He did not accept that proposition. Elaborating on that, he said (at T 440.17): A. Thank you, sir. I, I - my comment was a bit simplistic to your question, which I answered in the negative that you couldn't just impose a condition, because the plans have a number of issues, if not problems. Your Honour, the, the calculations of the floor space in this proposal, based on the drawings that I have, would suggest that the proposal exceeds the statutory floorspace ratio, which would require a - what's known as a SEPP 1 objection or state environmental planning policy objection to vary that development standard. Your Honour, that's my first point. My second point is that area, it's a building location zone, also referred to in my report. The building location zone in the DCP suggests that you need to have greater regard to the building at number 68, in other words, it lines up the alignment with the building at 68 and the building as approved at 72. The third thing, your Honour, which I would say is that, in the development control plan, there is a setback requirement by virtue of a sliding scale that would suggest a setback on this boundary in the order of 3 metres. Now, for the council to approve the application we need to vary those planning controls, which are not, not minor, in my view.

[49]

Observations as to expert evidence

The issue in relation to this evidence was not as to the expertise (or credibility) of the witnesses, although Dr Shiels pointed out that Mr Lay's role previously had not been in relation to approval of such applications. The evidence goes to the question of the likelihood as to the Bonus Plans (or some version of them) being approved had the plaintiffs pursued their plans for renovation of No 70 (that they say were put on hold after the "agreement" reached with the deceased).
I accept that the likelihood of the plans being approved is not determinative as to whether there was reliance on the alleged testamentary promises and may not necessarily go to whether any such reliance was detrimental (in the sense that on the plaintiffs' case they say that they were at the least deprived of the opportunity to proceed with the possibility of those plans by their reliance on the issue as to the deceased's water views). Whether the decision not to proceed with No 70 was actually based on the issue of the deceased's water views or not is a different matter (as is the question whether the deceased's conscience would have been bound if the deceased had no appreciation of what is now asserted to be the or a major part of the alleged detriment suffered by reliance on the alleged testamentary promises). I deal with those questions in due course. Suffice at this point to note that there is no need for any credit findings in relation to the expert evidence.

[50]

Evidence by the legal practitioners and staff as to the execution of the respective legal documents

I have referred above to the evidence given by the partners of Church & Grace (Mr Aubusson and Mr Creech) and by the office staff from that firm who attested the execution of the respective documents (Ms Hatzimeletiou and Ms MacDonald).
Again, I accept each of those witnesses as truthful witnesses who gave credible accounts of what had happened. As I have indicated above, I find far more credible the version of events propounded by the defendant's witnesses as to the circumstances in which the enduring guardianship document, Will, Power of Attorney and Codicil were executed.

[51]

Medical records - Exhibit L

I should add here that I provisionally admitted (over objection) a bundle of hospital and medical records relating to the deceased (Ex L).
The objection to the tender of those documents was made by reference to the observations of the High Court in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [17], per French CJ, Heydon and Bell JJ, as to the consideration of the operation and the content of s 69 of the Evidence Act, which relates to business records. In particular, that s 69 of the Evidence Act renders admissible statements or asserted facts to the extent that they satisfy the criteria to which s 69 of the Evidence Act directs attention (i.e., that the representations are made in documents that are or appear to be documents kept for the purposes of, or in the ordinary course of the conduct of the business, and must be made by somebody who is a qualified person, in the sense that he or she may be taken to have, or may be presumed to have, or there is a ground for supposing they have, personal knowledge of the asserted fact which is tendered). In other words, emphasis was placed on the need to ascertain the particular asserted facts which are said to be admissible under the provision (T 460).
Further, emphasis was placed on the observation by the High Court that s 69 of the Evidence Act does not oust the opinion rule (see s 79 of the Evidence Act) (T 461). In particular, complaint was made that the hospital and medical records contained a "good deal" of material which it was said would plainly be inadmissible by reason of the operation of the opinion rule (T 461.22) (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85], per Heydon JA, as his Honour then was).
The plaintiffs pointed to the observations of Leeming JA (Basten and Gleeson JJA agreeing) in Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 from [85]. They accepted that the obligation is to tender a representation and not the document. They also pointed to what was said by his Honour (see from [89]) as to the inferences that could be drawn from the face of a document itself (and see at [92]) as to whether documents were business records and contained statements made by qualified persons.
The plaintiffs relied on Ex L not simply as expressions of opinion by qualified persons as to the deceased's treatment but also as evidence of statements made by the deceased (or others) to those treating the deceased.

