Nevenka Dmitrovic v Branka Kleut

INTRODUCTION

1. This is an application by two sisters, Nevenka Dmitrovic and Veselinka Dmitrovic-Gregory, against their other sister, Branka Kleut. In this judgment, I will refer to each of the three sisters and relevant family members by their first names without intending any overfamiliarity or disrespect.
2. By their application, Nevenka and Veselinka seek possession of parts of the land at a property at XX Cowper Street, Randwick, New South Wales (Cowper Street property) as the registered proprietors of the Cowper Street property, as well as damages and/or equitable compensation. Branka presently resides in a studio on the Cowper Street property and has occupied different parts of the Cowper Street property at various points in time since approximately 2001.
3. Branka has made a cross-claim in these proceedings, principally seeking: 1. a declaration that Nevenka and Veselinka hold part of their interest in the Cowper Street property on trust for her by reason of a proprietary estoppel in her favour; and 2. an extension of time for the making of an application for a family provision order under the Succession Act 2006 (NSW), and the making of such an order in her favour, for provision out of the estate or notional estate of the late Zora Dmitrovic, the mother of Nevenka, Branka and Veselinka.
4. The proceedings were originally commenced in the Common Law Division of this court. By reason of Branka's claim for a family provision order, the proceedings were transferred to the Equity Division (Succession and Probate List, now referred to as the Probate and Family Provision List) on 26 May 2023.
5. The main issues to be determined in these proceedings are: 1. Whether Nevenka and Veselinka are estopped from denying that Branka has an interest in the Cowper Street property by virtue of representations alleged to have been made to Branka by Nevenka and Zora about which Veselinka knew and assented. 2. Whether an extension of time to bring the family provision claim should be granted to Branka. 3. Whether a notional estate order should be made, the administration of Zora's estate having already been completed. 4. Whether there are grounds to make a family provision order in Branka's favour. 5. Whether an order for possession should be made in favour of Nevenka and Veselinka against Branka.
6. At the hearing, Mr D Price appeared for Nevenka and Veselinka, instructed by Adams & Co Lawyers. Mr T Morahan appeared for Branka, instructed by Lang Noonan Legal. In making closing submissions, neither counsel had access to the transcript of the oral evidence given at the hearing. In considering those submissions, I have made allowance for that fact.

Witnesses at the hearing

1. At the hearing, Nevenka and Veselinka were the principal witnesses in their own cases, each making multiple affidavits and being cross-examined. They also relied on an affidavit of costs affirmed by Sidney Barton Adams, who was not cross-examined.
2. At the hearing, Branka appeared as a witness in her own case. The other witnesses on whom Branka relied were her son, Goran Kleut, as well as a friend of Branka, Lisa Kathryn Colnan, and a former tenant of one of the units in the Cowper Street property, Kim Meddows. Each of Branka, Goran, Ms Colnan and Ms Meddows were cross-examined. Branka also relied on an affidavit of costs sworn by William Joseph Brett Noonan, who was not cross-examined.

General observations and credibility of witnesses

1. At the outset, I note that various conversations and events (and the order of those events) relevant to the issues arising for determination in these proceedings are disputed between the parties - on occasion, vehemently so and at considerable odds from each other's versions.
2. In every instance, I have endeavoured to evaluate each witness's evidence, not only in the light of their responses in the course of cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.
3. This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the principles that guide this undertaking are the following: 1. In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]-[16]. 2. Scientific research has cast doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]-[31]. 3. There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 by Ipp JA (with whom Mason P and Tobias JA agreed) who said at [27]: These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account. 1. A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21]. As observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140, by Atkin LJ at 152 (cited in Fox v Percy at [30]): … an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. 1. The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277, Bell P (as the Chief Justice then was) at [106] citing Goodrich at [16]-[27] (White JA agreeing generally at [154]-[156]); Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277, Bell CJ (Ward P and Macfarlan JA agreeing) at [102]-[103], citing White and Goodrich. 2. It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman (1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, Basten AJA at [18] (White and Adamson JJA agreeing): … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Underlying basal facts

1. Nevenka, Branka and Veselinka are sisters and the daughters of Zora. Goran is Branka's son and Zora's grandson.
2. Nevenka is 74 years of age, Branka is 71 years of age and Veselinka is 68 years of age. Goran is 49 years of age. Zora died on 15 April 2017, aged 90 years.
3. Zora died leaving a will dated 29 June 2004 (Will), under which Nevenka was appointed executrix and trustee. By the Will, Zora devised the whole of her estate to Nevenka, on trust, to be liquidated with the proceeds to be used to pay out all liabilities of the estate and the balance to go to Nevenka.
4. On 20 October 2017, probate of the Will was granted to Nevenka.
5. On 22 August 2018, the administration of Zora's estate was completed.

1983 dispute: Avoca Street property

1. At some point prior to October 1983, Zora, Nevenka, Branka and Veselinka jointly purchased a three-bedroom unit at Avoca Street Randwick, New South Wales (Avoca Street property).
2. For a period of years, the Avoca Street property served as the home of Zora, Nevenka and Veselinka. Throughout that period, Branka lived elsewhere with Goran, who was a child at that time.
3. In 1983, a dispute in respect of the Avoca Street property arose between Branka on the one hand and Nevenka, Veselinka and Zora on the other.
4. On 5 October 1983, the solicitors then acting for Branka, Hunt & Hunt Solicitors, sent a letter to Zora, Nevenka and Veselinka in relation to that dispute. Hunt & Hunt proposed that Branka be paid out of her share in the Avoca Street property and an agreement entered into in the following terms: 1. Branka to receive $3,201.00. 2. [Zora], Veselinka and Nevenka to acquire Branka's interest in the [Avoca Street] property. 3. [Zora], Veselinka and Nevenka to pay stamp duty and valuation fee. 4. [Hunt & Hunt's] legal fees to be divided four ways.
5. The evidence before me does not disclose whether a transaction in these terms was actually entered into, then or subsequently. I understand, however, that the Avoca Street property was the predecessor family property to the Cowper Street property and have inferred that it was sold sometime between October 1983 and 1988.

Cowper Street property

1. In 1988, Zora, Nevenka and Veselinka acquired the Cowper Street property as tenants-in-common in the following shares: 1. Zora - 37.5% (three-eighths share). 2. Nevenka - 37.5% (three-eighths share). 3. Veselinka - 25% (one-quarter share).
2. At the time of purchase, the Cowper Street property consisted of three units, with each unit containing two bedrooms, a kitchen and a bathroom, as well as a shared laundry and a separate garage.
3. Initially, Nevenka occupied Unit 1, Veselinka occupied Unit 2 and Zora occupied Unit 3, and each of them were regarded as "owning" the unit they occupied.
4. Veselinka later rented out Unit 2 after she moved to Quandialla in the Central West region of New South Wales and took up residence with her husband at a farm property known as Kilmarnock. From that time, Unit 2 was tenanted with the rent paid to Veselinka, including by: 1. Two brothers, Patrick Kerlin and Daniel Kerlin, from April 1999 to April 2002; and 2. Kim Meddows from about 2006 to 2021. The evidence before me indicates that Ms Meddows occupied Unit 2 in the Cowper Street property from anywhere between January 2004 (according to Nevenka) and 2007 (according to Ms Meddows) up until 2021.
5. Over the years, building works were carried out at the Cowper Street property at various times, including as follows: 1. In 1992, the existing garage was removed and four garages and a workroom constructed in its place. 2. In late 1997 or early 1998, Unit 2 was renovated. Further renovations to Unit 2 were carried out in 2022. 3. In late 1997 and again in 2010 and between 2021 and 2022, Unit 3 was renovated. 4. In 2008, a studio was constructed above the garages. The construction and fitting out of the studio took place between 2008 and 2010. 5. In 2010, a top floor was added to Unit 1.

Purchase of the Clovelly Road property by Branka

1. On 10 February 1988, Branka purchased a unit at Clovelly Road, Randwick, New South Wales (Clovelly Road property) for $110,000.
2. Branka and Goran moved into and lived at the Clovelly Road property until late 2000 or early 2001.

Zora's earlier will

1. On 8 February 1989, Zora executed a will (earlier will) under which Nevenka and Veselinka were appointed executrices.
2. By the earlier will, Zora devised and bequeathed any motor vehicle owned by her at the time of her death to Goran, and the residue of her estate to Nevenka and Veselinka in equal shares.

Zora travels overseas

1. In June 2000, Zora left Australia to travel and spend time overseas in the former Yugoslavia and parts of Europe. At that time, in the absence of Zora, Unit 3 at the Cowper Street property became vacant.

Sale of the Clovelly Road property by Branka

1. In 2000, Branka decided to renovate and sell the Clovelly Road property.
2. In late 2000 or early 2001, Branka and Goran moved out of the Clovelly Road property to allow renovations and preparations for the sale of the property to proceed. At this time, Branka and Goran (who was then 25 years old and studying), at the invitation or suggestion of Zora and/or Nevenka, moved in to the Cowper Street property. The circumstances whereby Branka and Goran came to be living at the Cowper Street property on this occasion are contested (a matter which I have dealt with in more detail below).
3. In late 2000, Nevenka assisted Branka with renovations of the Clovelly Road property at no cost to Branka. Branka conceded in cross-examination that Nevenka assisted her with the renovations "[o]ut of the goodness of her heart", because she was being a "good sister" (T20-21).
4. On 28 March 2001, Branka sold the Clovelly Road property for $320,000, $210,000 more than the $110,000 she had paid for it in 1988.