[52]

Findings of fact sought by the plaintiffs

Before turning to the two ways in which the plaintiffs' claim is now made (noting that the claim based on a secret trust has not been pursued), it is relevant to set out the factual findings they seek and which they say give rise to the legal conclusions for which they contend.
Broadly, those are that: in late 2004, the plaintiffs and the deceased reached an "understanding" to the effect that they would look after her and her properties and would not renovate No 70 so as to obstruct her views; the deceased intended the plaintiffs to rely upon that understanding; the plaintiffs so acted; the deceased informed her siblings of the arrangement and also other persons (Maia, Mr Renshaw, and her two carers) of the arrangement; and the deceased repeated her assurances to the plaintiffs over a number of years, such that they could be left in no doubt as to her on-going commitment to the understanding.
As to their reliance on the said understanding, the plaintiffs contend for a finding that they: continuously looked after the deceased from late 2004 until her death; altered their plans to redevelop No 70, so as to preclude the possibility that the deceased's views would be built out; chose not to redevelop and sell No 70, and thus did not deploy it to further their plan to derive profits from its sale and reinvest those profits; instead remained at No 70 for much longer than they otherwise intended; and suffered interest on their loans to increase, until (in 2014) they were obliged to sell the Hotel (which was a steady source of income which funded their personal expenses and investments).
The plaintiffs say that the following matters corroborate their case: the context in which the promise came to be made; the recollections of members of the plaintiffs' family and others; admissions said to have been made by the deceased's siblings (Marion in her testimony and Don in the disputed conversations with him after the deceased's death); and the "extraordinarily attentive" care which the plaintiffs say they provided to the deceased in her last years which, it is contended, went on any view well beyond the "little, nameless, unremembered, acts of kindness and of love" that a "mere neighbour, or even friend," might show (here harking back to the cross-examination of Mr Moore in which reference was made to that Wordsworth's Lines Composed a Few Miles Above Tintern Abbey).

[53]

Claim in contract

As noted already, the first basis on which the plaintiffs' claim is put is that there was a testamentary contract that the deceased would leave to the plaintiffs identified property by her Will (as noted, the plaintiffs are relying here upon the principles considered in Delaforce).
As ultimately pleaded in the final iteration of the plaintiffs' statement of claim (the second further amended statement of claim filed 20 July 2018), the alleged agreement is as follows: 4. The deceased entered into an agreement with the Plaintiffs, whereby the deceased agreed she would leave a will at her death whereby the whole of the deceased's estate would be paid to the Plaintiffs ("the agreement"). Particulars (i) The agreement was oral. (ii) The agreement was entered into in about late 2004. (iii) The consideration for the claimed agreement was the deceased would make a will wholly in favour of the plaintiffs in return for their: (A) looking after the deceased during her lifetime including by attending to repairs on the deceased's properties, assisting the deceased in managing her tenants, taking the deceased to medical appointments and enabling the deceased to remain in her home as her health deteriorated and as the deceased aged; and (B) not building out the view the deceased had from her properties, being 66 and 68 Louisa Rd, Birchgrove. (C) not leaving and selling their property (which they intended to do).
The plaintiffs allege that they carried out their obligations under the agreement (as particularised at [6] of the second further amended statement of claim and further pleaded at [7A]-[7E]), and that the deceased breached the agreement by not leaving a Will solely in favour of Mr Moore, or a Will in favour of Mr Moore and Ms Andreasen (see as particularised at [7] of the second further amended statement of claim).
However, it is relevant here to note, as adverted to above, that the terms of the alleged agreement varied from iteration to iteration of the pleading.
In the original statement of claim (which was filed on 24 September 2015) the alleged agreement (at [4]) was pleaded as an agreement with Mr Moore only (though see the further pleading at [5] of the first statement of claim, which introduces Ms Andreasen into the agreement), and it was alleged that the agreement was that the deceased would leave a Will at her death whereby the whole of the deceased's estate would be paid to Mr Moore. That agreement was particularised as follows: Particulars (i) The agreement was oral. (ii) The agreement was entered into in about early 2006. (iii) The consideration for the claimed agreement was the deceased would make a will wholly in favour of David Moore and David Moore would look after the deceased during her lifetime including by attending to repairs on the deceased's properties, assisting the deceased in managing her tenants, taking the deceased to medical appointments and enabling the deceased to remain in her home as her health deteriorated and as the deceased aged.

[54]

Relevant principles

As noted by the plaintiffs, a testamentary promise is enforceable (or otherwise) according to ordinary contractual principles and, if a claimant is successful in his or her contention, as promisee he or she receives under the contract a right to an effectual transfer of the relevant asset under the promisor's Will. It is further noted that the question of whether parties intended to enter into legally binding relations is to be determined objectively, taking into account the totality of the evidence, including the state of affairs between the parties. In this regard, the plaintiffs cite Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous v Greek Orthodox Community), where the High Court said (at [24]-[25]): 24. "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts". 25. Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. [Citations omitted]

[55]

Plaintiffs' submissions

The plaintiffs say that although the language used by the parties in the present case may not be very precise, it is to be understood against the background of the circumstances that were known to them and, in particular, their respective situations as they then existed and were in prospect. Further they argue that: an agreement of this kind, made in general terms, requires good will and co-operation from both sides if it is to be successful; and that it is relevant to take into account whether, in practice, the contract was successfully implemented (because it is permissible to have regard to the subsequent conduct of the parties for the purpose of discovering whether the intention to be attributed to them was to make a binding agreement or otherwise).
The plaintiffs further say that, while it is necessary to consider the element of certainty, the arrangement will not necessarily be expected to cover every possible contingency which may arise. It is noted that in Bovaird v Frost, Brereton J (as his Honour then was) noted that one of the indicia of contractual intention in that case was that the parties were more distant relatives than, for example, husband and wife or parent and child; and it was there said that: "the presumption applies with diminishing force the remoter the familial connection" (see [53]). The plaintiffs say that this must be so particularly when the parties are merely neighbours, even if they are neighbours on very cordial terms.
Another of the indicia of contractual intention is said to be the value of the property at stake and its contemplated use in the future. It is said that the greater the value of the rights at stake, the more likely that the parties intended that their relations be regulated by a contract; and that a party is, in the ordinary course of affairs, likely to be taken to be so bound if he or she was conferring rights post mortem.
The plaintiffs say that little significance should be attached to the absence of a contemporaneous record of the bargain, noting that Devlin J in Parker v Clark [1960] 1 WLR 286 at 293 said that a lack of formality is "largely explained by the relationship between the parties; it is easier to demand formal documents from a stranger than it is from a relative and friend". The plaintiffs point in this regard to the reasoning of Lord Walker in Cobbe v Yeoman's Row Management Limited [2008] UKHL 55; [2008] 4 All ER 713 (Cobbe v Yeoman's Row Management) (at [68]): 68. In the commercial context, the claimant is typically a business person with access to legal advice and what he or she is expecting to get is a contract. In the domestic or family context, the typical claimant is not a business person and is not receiving legal advice. What he or she wants and expects to get is an interest in immovable property, often for long-term occupation as a home. The focus is not on intangible legal rights but on the tangible property which he or she expects to get. The typical domestic claimant does not stop to reflect (until disappointed expectations lead to litigation) whether some further legal transaction (such as a grant by deed, or the making of a will or codicil) is necessary to complete the promised title.