Circumstances surrounding the occupation of the Cowper Street property by Branka and Goran from late 2000/early 2001

1. Branka says that in December 2000 she moved into her mother's second bedroom in Unit 3, and Goran moved into the studio or workroom at the Cowper Street property, using Unit 3 as his base. Nevenka says this occurred in February 2001. There does not appear to be a material difference between these dates so it is not necessary to resolve that issue.
2. According to Branka, the reason that she and Goran moved into the Cowper Street property was that when she told Zora they would not have anywhere to live when the Clovelly Road property was sold, Zora responded by saying "[y]ou can come and live with me and Goran can stay in the workroom". Branka says that this exchange occurred over the telephone, Zora being overseas at the time.
3. This is disputed by Nevenka, who says that she herself offered for Branka to move in to Unit 3 during a conversation between them that occurred in early 2001. Nevenka says that when Branka expressed a desire to renovate and sell the Clovelly Road property before purchasing a new property, Nevenka suggested to Branka that she could stay in Unit 3 while Zora was overseas, noting that Branka could complete the renovations of the Clovelly Road property and find a new property to move into before Zora's return. Branka denies that a conversation of this description took place.
4. Nevenka says that shortly after this conversation with Branka, she spoke to Zora over the phone, stating that she had told Branka to move into Unit 3 while Zora was overseas, citing Branka's plans to renovate and sell the Clovelly Road property before buying a new unit with a garage. Nevenka says that Zora responded by saying, "[d]o as you think is best."
5. In her evidence, Branka stated that she was not aware of this conversation between her mother and her sister, and denied that Nevenka was responsible for any arrangement for her to move in with Zora at the Cowper Street property. In cross-examination, however, when it was put to Branka that the invitation to move in to Unit 3 at this time came from both Zora and Nevenka, she was less categorical in her denial (T20): Q. I suggest to you that the invitation was made to you by Nevenka. Do you agree with that? A. No, by Mum. Q. I suggest to you that it was also made to you by Nevenka. A. By Mum and, do I say, Nevenka as well, because I spoke with Mum over the telephone.

Purchase of Dutruc Street property by Branka

1. On 21 February 2001, Branka purchased a three-bedroom unit at Dutruc Street, Randwick, New South Wales (Dutruc Street property) for $400,000.
2. Branka used the Dutruc Street property exclusively as an investment property; the evidence before me is that neither she nor Goran ever lived in the Dutruc Streety property. Branka continued to live in Zora's guest bedroom in Unit 3 of the Cowper Street property for the whole of the period that she owned the Dutruc Street property (between February 2001 and August 2006). Neither she nor Goran paid rent to Zora, Nevenka or Veselinka as the owners of the Cowper Street property during that time.
3. Nevenka gave evidence, and Branka agreed in cross-examination (T22), that rental payments collected from tenants of the Dutruc Street property were used to pay off the mortgage over that property.

Zora returns home

1. On 20 April 2001, Zora returned to Australia from overseas.
2. At this time, Zora moved back in to Unit 3 on the Cowper Street property, where Branka was living in Zora's second bedroom.

Branka - provision of care and assistance to Zora

1. Branka asserts that during the time she and Zora were occupying Unit 3 together (between April 2001 and January 2009), and at all times Branka was living at the Cowper Street property for the period that Zora was alive, she supported Zora emotionally and in her day-to-day activities.
2. In cross-examination, Branka stated that as at 2005 (T26): A. [Zora] was getting weak, let's put it that way, because she was already 70 years old. Q. She [Zora] didn't require assistance from anyone at that stage, did she? A. She required assistance, you know, in housework. Q. I suggest to you that - A. Going shopping because she stopped driving the car at the age of 70 already. When I asked her, "Why did you stop, mum? Why didn't you continue driving?", she said, "I don't feel confident". So, yes, she did require assistance.
3. In cross-examination, Goran described the state of Zora's health and care needs as at 2006 as follows (T54): Q. Now, in 2006, your grandmother was still living quite independently, wasn't she? A. What do you mean by "independently"? Q. She didn't need a carer, did she? A. She didn't need a carer at that time, no. Q. And she didn't require assistance with her activities of daily life? A. Yes, she did. Q. She did, did she? A. Yeah. Q. And in what way did she require that assistance? A. She needed assistance walking and getting around. She needed lifts. I would go to the shops for her, all sorts of assistance. She was old.
4. Both Nevenka and Veselinka deny that Branka assisted Zora during the period from 2000 to Zora's death in 2017. Nevenka gave evidence that prior to 2010 (when Zora became ill), Zora did not require assistance from anyone and did her own shopping, cleaning and cooking.
5. I am of the view that while living at the Cowper Street property during the relevant period, Branka likely assisted her mother in various ways. This may well have included driving her to the shops and assisting her with housework. In all likelihood, and having regard to the surrounding circumstances, I consider that Zora's need for care and Branka's contribution to Zora's care was modest. I do not accept the evidence of Nevenka and Veselinka that their mother was entirely self-sufficient and received no assistance from Branka while they were living together in Unit 3. Nor am I persuaded by Branka's depiction of Zora's infirmity and frailty, which appears to be overstated. With regard to Goran's evidence of the same events, I am mindful that his natural tendency in these proceedings was to align his evidence with that of his mother, Branka.

Renovations of Unit 2 at the Cowper Street property

1. According to Branka, shortly after moving in to Unit 3 at the Cowper Street property, the following sequence of events took place: 1. Unit 2 (the unit "owned" by Veselinka) became vacant. 2. Nevenka asked Branka if she would help with renovating Veselinka's unit. 3. Branka agreed to assist with renovating Unit 2. 4. Nevenka and Branka proceeded to demolish the existing kitchen in Unit 2 and install a new kitchen, replace the cupboards, paint Unit 2 and engage tradespeople to perform electrical and plumbing work in Unit 2. 5. These renovations were done to prepare Unit 2 for a new tenant.
2. In cross-examination, Branka was unable to give an exact date or date range (including the year) within which the above conversation with Nevenka or the Unit 2 renovations themselves occurred. She instead asserted that her recollection was tied to other events, maintaining that Unit 2 was renovated prior to Ms Meddows moving in to and occupying Unit 2 as a tenant (T17-18). The evidence before me is that Ms Meddows moved in to Unit 2 at the very earliest in January 2004, and the previous tenancy of the Kerlin brothers had ended in April 2002. On Branka's version of events, this would place the renovations of Unit 2 sometime between April 2002 and January 2004.
3. Both Nevenka and Veselinka deny that Branka assisted in the renovation of Unit 2 when she moved in with Zora. According to Nevenka and Veselinka, the relevant Unit 2 renovations predated Branka moving in to Unit 3 on the Cowper Street property. Veselinka states that Unit 2 was occupied by two brothers (presumably referring to the Kerlin brothers) at the time Branka moved in to Unit 3, and that the two brothers rented Unit 2 between April 1999 and April 2002. Nevenka states that Unit 2 was renovated in or around late 1997 or early 1998, before Branka moved in to Unit 3 (in late 2000 or early 2001).
4. No evidence (documentary or otherwise) capable of demonstrating conclusively the dates and durations of the tenancies at Unit 2 was put before me. Nor was I presented with documentation to verify the dates or date range during which renovations of Unit 2 were carried out. I am therefore deprived of a fairly straightforward means of testing the veracity of the evidence given by each of Branka and Nevenka and Veselinka on this matter.
5. I have made findings below in relation to Branka's assertions that she contributed and assisted with renovations of the different units on the Cowper Street property at various points in time.

Renovations of Unit 3 (and generally) at the Cowper Street property

1. According to Branka, upon completing the renovations to Unit 2, she and Nevenka proceeded to renovate Unit 3 (their mother's unit). Branka states that this work consisted of laying cork tiles in the kitchen, tiling the laundry, sanding and polishing the timber floors, and painting the walls in Unit 3. Branka says that she and Zora continued to live in Unit 3 while these renovations were underway.
2. In cross-examination, Branka was again unable to give an exact date or date range (including the year) within which these renovations occurred, but said that she and Nevenka conducted renovations to Unit 3 on two separate occasions (T22).
3. Nevenka and Veselinka categorically deny that Branka was involved in any of the renovations to the units at the Cowper Street property. Moreover, in response to Branka's evidence, Nevenka states that Unit 3 was in fact renovated in late 1997 and again in 2010. For her part, Veselinka states that she and Nevenka employed tradespeople to carry out renovations at the property well before Branka began living in Unit 3.
4. In this connection, Veselinka gave evidence relating to the state of Branka's physical health (and, by implication, her capacity to assist with renovations) in or around 2001. Veselinka says that around the time Branka moved in to Unit 3 at the Cowper Street property, Branka (who at that stage was working full-time) told Veselinka that she was unwell, suffering from emphysema, lupus and Sjogren's disease, and constantly tired, out of breath and struggling to work. This evidence from Veselinka is neither corroborated nor directly contradicted; however, Branka, at one point in cross-examination, seemed to develop something of a counternarrative, suggesting that her staying at the Cowper Street property was to the advantage of her family precisely because of her capacity for physical labour, her strength and her health (T23).
5. Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the Cowper Street property on multiple occasions. This included, he says, attending to maintenance and numerous jobs in Unit 3 as well as renovations to Nevenka's unit, Unit 1.
6. Nevenka denies that she and Branka worked on the Cowper Street property together, and denies that Unit 1 was renovated during this time. Veselinka also denies that Branka renovated or assisted with the renovation of Unit 1 during this period.

Branka's alleged intention to move into the Dutruc Street property

1. According to Branka, when the renovations of Unit 3 were nearing completion, she intended to move out of the Cowper Street property and into the Dutruc Street property. Branka states that Zora said to her, "[w]hy can't you stay longer? You can rent your place and be able to help Goran financially while he is studying". Branka says that Zora was happy for Branka and Goran to stay with her and Nevenka because they lived as a family unit, got on well and supported each other.
2. In affidavit evidence, Branka suggested that this (the first) time Zora and Nevenka convinced her to stay living at the Cowper Street property was in 2004. In cross-examination, Branka was less certain and gave a range of possible dates between 2001 and 2006 (T23-26), noting that Goran was undertaking further study in the dramatic arts at the time (T25).
3. Branka was cross-examined on this aspect of her evidence, and in particular her reasons for remaining at the Cowper Street property at this time (T23). Branka maintained that Zora asked her to stay, that Zora always wanted her to stay in the family, and that it was to the family's advantage that she stayed: Q. You say that your mother said to you, "Why can't you stay longer?" A. Yes, Mum always wanted me to stay in the family. Q. She said, "You can rent your place." A. Yes. Q. "And be able to help Goran financially while he is studying." A. Yes, correct. Q. So your mother knew that you had the apartment at Dutruc Street, did she? A. Yes, she did. Q. And there was no reason why you couldn't have moved out at that time, was there? A. No particular reason, other than, you know, being asked by Mum, you know, and yeah, that will help Goran and so on, yeah. Q. You agreed to stay because you thought it was to your advantage to stay, didn't you? A. It was to my advantage, but also to the advantage of my family. Q. So it was a double advantage to you, was it? A. Not to me, but to the family. Q. To you and to Goran. A. Come on, you're twisting it, sir. My staying there was also to the advantage of my family because I was staying there and helping them. I've always helped in the family and carried the biggest burden because I was the tallest and the strongest in the family, and the healthiest.
4. For her part, Nevenka denies that Branka was living with her as a family and that Branka was helping her, saying that they did not spend time together other than in the context of Nevenka's visits to her mother while Branka was living in Unit 3 or when Zora later moved into Nevenka's unit, Unit 1. Nevenka says that from 2001 to 2017 Branka and Zora hardly spoke, Branka was of the view that they had nothing to talk about, and Zora told her on one occasion that they had not spoken for a week.

The Will

1. On 29 June 2004, Zora executed the Will. The Will is in the following terms: 1 I HEREBY REVOKE all former wills and testamentary dispositions heretofore made by me and declare this to be my last Will and Testament. 2 I APPOINT my daughter NEVENKA DMITROVIC (hereinafter called my "Trustee") Executrix and Trustee of this my Will PROVIDED HOWEVER in the event that the said NEVENKA DMITROVIC shall be unable or unwilling to be my Trustee then I APPOINT my daughter BRANKA KLEUT Executrix and Trustee of this my Will in her place. 3 I GIVE DEVISE AND BEQUEATH the whole of my estate and property both real and personal of whatsoever kind and wheresoever situate unto my Trustee UPON TRUST to sell call in and convert into money such part or parts thereof as may not consist of money and TO HOLD the net proceeds of such sale calling in and conversion together with such part or parts of my estate and property as aforesaid as may consist of money or may for the time being remain unconverted upon the following further trusts namely: 3.1 To pay thereout all my just debts funeral and testamentary expenses including all probate death and estate duties of whatsoever kind which may be payable in my estate or in any way in consequence of my death. 3.2 To pay the balance then remaining unto my daughter NEVENKA DMITROVIC. …
2. I consider that nothing turns on the appointment of Branka as an alternative executrix and trustee in the Will if Nevenka was unable or unwilling to perform those roles.

Purchase and sale of the Alison Road property by Branka

1. On 1 May 2005, Branka purchased a studio apartment at Alison Road, Kensington, New South Wales (Alison Road property) for $185,000.
2. Neither Branka nor Goran ever lived at the Alison Road property. I infer from this that it was used solely as an investment property.
3. On 13 October 2006, Branka sold the Alison Road property for $200,000, $15,000 more than the $185,000 she paid for it in May 2005.

Sale of the Dutruc Street property by Branka, purchase of the King Street property by Branka and Goran moves into the King Street property

1. On 15 August 2006, Branka sold the Dutruc Street property for $600,000, $200,000 more than the $400,000 she paid for it in February 2001. That same day, Branka purchased a two-bedroom unit at King Street, Randwick, New South Wales (King Street property) for $435,000.
2. According to Goran, Branka purchased the King Street property for him to live in and he moved out of the Cowper Street property and into the King Street property sometime after it was purchased.
3. Under cross-examination, Goran gave evidence that while he was living at the King Street property he paid rent to Branka over a discrete period of three months, and after that and otherwise only assisted his mother however and whenever he could (T58): Q. Whilst you were living at King Street Randwick, did you pay any rents to your mother? A. King Street, there was a period where me and a friend of mine were there, we were paying rent. He moved out about three months later, and then I'd assist with my mum however I can. We didn't have a rent per se agreement, but, yeah.

Branka's alleged intention to move into the King Street property

1. According to Branka, she intended to move into the King Street property along with Goran after purchasing it in August 2006, but Zora and Nevenka said they wanted her to continue to stay and live with them. Branka says that the three of them had the following exchange, which Nevenka denies: Branka: I am not going to live in mum's second bedroom and I have all my furniture stored in the garage. Nevenka: [W]hy don't you let Goran move out and into the unit, and you stay here living with us? Branka: No, it is time for me to move out and live independently again. Zora: [N]o, we get on so well, you must stay here with us. Nevenka: I want you to stay and help me look after mum. You should let Goran get more independent and you can stay and help us. We are two lonely women living in this large house by ourselves. Nevenka/Zora: We would feel more secure with you living here and you can help us.
2. Goran says that around this time, Branka discussed with him her decision to move out of the Cowper Street property and into a place of her own. Goran also says that he visited the Cowper Street property regularly after moving out and Zora, Nevenka and Branka all appeared to get on very well together and lived as a family. For her part, Nevenka denies that Goran visited regularly after moving out.
3. Nevenka agrees that shortly after Branka purchased the King Street property Branka expressed an intention to move out of the Cowper Street property and into the King Street property, but says that a few weeks later, Branka said to her words to the effect of, "I will stay longer to save more money, I don't want to pay a mortgage all my life."
4. Branka also says that Zora and Nevenka made her feel guilty for wanting to move away, and that they had the following exchange, which Nevenka also denies: Nevenka and Zora: We will feel more secure if you were here and it will help Goran independently. Nevenka: You can help me looking after mum, she is getting older and will need looking after.
5. All of this is contested by Nevenka and Veselinka. Nevenka says that in 2006, Zora lived independently and did not require anyone to look after her. Veselinka says that Zora did not have any health issues or require care at that time. Up until 2010, Nevenka says that Zora did not require assistance as she did her own shopping, cleaning and cooking and she regularly socialised with friends and family.

Nevenka's first alleged studio representation

1. Around this time, Branka says that she articulated to Nevenka a disinclination to continue staying in Zora's second bedroom in Unit 3 with her furniture in the garage. Branka says that she and Nevenka proceeded to have the following exchange: Nevenka: I will build a studio over the garage and you can live there. It will be more comfortable for you. Branka: Why would you want to do that? Nevenka: So that you will agree to stay and live with us. (Nevenka's first alleged studio representation)
2. Nevenka denies that an exchange along these lines ever took place. She was not challenged on this denial in the course of cross-examination.
3. Branka suggests that Nevenka's offer to build the studio above the garages at the Cowper Street property was made as an "inducement" for Branka to remain living at the Cowper Street property. Branka also says that around this time Nevenka told her that Branka staying with them would make them feel "more secure" (T28).
4. Branka was cross-examined on her evidence in relation to Nevenka's first alleged studio representation, and the reasons she says the offer to build the studio was made (T33-34). She conceded that in 2006, she had no specific need for a studio apartment to be built for her, but stated that Nevenka made the offer because both she and Zora wanted Branka to remain living with them. Branka said that for that reason, and because they were sisters, she did not consider it "extraordinary" for Nevenka to have made that offer.
5. For his part, Goran gave evidence that he was present during conversations where words to the above effect (including Nevenka's first alleged studio representation) were said. Goran also says he was present on several occasions when Zora and Nevenka discussed Branka's desire to move out.
6. Goran further asserts that on several occasions he was present during conversations about the construction of a studio above the garage, which was intended to serve as Branka's residence. Goran also says that both Zora and Nevenka said the following to him, which Nevenka denies: We are building the studio for your mother. This is going to be for your mother to move into so she will have a place of her own.
7. Goran was cross-examined on this matter, and in particular about the purpose for which the studio was being built and relevant representations alleged to have been made at this time (T55-57): Q. In about 2006, Nevenka announced to the family that she was going to build a studio over the garages; didn't she? A. There was no announcement to the family as such. I was told on a number of occasions through certain people that my mum, my grandma, [Nevenka], that they were building, they were planning on doing it, the planning stages were there for a while. I even helped with some of the blueprints, yeah. I was aware that it was happening. … Q. You give evidence that the deceased, your grandmother, and Nevenka said to you, "This is going to be for your mother to move into, so she will have a place of her own". A. Yes. Q. Well, she had a place of her own at that time; didn't she? A. That was supposed to be for her, the place they were making. Q. But she didn't need a place to move into because she had her own property [the King Street property]; did she not? A. I was living in that property, and she needed a place to live. Q. Well, there's no reason that she couldn't have lived in her property; is there? A. Because I was there. Q. Well, there's no reason you could not have gone and got your own property; is there? A. I couldn't afford one at the time. … Q. I suggest that it was not said that this [the studio] was going to be for your mother to move into so she would have a place of her own. A. You know, I would proudly say that that was built for my mum. Q. Again, I suggest to you that, at that time, Nevenka and your grandmother both knew that your mother owned other properties and could move into those properties. Do you agree with that? A. They knew that she owned other properties, but they wanted her close with them.