[56]

Defendant's submissions re the contract claim

The defendant submits that the plaintiffs' evidence fails to demonstrate that the deceased's statements were intended to have contractual effect. The deceased says that the plaintiffs' evidence (and Marion's evidence) shows that the statements attributed to the deceased were made in social settings and without any formality; that they were not made in writing, or otherwise recorded. It is noted that the plaintiffs do not assert that they made any contemporaneous record of those statements.
The defendant says the context is at least consistent with the deceased doing no more than acknowledging that the plaintiffs had been good to her and that she intended to make a Will in their favour. It is noted that there is no statement attributed to the deceased to the effect that she could not change her mind or revoke any such Will.
The defendant says that the plaintiffs' contention that the deceased's statements were intended to have legal effect is substantially undermined by the vague nature of those statements and of the plaintiffs' statements. It is said to be unclear what the plaintiffs were obliged to do in consideration of the deceased's claimed promise. In this regard, the defendant poses a number of rhetorical questions: if the promise of the plaintiffs was to "look after" the deceased, what were the plaintiffs obliged to do; what was to happen if the deceased, or the plaintiffs, for whatever reason, wanted or needed to move elsewhere; and if the plaintiffs failed to look after the deceased, whether she could have enforced their promise in any way. It is said that such matters which are vague or incomplete in the claimed contract cannot easily be resolved by implying terms of reasonableness. It is said that, although there are no presumptions, discussions between friends in informal circumstances inevitably face difficulties in amounting to actionable promises.
The defendant says that Mr Moore's evidence of the meeting he says occurred between the deceased, himself, and the late Mr Grace in January 2014 is inconsistent with the existence, years before of any agreement, concerning an already made, or yet to be made, Will. It is noted that Mr Moore gives evidence that he brought the deceased to see Mr Grace to have an appointment of guardian drawn up for her; that Mr Grace suggested the deceased should update her Will and she did so in the presence of Mr Moore and made no provision for him at all. The defendant says that the deceased appears to have felt free to do so and that Mr Moore made no protest on the basis of any pre-existing contract or moral obligation. It is noted that shortly afterwards, the deceased became ill and Mr Moore approached Mr Grace to draw up an enduring Power of Attorney for the deceased. Again, it is noted that there was no suggestion on that occasion by Mr Moore that a Will should be drawn up leaving all of the deceased's estate to him. Shortly afterwards, the deceased instructed Mr Grace, to Mr Moore's knowledge, to draw up a codicil to her Will. The Codicil left Mr Moore a legacy of $25,000. It is noted that Mr Grace did not tell Mr Moore of the legacy; and that Mr Moore made no mention of any contract with the deceased to make a Will in his favour.

[57]

Determination as to contract claim

In King v Adams [2016] NSWSC 1798 (at [65]-[69]), Sackar J summarised the principles relating to the formation of an oral contract, including that the existence and terms of an oral contract are to be ascertained as a question of fact; and that consideration of surrounding circumstances and post-contractual conduct is permissible when the existence or terms of an oral contract are in issue. Sackar J there referred to what was said by Spigelman CJ in County Securities Pty Limited v Challenger Group Holdings Pty Limited [2008] NSWCA 193 (at [7]_; and to what was said by Heydon JA, as his Honour then was, in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 (at [77]).
In the present case, while I accept that it is not necessary for the language used to be precise (or for all the contractual details to be considered or agreed) in order for an arrangement of the kind here alleged to be contractually binding, I am not persuaded that the matters relied upon in support of the alleged contract are here sufficient to enable me comfortably to draw that conclusion.
Addressing those matters, in summary, I consider that: the reliance placed by the plaintiffs on the arrangement being the product of forethought; the plaintiffs' need to consider the proposal carefully; and the conversations they depose to in relation to the arrangement, must all be weighed against the self-serving nature of that evidence and the absence (for the most part) of any objective corroborative evidence. As to the discussions by the deceased with others in relation to the arrangement (which I have discussed broadly in the context of the witnesses' evidence), some of those were very general in their terms (for example, the statement to Mr Condon that the deceased would be "looking after" the plaintiffs too says nothing about the way in which that would occur (let alone there being any contractual obligation to do so).
The fact that the plaintiffs performed services of the kind encompassed by the arrangement they contend was reached does not establish that this was pursuant to a binding contract.
Moreover, the fact that the terms of the alleged contract varied from iteration to iteration of the pleading causes me doubt as to the precise nature of whatever the alleged arrangement. As to the discussions in relation to the deceased's Will, and the disclosure of the arrangements to various others, they seem to me to be equally consistent with an arrangement whereby there was a testamentary promise (but revocable at any time before death).