Zora's alleged promise

1. According to Branka, at the time she was speaking with Nevenka about Nevenka and Zora wanting her to stay at the property, Zora was present and they had the following further exchange (Zora's alleged promise): Zora: You won't have to worry about your future living arrangements because I will leave you one third of my share in the house so that you will always have somewhere to live. Branka: Alright I will stay, if you are going to build a studio and that I will have the security knowing that I will get a part ownership of the house.
2. Goran says that on more than one occasion, he witnessed Zora tell Branka that she need not be concerned about her living arrangements as she would have the studio and one-third of Zora's share of the Cowper Street property.
3. This is contested by Nevenka and Veselinka, who say that they never heard or observed Zora talk about the Will or state that Branka would receive the studio or a third of her share in the Cowper Street property. Veselinka also says that she, Nevenka and Zora never discussed leaving any part of the Cowper Street property to anyone.
4. Branka says that following Zora's alleged promise, she believed that she would have an exclusive right to occupy the studio for as long as she wished and that Zora would leave her an equal share of her interest in the Cowper Street property. In cross-examination (T31), when asked whether she was concerned that receiving one-third of Zora's three-eighths share in the Cowper Streety property might not translate into an entitlement to live in the house, Branka indicated that she did not have any such concern.
5. Under cross-examination (T32), Branka responded to questions put to her about why she made no attempts to confirm that Zora had taken steps to action her promise. Branka leaned, once more, on the fact of the mother-daughter relationship, appearing to suggest that this supplied a self-evident and stable basis for the making of Zora's alleged promise: Q. Did you ask your mother if she had made a will to reflect that promise to you? A. No, I didn't ask her about it. Q. Weren't you concerned to ensure that she was going to do what she said she was going to do? A. How can I pressure her to show me the will? I'm sorry, but that just wasn't acceptable in my way of thinking, sir. I know what my mother promised and why wouldn't she? I'm her daughter as well. Q. So you didn't ask your mother to see her will? A. No, I didn't ask to see her will. Q. Did you ask if she was going to make a fresh will? A. No, I wasn't pressuring my mother for a will or to have me included in the will as verbal she has promised or stated. I just thought it just makes sense. I'm her daughter.

Development approval for the studio is obtained

1. In around 2006 or early 2007, Nevenka applied for development approval for the construction of the studio on the Cowper Street property (development application).
2. On 2 May 2007, a proposed development plan for the construction of a first-floor studio above the existing garages on the Cowper Street property dated July 2006 (development plan) was received by Randwick City Council. The development plan, which had been produced by High Design, a professional architectural design and drafting service, listed Nevenka as the client.
3. On 5 June 2007, the development application was approved by Randwick City Council.
4. The notice of determination for the development application, issued by letter dated 6 June 2007 to Nevenka, included the following details: Property Address: XX Cowper Street, RANDWICK NSW 2031 Description of Work: Construction of first floor studio above existing garages fronting Sydney Street. Determination: Approved Determination Date: 5 June 2007 Consent to operate from: 6 June 2007 Consent to lapse on: 6 June 2012 …
5. Under the subheading 'Conditions of consent', the notice of determination relevantly stipulated: 5. No cooking facilities or sanitary fittings other than those indicated on the approved plans are to be installed in the premises without the prior written consent of the Council. … 7. The studio located above the garages to Sydney Street shall not be let, adapted or used for separate residential occupation or commercial purposes at any time. … 20. An Occupation Certificate must be obtained […] prior to any occupation of the building work encompassed in this development consent … An Occupation Certificate must not be issued for the development if the development is inconsistent with the development consent. The requirements of the Environmental Planning & Assessment Act 1979 and conditions of the development consent must be satisfied prior to the issuing of an occupation certificate. …
6. According to Branka, she and Nevenka prepared the initial and revised plans for development approval of the studio. This is contested by Nevenka, who says that she prepared the initial draft plans and then instructed architects who completed the revised plan for the studio, which was then resubmitted for development approval.
7. In cross-examination, Branka accepted that she was not the client instructing the architects and that Nevenka dealt with the architects, but maintained that she, jointly with Nevenka, made decisions about the studio and its design and construction (T37).

Construction of the studio

1. Between the latter half of 2007 and 2008, the studio was constructed.
2. Nevenka says that from 2008 to 2010, she was the owner-builder of the studio. Nevenka says she undertook various building courses to become an owner-builder and also had meetings with engineers, builders and tradespeople regarding the building work and materials to be used.
3. According to Branka, she and Nevenka completed various work in the studio including tiling, painting, laying floorboards and skirting, fitting a door to the bathroom, installing door frames and architraves, and sanding and polishing the floors. Branka says that Nevenka paid for construction of the studio, but she paid for the flooring, tiling, electrical, fixtures and taps.
4. This is contested by Nevenka, who says that Branka did not complete any work on the studio other than helping her install the floorboards and did not pay for any materials, stating that she herself purchased everything for the studio at auctions. Nevenka did concede that Branka occasionally assisted her with some minor work and on one occasion helped polish the floor in the studio.
5. In cross-examination, Branka maintained that she assisted Nevenka with work on the studio and that she paid for an invoice of 18 June 2008 for granite tiles that was addressed to Nevenka in cash (T34-35). She also said that she gave Nevenka cash on a number of occasions, and that any receipts in respect of things that she had paid for in connection with the construction of the studio (T34): … I've given to Nevenka as per her request so that she can claim it against the tax as capital, whatever - or whatever.
6. In cross-examination, when it was put to Branka that there was no requirement to contribute anything (in terms of finance) towards the construction of the studio as a condition of it being built, Branka gave the following responses (T35): A requirement, as if someone forced me, there wasn't such a thing, but yes, "I'll pay for this, I'll pay for that, you pay for this, you pay for that", that's how it went. … There were no conditions other than just stay living with them and help around what I had been doing. What I had been doing even before I came and live in the house, I've been helping the family.
7. Ms Meddows gave evidence that during her time living in Unit 2 at the Cowper Street property (including during this period), she was in contact with Zora, Nevenka and Branka on an almost daily basis and that on most days she witnessed Branka and Nevenka working on the studio and performing tasks including painting, installing windows, laying timber floors and tiling. Ms Meddows also stated in her affidavit evidence that she witnessed Branka and Nevenka 'put[ting] in the fixtures' in the studio.

Purchase of the Don Juan Avenue property by Branka

1. On 19 December 2008, Branka purchased a one-bedroom unit at Don Juan Avenue, Randwick, New South Wales (Don Juan Avenue property) for $370,000.
2. Goran says that he moved in to the Don Juan Avenue property shortly after it was purchased. Branka says that Goran moving in to the Don Juan Avenue property was what was contemplated at that time. She made the following statements in cross-examination (T38): Q. You had invited him to move into [the Don Juan Avenue property], had you? A. Yes. That was the arrangement, family arrangement. Q. You could have said to him, "No, I'm going to move in there." A. No, I couldn't. Q. Why could you not have done that? A. Because I was staying with the family with the proviso that Goran can stay in my unit.
3. In cross-examination, Branka gave the following further evidence as to the occupation of the Don Juan Avenue property by Goran and his family, noting that they did not pay rent but covered some utility bills, and that there was no mortgage over the property (T40-41): Q. At some point, your son and his partner moved into the Don Juan apartment. Is that right? A. My son lived in Don Juan Avenue, and when his partner got pregnant, she came and lived with my son in the unit and their son also was born and lived with them in that unit as well. Q. When did your son move into the Don Juan Avenue apartment? A. You just told me the year and the month when the Don Juan was bought, that's when he moved in. And sorry, I don't remember it, but you've just told me the time, date, so yeah. Q. Just before Christmas in 2008. Does that accord with your recollection? A. Okay, let's say - let's say it is correct because you're looking at the information. Q. When did your son's partner move into the unit? A. Well, [Goran's son] was born 30 April - I think it's 30 April - 2012, so she moved in with him prior to that. Q. I think you've told us that the Don Juan Avenue unit was a one-bedroom unit. A. Yes, it was. Q. Was Goran and his partner paying rent to you to live in that apartment? A. No, they were not paying rent, but they were paying expenses regarding the unit. Q. Was there a mortgage on the property? A. No. Q. The expenses that you refer to, are they the strata fees? A. Strata, council rates, was it - water rates, yeah. Q. So you had no financial expenditure connected to owning that property. Is that right? A. That is correct.