[58]

Estoppel

The second way in which the plaintiffs bring their claim is by invoking the principles of estoppel, both proprietary and promissory estoppel (though they submit that the difference is more apparent than real when the former may preclude a party from denying that a legal relationship has arisen).

[59]

Relevant principles

Reference is made by the plaintiffs to the summary of the elements of estoppel as set out in Zupicic v La Camera Paino [2018] NSWSC 692 (Zupicic v La Camera Paino) at [67]ff, per Sackar J; and in Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106 (Zugic) at [269]ff.
In Zugic, I noted (at [269]) the continuing distinction drawn in equity between proprietary estoppel and promissory estoppel (there referring to Ashton v Pratt at [138]; Thorner v Major at [61]). It is not necessary here to delve into the proper scope of promissory estoppel to which I there referred; nor to repeat the well-known formulation of the elements common to the various doctrines of equitable estoppel (articulated by Brennan J, as his Honour then was, in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7 (Waltons Stores)); those elements being said to be a useful check, though not to be applied in every case in a mechanical fashion (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166], per Gleeson JA, Beazley P (as Her Excellency then was) and Leeming JA agreeing; and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [47], per Meagher JA, Macfarlan JA agreeing).
Insofar as the present case appears primarily to invoke the principles of proprietary estoppel, it may be noted here that there is a distinction in the authorities between proprietary estoppel by encouragement and proprietary estoppel by acquiescence or by standing by (see Milling v Hardie [2014] NSWCA 163 at [50]-[52], per Macfarlan JA, Beazley P (as Her Excellency then was) agreeing; Sidhu v Van Dyke at [2]; [77], per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ; Priestley v Priestley [2017] at [7]-[8], per Macfarlan JA; J D Heydon, M J Leeming, P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis, 2014) at [17-100]); and that the present case is one falling within the first of those categories (namely, proprietary estoppel by encouragement).
In Delaforce, it was noted that an estoppel by encouragement may arise "when 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 [his or her] detriment" (at [21], per Handley AJA). Estoppel by encouragement vindicates a plaintiff's expectations when a defendant seeks unconscionably to resile from an expectation that he or she has created (Sidhu v Van Dyke at [77]).

[60]

Plaintiffs' submissions

On their estoppel claim, reliance is placed by the plaintiffs on the same matters as relied upon for the contract claim in order to establish the requisite representation. The plaintiffs emphasise the following.
First, they point to the manner in which the requirement that a representation be clear has been treated in the authorities (referring to Galaxidis v Galaxidis at [93], per Tobias JA; Grant v Roberts [2019] NSWSC 843 at [112]-[114]; Zupicic v La Camera Paino; and Thorner v Major).
Second, as to reliance, that one does not attempt to weigh the value of a lost opportunity and compare it to the detriment that would flow to a promisee from a promisor resiling from promises (citing the observations of Nettle JA, as his Honour then was, in Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis v Donis at [20]), to the effect that the requirement of "detriment" is no narrow or technical concept and that it must be approached as part of a broad enquiry as to whether departure from a promise would be unconscionable in all the circumstances); and referring to Waddell v Waddell [2012] NSWCA 214 at [65] where Campbell JA adopted what was said by Allsop P, as his Honour then was, in Delaforce at [5]. The plaintiffs thus say that they need not prove that a lost opportunity (say, for example, approval of the Bonus Plans) would have come to fruition. Reference is here also made to the observations of Walker LJ in Gillett v Holt [2001] Ch 210 (Gillett v Holt) at 234-235 to similar effect.
It is said by the plaintiffs that here there is no need for any inference of reliance to be drawn because the plaintiffs actually structured their affairs and actually provided assistance by reference to the promises made by the deceased. It is said that a fair inference arises that they were induced to do so by the representations if those representations were material (i.e., the representations were calculated to induce the representee to act on the faith of those representations).
Third, that the measure of relief is ordinarily the substantial fulfilment of the assumptions induced by the representor (citing Delaforce; Sidhu v Van Dyke at [83]-[84], French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ; Priestley v Priestley [2017]; and E Co [a pseudonym] v Q [a pseudonym] (No 5) [2019] NSWSC 844 at [21]). It is noted that, when it comes to proprietary estoppel, there is no place for any concept of a "minimum equity" (see Giumelli v Giumelli), the plaintiffs here again citing Nettle JA in Donis v Donis at [19]. As adverted to above, the plaintiffs say that it is for the defendant to demonstrate that the claimed relief is disproportionate to the expectation which has been encouraged, noting that in Sidhu v Van Dyke at [84] the plurality cited with approval the reasoning of Nettle JA in Donis v Donis at [34]. The plaintiffs refer here also to what was said by Sackar J in Zupicic v La Camera Paino at [494]-[496]. The plaintiffs say that, consistently with the foregoing, sufficient detriment has arisen where a representee has been greatly helping family members without remuneration.

[61]

Defendant's submissions as to estoppel claim

It is further noted by the defendant that in a case of Dillwyn v Llewelyn (1862) 4 De GF & J 517 proprietary estoppel (in contradistinction to one of the Ramsden v Dyson (1866) LR 1 HL 129 kind), it is necessary for the plaintiff to establish that a person in the position of the deceased made a promise or representation, and that the plaintiff acted in reliance upon that promise or representation (see, for example, Priestley v Priestley [2017] at [7], per Macfarlan JA).
It is said that although a proprietary estoppel may not require complete certainty in the definition of the interest to which the plaintiff may be found to have become entitled, there is no reason why, in order to bind the conscience of the representor, that the requirement common to most estoppels that the representation be clear and unambiguous should not be made out (referring to Legione v Hateley at 435-6, per Mason J (as his Honour then was), and Deane J; and Zugic at [259]ff). It is said that this would appear to include a requirement that the content of promise, or the precise terms of the contract, be identified (see Zugic at [264], [277]).
As to the plaintiffs' estoppel claim, the defendant notes that the plaintiffs allege that in 2004 the deceased represented to Mr Moore that if he "undertook repairs" to the deceased's property, assisted in managing her tenants, "cared for and assisted the deceased for the rest of her lifetime and looked after her generally", "did not build out the deceased's views", and "did not leave and sell their property", the deceased would, among other things, make a Will leaving all of her estate to the plaintiffs absolutely.
The defendant says that the plaintiffs' evidence of their conversations with the deceased in social settings is consistent with the plaintiffs having "looked after" the deceased out of considerations of neighbourliness and "fellow feelings". The defendant says that the evidence does not show that the deceased knew that the plaintiffs were acting to their detriment, in reliance on the deceased's statements.
It is said that the plaintiffs have not adduced evidence to support any conclusion that they devoted themselves to the deceased on any recurring or full time basis, or that their attentions substantially impacted on their own lives. It is noted that the plaintiffs have adduced evidence from the deceased's carers, and that neither of the plaintiffs had been engaged in full time employment, although they were pursuing investment opportunities of their own.

[62]

Reply submissions

As to the principles referring to testamentary promises, the plaintiffs also refer to what was said by Brooking JA in Flinn v Flinn (at [75]-[76]): 75. Most people, I suppose, know that the maker of a will can revoke it at any time before death. How is a promise to leave property by will to be understood? Surely it will ordinarily be regarded by the promisee as a promise, not merely to make a will which can be revoked at any time before death, but to make a gift by means of an instrument which will take effect upon the donor's death. In other words, the promise of a gift by will is ordinarily to be understood as meaning just that - an effective gift by will, taking effect on death, not an ineffective, because revoked, disposition. Of course it all depends on the circumstances. If a woman says to her niece, "It's time I made a new will. I'll see the solicitor soon. I'm going to leave you my house. But don't forget that I might change my mind again and leave it to your brother next year", any claim to an equity by proprietary estoppel would very likely break down at the start. This would be on the basis there had never been a promise to leave property by will, only an intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it. 76. In the present case, on the evidence which the judge accepted, and on his findings, the promises made were, and were intended to be, and were reasonably understood and acted upon by the promisees as, promises of the making, not of a revocable testamentary instrument, but of a gift by will taking effect on death. [Emphasis in the original]
The plaintiffs' submission is that the deceased's conscience was bound upon the promise being made; alternatively, when Mr Moore showed her his amended plans in December 2004; or a reasonable time after the representations were made, when it must have been apparent to the deceased that the plaintiffs would not sell No 70; or after the plaintiffs had undertaken not insubstantial work on No 70 and (to the same measure) assisted her.
The plaintiffs also say that the defendant has not in substance rejected the proposition that the plaintiffs could succeed if they merely established detrimental reliance on a promise that they look after the deceased, and that this represents their "fall-back position" (consistent with authority, referring to Hutley JA's reasoning in Palmer v Bank of New South Wales [1973]).