Occupation certificate for the studio obtained

1. On 24 December 2008, an occupation certificate for the studio was issued to Nevenka by Randwick City Council.

Branka moves into the studio

1. In January 2009, Branka moved out of Unit 3 and into the studio on the Cowper Street property.
2. At this time, according to Nevenka, Branka asked Nevenka if she could sleep in the studio at the Cowper Street property. Nevenka says that at this stage the painting of the studio had not yet been finished, and Branka offered to finish the painting. Nevenka says that she agreed that Branka could stay in the studio if Branka did the painting, contributed to the payment of utilities (water, council rates, electricity and gas), provided help in the garden, and cleaned around the house, and on the condition that she left the studio when Veselinka came to Sydney or if Nevenka needed it for anything. Branka denies that a conversation of this description took place.
3. According to Branka, after moving in to the studio she continued to care for Zora and she, Zora and Nevenka lived in harmony, enjoying spending time together and each doing "what [they] could to maintain the property, clean etc".
4. This is disputed by Nevenka and Veselinka. Nevenka says that from 2001 to 2017, she observed that Branka rarely spoke at length with Zora and that on one occasion Zora told her that it had been a week since Zora and Branka had spoken. Veselinka denies that the family lived together in harmony at this time.
5. Under cross-examination (T91-92), Nevenka agreed that she took no steps around this time to have Branka leave the property. Nevenka resisted any suggestion that Branka had a right to occupy the studio, stating that it was a case of Nevenka allowing Branka to be there subject to particular conditions, including that she complete the painting, perform gardening and maintenance work, and pay bills, and vacate the premises for Veselinka or other visitors as required. When asked about whether Branka complied with those conditions, Nevenka responded (T92): A. She didn't, except her studio was always available for Veselinka when she came with her family. Q. Well, if she didn't comply with the conditions, why didn't you throw her out? A. I wanted. Q. You wanted to? A. Yes, and I told her, but she cried to mum.
6. In cross-examination, Veselinka accepted that on occasion when she came to Sydney she asked for Branka's permission to stay in the studio, as opposed to Branka being obliged to vacate the studio so that she could stay there (T128-130). Veselinka was taken to a series of text messages exchanged in May 2021 demonstrating these matters, including the following: 1. On 4 May 2021 at 8:44am, Veselinka texted Branka: Good morning Branka. How r u today. Im planning to come over in a week or two to paint and clean up my flat. Could I please stay with u for a few days. 1. That same day at 8:57am, Branka replied as follows: Most definitely, Goran is again at Byron, he is still here but hopefully he will move into the unit. If not, u and I will share the sofa bed. … 1. On 16 May 2021 at 1:08pm, Veselinka texted Branka: … Im coming to Sydney on 18 May Tuesday night. I will come by taxi. It is still okay for me to stay overnight, is it? If Goran is back, I will get myself a fold up bed and sleep in my flat until I finish the work. 1. At 2:07pm, Branka responded: … Goran is back but still in the studio. You can stay with me but it might be a bit crowded a[t] night. …

Branka's contributions to maintenance and upkeep of the Cowper Street property and renovations of the Cowper Street property

1. Nevenka and Veselinka say that at all relevant times while she was living at the Cowper Street property, Branka never provided any assistance with maintenance or cleaning of the property. Nevenka also says that Branka never made any contribution towards water bills or council rates and only made occasional contributions to electricity and gas bills.
2. Against this, Goran gave evidence that while he was living at the Cowper Street property between approximately 2001 and August 2006, he witnessed Branka and Nevenka working on the property on multiple occasions. This included, he says, attending to general property maintenance and numerous jobs in Zora's unit as well as renovations to Nevenka's unit.
3. Similarly, Ms Meddows gave evidence that while she was living in Unit 2 on the Cowper Street property, she observed Branka regularly assisting with general maintenance of the property and of Unit 2, either by herself or with Nevenka, including house repairs, gardening, tending to the lawns, painting and cleaning the gutters.
4. As noted above, Nevenka and Veselinka strenuously deny that Branka was involved in any of the renovations or improvements to the units on the Cowper Street property. Branka maintains that she assisted with renovations to all three units on the property at different times, including Unit 2 shortly after she moved into the Cowper Street property in or around 2001, Unit 3 thereafter, and Unit 1 in 2010 (the details of which are set out below), as well as with the construction of the studio.
5. Ms Colnan states that over a period of years when she would come to visit Branka at the Cowper Street property on weekends, she witnessed Branka assisting in the renovations of at least two apartments on the property. She says that on several occasions she observed Branka painting, laying timber floors and tiling and installing fixtures and fittings.
6. In cross-examination, Ms Colnan conceded that she did not herself witness Branka installing fixtures or laying tiles at the Cowper Street property, but that Branka and Nevenka told her they were doing it together. Ms Colnan also said that she witnessed Branka laying timber floors on one occasion and painting on two or three occasions, and said that when she would visit, it was clear to her that Branka had been tiling or carrying out other work on the property because (T70): … she'd have paint on her, and she'd have glue from tiling, and yeah. She wasn't always very clean, so I knew she'd been working on the house.

Sale of the King Street property by Branka

1. On 15 July 2009, Branka sold the King Street property for $565,000, $130,000 more than the $435,000 she paid for it in August 2006. By this time, Goran was living in the Don Juan Avenue property.

Renovations of Unit 1

1. In 2010, a top floor was added to Unit 1.
2. According to Branka, these works included extending Nevenka's unit by building an additional floor and remodelling the existing floor. Branka says that Nevenka paid for the construction, plumbing and electrical works involved in this set of renovations, but that she undertook most of the other work including tiling of the existing floor of the apartment, installing doors, tiling the walls, painting, sanding and polishing floors and stairs. She gave evidence that at one point in the course of renovating Nevenka's unit, she fell from a ladder and cracked several ribs.
3. Goran gave evidence that he observed Branka and Nevenka together renovating Nevenka's unit.
4. Nevenka denies that Branka provided any assistance with the renovation of her unit insofar as she denies any substantive involvement by Branka in renovations to the Cowper Street property.
5. Branka says she was happy to assist with the renovations of Nevenka's unit as they were family and she believed she had a place to live for as long as she liked.
6. Given my finding that it is likely that Branka assisted with earlier renovations, I consider that it is also likely that Branka undertook work on the renovations of Nevenka's unit.

Unit 3: Further renovations

1. Nevenka gave evidence that Unit 3 underwent further renovations in 2010.

Zora's declining health

1. Veselinka and Nevenka say that in around 2010, Zora became ill with emphysema, and later with gout and heart problems, and Nevenka became Zora's full-time carer. At this point in time, Nevenka was not working, having retired in late 2006. Branka was still working full-time.
2. Nevenka says that in early 2011, Zora moved into her unit (Unit 1) as Zora was becoming very sick and was increasingly dependent on her for assistance. Nevenka says that she organised medical and other appointments for Zora and cared for Zora until her death in 2017.
3. Nevenka and Veselinka assert that Branka had no role in caring for Zora from 2010 until Zora's death in 2017.
4. Branka gave no evidence as to the level of care she personally provided to Zora from this point in time until Zora's death in 2017 other than to say that Zora was in need of assistance at all relevant times while Branka was living at the Cowper Street property and that she rendered such assistance. Branka was not cross-examined on this matter.
5. My findings above that it is likely that Branka assisted Zora in various ways while living at the Cowper Street property during the relevant period are also relevant to the time that Zora's health was declining, but I consider that it is likely that the vast bulk of the care for Zora was undertaken by Nevenka given that Zora was living with her in Unit 1 and Branka was in full-time employment.

Branka moves into Nevenka's guest bedroom in Unit 1

1. According to Nevenka, in November 2012 Branka moved out of the studio and into the guest bedroom of Unit 1 and remained there until 10 March 2021, a period of just over eight years. Nevenka says that Branka moved into her guest bedroom as Nevenka had agreed to look after Goran's son, on the condition that Branka would sleep in her spare room and "look after him at night so that [she (Nevenka)] could have a good night's sleep."
2. Nevenka says that Branka lived in the studio for short periods of time while Branka was sick in 2015 or 2016 and when Zora passed away in 2017, but otherwise occupied Unit 1, noting that Branka's clothes remained in her spare room.
3. By Nevenka's account, the living arrangements at the Cowper Street property at this time were as follows (T103-105): 1. Zora, Nevenka and Branka all lived in Unit 1 (Nevenka's unit); 2. Nevenka slept in the main bedroom and Branka slept in the guest bedroom (upstairs); 3. Zora slept in an open area (downstairs); 4. Unit 2 was occupied by tenant(s); 5. Unit 3 (Zora's unit) was occupied by tenant(s); and 6. the studio was initially unoccupied but was later occupied by Goran and his family in 2019 (a matter addressed in more detail below).
4. During cross-examination, Branka initially agreed that she moved into Nevenka's unit in 2012, but proceeded to dispute the relevant dates put to her. She characterised the circumstances in which she came to be living in Unit 1 on the Cowper Street property as follows, agreeing that the arrangement had to do with Nevenka looking after Goran's young son but describing her occupation of Unit 1 as short-term and/or occasional (T39-40): Q. You then moved back into Nevenka's unit in 2012. Correct? A. Yes. Q. And that was in 2012? A. No. Why - no. I don't know where you're getting that, but anyway, no. Q. I suggest to you that that was because Goran had asked Nevenka to look after his son for him because his wife was going back - perhaps it wasn't his wife, his partner was going back to work full time. A. My sister looked after my grandson on occasions, and on those occasions when [Goran's son] stayed overnight, I then stayed with him in the second bedroom so that he wouldn't be a burden to Nevenka. I could have had him in my studio, but Nevenka insisted and mum that he sleeps there. And as I said, on the night that he stayed there, I slept with him in the same room so that Nevenka wouldn't have a burden. Q. I suggest to you that after you moved back into Nevenka's unit in 2012, you remained living there until March 2021. A. That is not true. That is not true, sir. Wherever you are getting that information, it is wrong. Q. The reason that you were not living in the unit is that it didn't have a kitchen in it. That's correct, isn't it? A. It had a kitchenette. Q. Didn't have cooking facilities, did it? A. Nevenka later on, I must say, Nevenka bought that stove and I paid for the installation of it. But Nevenka paid for it. So there was a stove in there. Still is.