[63]

Determination as to estoppel claim

At the outset, I note that there is a distinction between a testamentary contract and a proprietary estoppel; and that it is not uncommon for a claim in proprietary estoppel to succeed in circumstances where a claim based in contract has not been established. So, for example, in Gillett v Holt the contract claim was abandoned at trial (see at 224, 231, per Walker LJ); in Flinn v Flinn the promises were too uncertain to establish a binding agreement at law (see at [65]-[66], per Brooking JA); in Walton v Walton (unreported, 14 April 1994, EWCA Civ) (Walton v Walton) at [20]-[21] it was accepted for the plaintiff had always accepted that the promises could not in law amount to a contract; and in Priestley v Priestley the claim in contract failed at first instance and on appeal (Priestley v Priestley [2017] at [114]-[122], per Emmett AJA).
In a case where the relevant assurance is as to the deceased's testamentary intentions, there is inevitably a question as to whether the plaintiffs' reliance on that assurance is reasonable given the inherent revocability of Wills. It was accepted by Mr Moore in cross-examination that in principle a Will is ordinarily revocable at any time before death but his position (which I consider to be not unreasonable in the circumstances) was that it would not have been open to the deceased, had she made a Will in the plaintiffs favour, to do so in light of the arrangement that had been entered into between them (T 34.9ff).
As to the requisite certainty for a representation or promise in proprietary estoppel (as distinct from the certainty requirements for estoppel by representation or promissory estoppel), I have noted above (and elsewhere) my view that the weight of appellate opinion is that there are less stringent certainty requirements for proprietary estoppel. In particular, it may be noted that representations or promises of the following kinds have, in other cases, been considered to be sufficiently clear to give rise to an estoppel (the statement in In re Basham, decd [1986] 1 WLR 1498 at 1503, per Nugee QC sitting as a High Court judge, that "[y]ou'll lose nothing for this, doing all these jobs"; the statement in Gillett v Holt at 227, per Walker LJ, that "all this will be yours"; the oral promises in Giumelli v Giumelli at 116, per Gleeson CJ, McHugh, Gummow and Callinan JJ, by parents to their son that they would subdivide their property and transfer a parcel to him; the statement in Sullivan v Sullivan at [58], per Hodgson JA, that "[t]his is your Christmas present. [We] will look for a home of your/our choice for you to live in as long as you like"; the notation made in the consent orders in the Family Court that were considered in Delaforce at [18], per Handley AJA, that the husband "will retain the wife as a beneficiary in his will"; and the remarks referred to in Thorner v Major at [26], per Rodger LJ, being described as oblique remarks between men between whom "clear and unequivocal statements played little or no part".

[64]

Costs

The plaintiffs indicated that, if successful, they wished to be heard on two issues: first, on the question of costs and, second, as to the extent to which the defendant should be indemnified from the deceased's estate. It may well be that one or both of those issues falls away in light of the extent of the relief that has been granted. I will make directions for submissions to be made in that regard and, if possible, I will deal with those on the papers. If either party submits that an oral hearing on the remaining issue of costs is required then the reason for that should be identified in the written submissions.

[65]

Conclusion

For the reasons set out above, I make the following orders: 1. Declare that the defendant holds the properties known as No 66 and No 68 Louisa Road, Birchgrove (the properties) on trust for the plaintiffs in equal shares as tenants in common. 2. Order that within 28 days the defendant transfer the properties to the plaintiffs in equal shares as tenants in common. 3. Direct that the parties file brief written submissions as to costs (and any issue as to the extent to which the defendant should be indemnified out of the estate of the deceased) within 7 days, with a view to dealing with the issue of costs on the papers.