Zora's death and Nevenka's second alleged studio representation

1. On 15 April 2017, Zora died leaving the Will and an estate worth $1.2 million.
2. Branka says that a short time after Zora's death, she had an exchange with Nevenka where Nevenka informed her that Nevenka was the sole beneficiary named in the Will; that Branka would have a right to live in the studio; and that Nevenka would leave her the studio in her will: Nevenka: In her Will mum left everything to me. Branka: Can I see her Will? Nevenka: There is nothing to see, mum left everything to me. You have the studio and I will make sure it is in my Will that you get the studio. The rest will be shared between Goran, [Goran's son] and [Veselinka's son]. (Nevenka's second alleged studio representation)
3. This is contested by Nevenka, who denies the conversation and denies making any promise to Branka that she had a right to live in the studio or would obtain ownership of the studio via provision in Nevenka's will.
4. Branka says that she was confused that Zora had not done as she had promised by leaving Branka one third of her share in the Cowper Street property. Branka also says that following the above exchange with Nevenka, her understanding was she would be taken care of and had no reason to question anything, as she would have the studio and the three boys (Goran and Zora's great-grandchildren) would eventually get everything.
5. Nevenka says that she provided a copy of the Will to Veselinka and Branka in 2017. This is contested by Branka, who consistently denied receiving a copy of the Will. At the hearing before me, Nevenka was not challenged on this aspect of her evidence.
6. Veselinka says that Nevenka sent her a copy of the Will, probate papers and instructions in relation to challenging the Will on 16 September 2017.
7. According to Veselinka, shortly after this, when she came to Sydney in November 2017, she had the following conversation with Branka: Veselinka I received Mum's will in the mail today. Branka I got it too. Mum left Nevenka her flat. I was not expecting anything and that's all right.
8. For reasons I will set out in greater detail below, I do not consider the factual question of whether Branka received a copy of the Will at this time to be of crucial importance to the legal issues I am required to determine in the proceedings. Irrespective of which of Branka's or Nevenka and Veselinka's account I prefer, it is clear that Branka knew, as at 2017, that provision had not been made for her in the Will and that she stood to receive nothing under it.

Probate granted and administration of Zora's estate

1. On 20 October 2017, this court granted probate of the Will to Nevenka.
2. Nevenka says that following the grant of probate, she paid the following liabilities of the estate totalling $11,583 (with no remaining liabilities): 1. funeral expenses in the amount of $9,220; 2. fees for the granting of probate by this court in the amount of $2,032; and 3. fees for a perpetual interment right in the amount of $331.
3. According to Branka, Nevenka had been in control of Zora's affairs and was a signatory to Zora's bank account, so that neither she nor Veselinka had access to Zora's records.
4. On 22 August 2018, in accordance with the terms of the Will, Zora's interest in the Cowper Street property was transferred into Nevenka's name and the administration of the estate was duly completed. I note that this distribution took place after the expiration of the prescribed statutory 12-month period within which a family provision application can be made pursuant to s 58(2) of the Succession Act.
5. As at 22 August 2018, Nevenka and Veselinka became the registered owners of the Cowper Street property as tenants-in-common in unequal proportions. Nevenka's share of the Cowper Street property has increased to 75% (three-quarters share) and Veselinka's share remains 25% (one-quarter share) pursuant to the Will.

Goran and family move into the studio and sale of the Don Juan Avenue property

1. Nevenka gave evidence that in March 2019, she had a conversation with Branka in the course of which Branka expressed a wish to sell her unit (presumably meaning the Don Juan Avenue property) and buy a large one to move into, preferably in Randwick. Nevenka says that she offered for Goran to move into "the unit" (presumably referring to the studio at the Cowper Street property) while Branka was buying and selling units, noting this would take at least six months.
2. This is contested by Branka, who denies having had the above conversation with Nevenka but says that words to the following effect were exchanged between them around this time and that she ultimately accepted Nevenka's offer for Goran to move into the studio and Branka to move into Unit 1: Branka: I am considering buying a bigger unit for Goran and his family to move into. Nevenka: While you are selling your unit Goran can move into the studio and you can move into my second bedroom.
3. In cross-examination, Branka insisted that she never told Nevenka that she herself would be moving out of the Cowper Street property and into the new property, and that the plan at all times was for Goran and his family to eventually take up residence in the new property once it was purchased (T42).
4. Following this, in around August 2019, Goran, his partner and their son moved out of the Don Juan Avenue property and into the studio for a period of six months.
5. On 12 September 2019, Branka sold the Don Juan Avenue property for $695,000, $325,000 more than the $370,000 she paid when she acquired it in December 2008.
6. I prefer the evidence of Branka in relation to this episode as I consider that Branka wished to take financial advantage of living rent-free at the Cowper Street property (and in the studio which had been built for her) for as long as she possibly could. I consider that Branka is unlikely to have expressed any intention to move out when she had not even bought a property into which she, Goran and his family might move together. I think that it is likely that Branka was looking to house Goran and his family at no cost to them or her for the period before she was able to find another unit into which they could move.

Purchase of the Prince Street property

1. On 21 October 2019, Branka purchased a two-bedroom unit at Prince Street, Randwick, New South Wales (Prince Street property) for $940,000. There was no mortgage over the property.
2. According to Veselinka, Branka called her when she purchased the Prince Street property and said: I have bought a 3 bedroom unit and me and my family will be moving in to it as soon as it gets renovated and the internet is connected.
3. In cross-examination, Branka maintained that she never represented to either of her sisters that she would move into the Prince Street property (T42). I accept Branka's evidence based on the probability that she wanted to be able to house all of her family, including herself, at no financial cost to her or them.

Nevenka's ill-health, conflict between Branka and Nevenka and Nevenka's third alleged studio representation

1. In November 2019, Nevenka suffered a lung infection. From this time, she has had ongoing respiratory health issues as a result of multiple reinfections, along with several admissions to hospital for treatment. Branka says that around this time, she took Nevenka to hospital on a number of occasions.
2. During this same period, it appears that the relationship between Nevenka and Branka (who was still living in Nevenka's unit at this point) began to sour significantly.
3. According to Branka, Nevenka stopped talking to her and on one occasion demanded that she leave Unit 1, saying (alleged expletives omitted), "Get out of my house. I gave you the studio, go and live there" (Nevenka's third alleged studio representation). Branka says that following this interaction, she became concerned about Nevenka's behaviour, which she perceived as confused, erratic and irrational.
4. For her part, Nevenka denies that she said the above words attributed to her by Branka, and denies that she exhibited confused or erratic behaviour at this or any other time. Veselinka says that she has never observed any such behaviour on the part of Nevenka.
5. Branka also says that around this time, she: 1. did some research to see if she was able to challenge the Will, at which point she discovered that she would have needed to do so within the 12 month-period following Zora's death; 2. became suspicious that Nevenka may have lied about the provisions of the Will, but was unable to confirm or otherwise test her suspicions because she did not have a copy of the Will; and 3. developed an assumption that she had missed any opportunity that she might have had to contest the Will, given that Zora had died in 2017.
6. I am unable to be satisfied about the alleged confused, erratic and irrational behaviour of Nevenka according to Branka. I have no doubt that there was a significant falling out between Nevenka and Branka around this time, in the course of which it is likely that they had heated and emotional exchanges.
7. As I have indicated under the heading titled "Consideration" in the section dealing with Issue 1 below, on the balance of probabilities, something similar to Nevenka's third alleged studio representation was made to Branka by Nevenka, although I am only satisfied that it imported Nevenka having given Branka the studio to live in, not to own.

Prince Street property renovations and Goran and family move into the Prince Street property

1. In 2020, over a period of months coinciding with the COVID-19 lockdown period(s) in Sydney, the Prince Street property was renovated.
2. Nevenka gave evidence that around the time Branka bought the Prince Street property, Branka told Nevenka that the bathroom need to be completely re-modelled. She also says that by the second half of 2020, renovations at the Prince Street property were completed and some of Branka's furniture had been transferred into it, although Branka remained living in Unit 1 on the Cowper Street property.
3. The nature of the renovations that were carried out at the Prince Street property is somewhat unclear. It appears that work was done to create an additional room at the Prince Street property by enclosing what was once a balcony. Both Branka (T42) and Goran (T59) deny that the result was an additional bedroom (or even a room that could be used as an extra bedroom), but without specifying how exactly that additional room is or has been used.
4. In the second half of 2020, shortly after the renovations to the Prince Street property were completed, Goran, his partner and his son moved out of the studio at the Cowper Street property and into the Prince Street property. In cross-examination, Branka indicated that because it took some time for the internet to get connected, Goran and his family moved out of the Cowper Street property and into the Prince Street property progressively (T44). Goran gave evidence that he and his family spent the first and second lockdowns (or part of them) living in the Prince Street property.
5. Goran and his family presently live at the Prince Street property. They have never paid rent to Branka while occupying the Prince Street property, but Branka says that whenever they have lived in a property owned by her, they have paid expenses (T43).
6. In response to questions I asked Goran at the hearing, he agreed that he does not pay any rent to Branka in respect of his (and his family's) living arrangements at the Prince Street property, but stated that they "take care of things" and send Branka money every so often (T60): HIS HONOUR Q. Mr Kleut, can I just ask you this: the arrangement that you have with your mother for living at Prince Street where you currently are - A. Yes. Q. - is that you don't pay any rent. Is that right? A. Well, we don't pay rent, but we take care of things. I send my mum, every so often, some money, and that's the arrangement. Q. As you understand it, the money that you give to your mother is in repayment of money that she has loaned you over several years from time to time. A. I don't know if I could ever repay my mum the money that she has loaned me, but I know that there's still an internet bill that is under her name that I give money for, and certain things, yeah. Q. You help out from time to time with the expenses that might arise on the property. Is that right? A. Yes. Yeah, most of, yeah.

Dispute between Nevenka and Branka and Branka moves back into the studio

1. According to Nevenka, in early 2021, Branka represented to Nevenka that she would be moving out of the Cowper Street property and into the Prince Street property along with Goran and his family. Nevenka says that in February 2021, Branka told her that the internet at the Prince Street property would be connected on 15 March 2021 and said, "we are all moving out". Branka denies having said this, maintaining that she only ever said that Goran and his family would be moving into the Prince Street property, while she would be moving back into the studio, which she says she proceeded to do.
2. Under cross-examination, Branka insisted that there was never any question of her moving out of the Cowper Street property (T42): Q. And in March 2021, you then told Nevenka that you were going to move into the Prince Street unit - A. That is not true. Q. - after the internet was connected? A. I said Goran and his partner and [Goran's son] would be moving out when the internet was connected. I did not say - HIS HONOUR Q. So, moving out from - A. From the studio into the Prince Street. Q. Right. A. I did not say I was going to move out, there was never a question of me moving out. PRICE Q. Because it was not in your financial interests to do so; was it? A. No, it had nothing to do with that. The arrangement was firmly in place that I live in a studio, and that Nevenka and I are going to stay together and look after each other as we are getting old and frail.
3. On 10 March 2021, Nevenka returned from an overnight stay in hospital, having been admitted as an inpatient the previous day for treatment for pneumonia. Upon returning to her unit, where Branka was still living at this point, she and Branka had an argument the details of which are disputed but which appears to have been triggered by Nevenka asking Branka where her coffee-making equipment was, before descending into an aggressive verbal exchange, in the course of which: 1. Nevenka says she asked Branka, "Why don't you move into the studio while waiting for the internet connection [at the Prince Street property]?"; and 2. Branka says Nevenka told her to get out of her house and go and live in the studio (in terms identical to Nevenka's third alleged studio representation) (T46-47).
4. Following this exchange, Branka moved back into the studio, which she has continued to occupy ever since. Nevenka says that Branka has lived in the studio without her or Veselinka's permission since 15 March 2021.

Exchanges between Branka and Veselinka about Zora's alleged promise

1. On 9 April 2021 at 5:23pm, Veselinka sent Branka a WhatsApp message (Veselinka's WhatsApp message), stating: … When she dies it would bring me extreme happiness when the house gets sold. [You] will get your money that was promised by mum and the bloody house gets flattened. …
2. It is clear from the context of this message, including the surrounding messages that were also admitted into evidence, that the "she" being referred to is Nevenka. I will not describe or set out in further detail the correspondence within which this statement from Veselinka is nested except to say that around this time Branka and Veselinka were exchanging messages where they appeared to be venting their frustrations about certain aspects of Nevenka's character and conduct to which they were exposed during certain periods in their adult lives when they were living with Nevenka.
3. In cross-examination, Veselinka suggested that amidst extensive back-and-forth correspondence with Branka over the phone and via text message around this time, she was simply agreeing with certain claims Branka was making to get Branka off her back or to see "what she was getting at" (T125): A. There was phone calls and there was texts. And in some phone calls, she was saying that she should have money or whatever, and I was agreeing with her … I was saying things that she wanted to hear just to see where she was getting at, what she was getting at.
4. When asked what compelled her to refer to "money […] promised by [Zora]" to Branka in the above WhatsApp message, Veselinka stated that she could not remember specifically what had prompted her to put in print to Branka that Branka would get the money that had been promised to her by Zora (T125-126). Veselinka also stated that Zora had not made any promise to Branka that she would leave her money in the Will in Veselinka's presence, and that it seemed to her, presented with the text of this WhatsApp message now, that she was just trying to either brush Branka off or placate her (T126).
5. According to Branka, a short time after Veselinka sent her the above WhatsApp message (and prior to 21 June 2021), she had a conversation with Veselinka which included the following exchange: Branka: What do you know about mum's promise to me? Veselinka: Mum said to Nevenka in front of me Branka is to get one third of my share of the house. (Veselinka's alleged statement)

First request for Branka to vacate the Cowper Street property - letter of demand dated 14 June 2021

1. On 14 June 2021, Nevenka sent a letter to Branka asking her to vacate the Cowper Street property within two weeks (letter of demand). The letter of demand relevantly stated (quoted exactly as written): I am writing this letter because you still didn't move out of my property into your own unit in Prince Street, Randwick that you purchased in 2019 and renovated in 2020 and in accordance with what you told me, that you will move out in March this year. l don't understand why are you putting me into the situation where I have to ask you in writing to move out. … You have postponed you move to your unit firstly because you didn't read by-laws, than because of renovations and finally because of internet connection. In late January you told me that your internet will be connected on 15 March 2021 and that you will move out soon after. However, you are still in my studio without providing any explanation or without obtaining my permission to stay there. Even if I wanted to give you permission to stay in the studio I can't because it is not approved for occupation without use of a unit. That makes your stay in my studio illegal. I didn't allow use of my unit any longer because you verbally attacked me as soon as I came back from hospital after bronchoscopy on 10 March 2021 with pneumonia. Despite my frail state you were very aggressive, even started walking towards me, yelling, calling me names and threatening which frightened me. I don't understand what it was for but I became fearful from you. I expected you to leave the studio as well soon after. When I asked you why aren't you moving out your answer was in a aggressive manner that you are not ready. However, I know your unit is ready and your son's girlfriend has moved into the unit some months ago. I have been present when she asked you to move into the unit but I am not sure whether you are getting rent from her or whether you have more tenants in your unit. At the same time you are collecting government pension and living in my studio and occupying my three garages and workroom, rent free and without contribution towards any bills. You are also using my electricity for lights in the studio and to heat the garages which have no door. You have also destroyed all lights in the garages and fire alarms. I expect you to pay for it. Prior to 9 March 2021 I have allowed you to reside in my unit and studio while you organize your housing situation and during worst of the pandemic. Earlier I have looked after you while you were sick and had hip replacements, one in 2017 and the other in 2019. Later on when you purchased a large unit I agreed for you to occupy my unit (together with me) and the studio together with the rest of your family until you finished renovation of the unit. Now that your unit is finished you are still not moving out. Just to remind you that some years ago mom allowed you to stay with her rent free and without any contribution for bills so that you can organize your accommodation and pay for your son's private academy. During that time you have renovated and than sold your unit in Clovelly Street, Randwick and purchased three bedroom unit in Dutruc Street also Randwick. When you son finished the school you sold the tree bedroom unit and purchased two bedroom unit in King Street, Randwick and a studio in Alison Road which you rented. Than you sold it all and purchased one bedroom unit in Don Juan Avenue Randwick which you claimed was too small for both. Now that you purchased a large three bedroom unit in Prince Street, Randwick, finished all the renovations in 2020 you kept postponing you move into the unit. …

1. In cross-examination (T132-134), Veselinka was asked why she had a complete change in attitude towards Branka within such a short period. Veselinka responded by saying "[Branka] was trying to take the house away from me". Veselinka was then asked, "[h]ow was [Branka] trying to take the house away from you?". Veselinka gave a lengthy discursive and non-responsive answer to that question, referring to the following conversations she alleged she had with Branka and Goran at about this time: When I was renovating my - my bathroom, she was ready to move. I said, "Branka, you have to move. We have to sell this house. We own this house". And she said, "Oh, well, I haven't got much here anyway. I've already started taking things into the rubbish". And she numbered what she had, bed, some furniture, she said it wouldn't be hard to move. I said, "Well, all right, I'll help you move if you like". And the second day was the same conversation, and her son was coming up the steps and she said, "Shh, don't tell, don't say anything, don't tell Goran". And I said, "why?". "Oh, he gets very upset about that". And as he walked up the stairs, he said, "What's going on? What is the conversation?" I think he said, "I demand to know or I need to know what the conversation is", and Branka's going, "Nothing, nothing". And I turned to him and I said to him, "We have decided to sell the house, and you'll have to move so that we can sell the house". And he said to me, "Oh, wait - what about when I, I, I." I said, "Because [Nevenka's] sick, she might even go to a nursing home, and I just, you know, we need to sell the house," and he said, "Oh, I'll put her in a nursing home, and then she'll see how she feels." Well, from that conversation, I could not see any more conversation going on. I could not carry on any more conversation, and I just walked out.
2. I have not placed any store in the evidence of these conversations, none of which appeared in any of the multiple affidavits made by Veselinka for the purposes of these proceedings.

Renovations of Units 2 and 3

1. Nevenka gave evidence that she carried out further renovations of Unit 3 in 2021 and 2022, and renovations of Unit 2 in 2022.