[66]

SCHEDULE 1 (a) Mowing her lawns. (b) Extensive maintenance and repairs to Barbara's properties over more than a decade. (c) Undertaking structural improvements or repairs to Barbara's properties over more than a decade. (d) Supporting Barbara in dealing with her properties and her tenancies, including managing her tenants' rental payments and being the first point of contact for the tenants. (e) Providing companionship, social interaction and taking Barbara out for meals (at the plaintiffs' expense). (f) Providing mental stimulation by discussing current affairs and general events. (g) Bringing Barbara home cooked meals from time to time and feeding Barbara at the plaintiffs' house on occasion. Alternatively, arranging home delivered meals to be delivered to Barbara. (h) Taking Barbara shopping. (i) Buying Barbara nutritious food and quality groceries from time to time (at the plaintiffs' expense of the plaintiffs). (j) Initially, helping Barbara pay bills; later, paying her bills on her behalf and later managing her financial affairs including funds investment and assisting and advising on her taxation obligations. (k) Advising and helping Barbara sell her car. (l) Researching specialists who could provide necessary medical treatment for Barbara, initially with her deteriorating eye sight and later for treatment and care of her cancer; and locating and enrolling Barbara in clinical trials, pathology and other testing and radiotherapy. (m) Taking Barbara to her medical and non-medical appointments and later assisting Barbara with complex medical advice and counsel on alternate medical treatments to treat her illnesses and reverse her deteriorating eye sight. (n) Making medical appointments for Barbara. (o) Obtaining Barbara's prescription medications. (p) Supervising and managing the administration of Barbara's medications. (q) Accompanying Barbara to her Funds Manager. (r) Liaising with the specialists, doctors and other medical staff when Barbara was admitted to Balmain and Royal Prince Alfred Hospital, as well as visiting her in hospital and taking her home made food in hospital regularly. (s) Making and attending appointments with the Social Worker, Occupational Therapist and other auxiliary staff in relation to Barbara's care in hospital and after her discharge from hospital. (t) Making decisions, organising and supervising cleaning, re-organising and arranging of Barbara's unit (including packing and moving her belongings to a storage facility) to enable her to return home after she was discharged from hospital. This took a week. (u) Engaging tradespeople to undertake repairs and maintenance on Barbara's properties when the plaintiffs were unable to complete the work including installing modifications in Barbara's bathroom, so that Barbara could be safely cared for at home. (v) Carrying out extensive research, then advertising, interviewing, shortlisting and engaging suitable carers to provide full time private in-home care for Barbara. (w) Coordinating, supporting, supervising and monitoring private 24 hour, 7 day a week carers to ensure Barbara was receiving high standard, in-home and professional care. (x) Researching and ordering all necessary equipment as required to meet Barbara's progressively increasing needs, such as bath aids, commode, hospital bed, walking frame and wheelchair; (y) Obtaining care supplies, such as dressings, protective sheeting and incontinence pads, monitoring and purchasing additional care aids for Barbara as needed. (z) Undertaking grocery, food and general shopping for Barbara and her in home carers. (aa) Providing, and where required, purchasing home appliances as needed such as a digital television, vacuum cleaner, heaters, fans and kitchen appliances for Barbara and her carers. (bb) Engaging and supervising a painter to paint and repair the external walls on her houses and boatsheds in order to seal in the asbestos fibro surfaces which had become exposed and to stop their deterioration. (cc) Obtaining quotes, discussing and selecting builders and materials for the rebuilding of the deck, balconies and stairs between 66 and 68 Louisa Road. (dd) Providing relief and care when the in-home carers were unavailable. (ee) Attending to employment requirements including calculating and paying wages to the in-home carers for Barbara; which in turn entailed establishing, negotiating and adjusting the wages. (ff) Arranging the general practitioner for home visits when required and attendance with Barbara during GP consultations; (gg) Providing loving and supportive end of life care for Barbara; [sic] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020

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