Nevenka issues termination notice

1. On 5 January 2022, Nevenka sent Branka and Goran a notice to terminate tenancy agreement (termination notice), requesting that Branka and Goran deliver up vacant possession of the studio by 20 January 2022. The termination notice was expressed as being given on the grounds of: 1. destruction of the property (including garage doors, electric lights and plants); 2. aggressive behaviour (citing verbal abuse and threats of physical harm); 3. abuse, harassment and health hazard; 4. intimidation by Goran; and 5. illegal use of the premises (noting that the studio was not approved for use as a separate residential unit by the council).
2. The termination notice also set out Nevenka's belief that Branka was renting out the Prince Street property whilst she was living in the studio rent-free and without paying any bills, and Nevenka's understanding that Branka was receiving a pension despite owning the Prince Street property and therefore in contravention of the law.

NSW Civil and Administrative Tribunal proceedings

1. In early 2022, Nevenka brought an application against Branka and Goran to commence proceedings in NCAT seeking to exclude Branka and Goran from the Cowper Street property (NCAT proceedings). The precise terms of the application to NCAT are not in evidence.
2. On 22 February 2022, the then solicitors for Branka and Goran, Peter D White and Co, sent a letter to Nevenka which referred to the NCAT proceedings and enclosed by way of service: 1. A statement of Branka dated 22 February 2022 (Branka's statement to NCAT), to which was annexed a copy of the occupation certificate. 2. A statutory declaration sworn by Ms Meddows dated 22 February 2022; and 3. A copy of White and Co's letter dated 22 February 2022 to the Registrar of NCAT, which disputed NCAT's jurisdiction to hear Nevenka's application on the basis that Branka and Goran as the respondents were making a claim for squatters' rights or adverse possession and that it was not a tenancy matter.
3. Branka's statement to NCAT recorded, among other things, Branka's: 1. opposition to the making of the orders sought by Nevenka against Branka and Goran in relation to the Cowper Street property and the termination notice; 2. refusal to vacate the Cowper Street property; 3. denial of any damage occasioned or caused to the Cowper Street property, or aggressive behaviour towards Nevenka, by her or Goran; 4. account of financial contributions, which she estimated to be in excess of $100,000, and non-financial contributions made by her to the construction and outfitting of the studio since 2008; 5. account of assistance and care that she provided to Zora while living at the Cowper Street property, including shopping and general housework, and to Nevenka, including transportation to medical appointments; 6. assertion that she paid for her personal share of the utilities (gas and electricity); and 7. assertion of her entitlement to remain in the studio on the basis of adverse possession, namely her continuous occupation of the studio since 2008 for a period of over 12 years in the absence of any tenancy agreement.
4. The NCAT proceedings were listed for contested hearing by telephone on 6 June 2022.
5. On 9 May 2022, the then solicitors for Nevenka, Farrell Goode, wrote to NCAT in relation to the NCAT proceedings. Farrell Goode's letter asserted the jurisdiction of NCAT to hear Nevenka's application and the existence, since January 2009, of a verbal tenancy agreement pursuant to which Branka would have sole occupation of the studio in exchange for the provision of carer services to Zora and contribution to the payment of rates and utility bills and general maintenance and upkeep of the Cowper Street property. Farrell Goode pointed to Nevenka's actions in separately metering the gas supplied to the studio, the nature of the detached studio residence, Branka's payment of electricity bills, and the provision of services by Branka (including caring duties and general property maintenance) as indicia of a tenancy agreement under s 13 of the Residential Tenancies Act 2010 (NSW). Farrell Goode also submitted that each change in accommodation on the Cowper Street property by Branka gave rise to a new, separate tenancy agreement commencing from the date of the change in accommodation.

Branka obtains a copy of the probate of the Will

1. According to Branka, on 1 June 2022 she sent Nevenka a letter requesting a copy of the Will, to which Nevenka never responded. Branka says that she then, on 3 June 2022, applied to this court for a copy of the probate of the Will, which she received on 22 June 2022.
2. Branka states that the first time she read a copy of the Will was upon receipt of the probate by her on 22 June 2022.

Further request for Branka to vacate the Cowper Street property

1. On 24 August 2022, the solicitors for Nevenka and Veselinka, Adams & Co, sent a letter to Branka advising that if she did not leave the Cowper Street property by 5pm on 10 September 2022 (within 14 days), Nevenka and Veselinka would commence proceedings in this court seeking possession of the Cowper Street property and Branka's exclusion from the Cowper Street property. In the letter, Adams and Co also noted that they would seek indemnity costs upon the conclusion of any such proceedings and asked that any future correspondence between the parties be conducted via their respective lawyers.

Present proceedings

1. On 3 November 2022, Nevenka and Veselinka commenced the present proceedings by filing a statement of claim in this court seeking, among other things, the following relief: 1. judgment for possession of parts of the land at the Cowper Street property, namely the studio above the garage, garages 1, 2 and 3 and the work room adjoining garage 4; 2. leave to issue a writ of possession; and 3. damages and/or equitable compensation.
2. On 5 December 2022, Branka filed a cross-claim against Nevenka (in her personal capacity and in her capacity as executrix of Zora's estate) and Veselinka, seeking the following relief: 1. a declaration that Nevenka and Veselinka hold part of their respective interests in the Cowper Street property on trust for her; 2. an order extending the time for the making of an application for family provision; and 3. an order for provision from the estate or notional estate of Zora.

Nevenka's expenditure on renovations of the Cowper Street property

1. Nevenka says that she has spent a total of $562,501.32 on renovations of the Cowper Street property, in the following years and amounts: 1. 1988: $4,500 for replacement of the sewer; 2. 1988: $2,000 for installation of steel bars on windows; 3. 1989: $2,500 for replacement of the front fence; 4. between 2008 and 2010: $400,000 (estimated) for construction of the studio; 5. prior to 2017: $50,000 (estimated) for construction work on the garages and $15,000 (estimated) for construction of pergola and concreting; 6. between 2021 and 2022: $79,101.32 for renovations of Unit 3; and 7. 2022: $9,400 for renovations of Unit 2.

Cowper Street property valuation

1. On 17 June 2024, real estate agency MGM Martin sent a letter to Nevenka providing their estimate of the Cowper Street property's current market value of around $4.9 million (Cowper Street property valuation). At the hearing before me, the parties indicated an agreed value for the Cowper Street property, in the current market, of $5 million (T145).

Prince Street property valuation

1. On 17 June 2024, MGM Martin sent a letter to Branka providing their estimate of the Prince Street property's selling price in the current market of around $1.25 million (Prince Street property valuation). This is $310,000 more than Branka paid for the acquisition of the Prince Street property in October 2019.

Employment status and financial circumstances of Branka, Nevenka and Veselinka

Branka

1. Branka gave evidence that in about 2001, at the time she moved into the Cowper Street property, she was employed as a payroll manager. Branka says that she retired in 2016. Nevenka says that Branka did not retire until March 2019, while Ms Colnan gave evidence that Branka was in full-time employment until about 2018.
2. Branka's net monthly income is $2,321.06 a month. Her financial position can be summarised as follows: 1. Assets worth approximately $1,334,935, comprising: 1. the Prince Street property (purchased for $940,000 in October 2019) with an estimated value of $1.25 million; 2. savings totalling $76,435 held across three bank accounts; 3. a motor vehicle with an estimated value of $6,500; and 4. jewellery with an estimated value of $2,000. 1. Liabilities amounting to approximately $26,441, including estimated legal fees of around $25,000 and a credit card debt of $1,411. 2. Income comprising a government aged pension of $2,232.60 per month and bank interest from a savings account of $88.46. 3. Estimated expenses of $1,855.59 per month covering utilities, food and household supplies, car insurance and medications.

Nevenka

1. Nevenka retired from full-time work in 2006, aged 55 years.
2. Nevenka's net monthly income is approximately $7,256.48. Her financial position can be summarised as follows: 1. Assets worth approximately $3,783,842.40, comprising a 75% interest in the Cowper Street property ($3.75 million), $16,000 in cash, $7,842.40 in shares, jewellery with a value of $3,000 and a motor vehicle worth $7,000. 2. Liabilities of around $40,700 including a $700 credit card debt and $40,000 in legal fees. 3. Income of $7,256.48 per month comprising a pension of $4,554.83, $2,678.14 in rental earnings from Unit 3 and approximately $23.51 in dividends from shares. 4. Monthly expenses of $4,598.95 including payment of council and water rates, medical expenses, food and household items, expenditure on Unit 3, plumbing and car insurance and maintenance.
3. In cross-examination, Nevenka accepted that her and Veselinka's estimated plumbing expenses of $506 a month - calculated by dividing the total amount of their expenditure over the past 12 months to address the penetration of the sewer at the Cowper Street property by a neighbour's tree - would not be ongoing (T114-115).
4. In relation to her health and medical circumstances, Nevenka says that since late 2019 when she suffered a lung infection, her lungs have been reinfected numerous times with antibiotic resistant bacteria and that she takes regular medication. Nevenka has been diagnosed with a chronic medical condition called bronchiectasis and her prognosis is uncertain. Nevenka says that in the future she will require a nurse to administer medication and treatment at her home and is also considering treatment overseas.
5. Nevenka estimates her future expenses as follows: 1. $200,000 for repairs, painting and establishment of a back yard garden at the Cowper Street property. 2. $5,000 for council approval for removal of a tree penetrating the sewer at the Cowper Street property and tree removal. 3. $1,200 for new glasses every 3-5 years. 4. $108,000 for 12 teeth implants. 5. $6,000 yearly for ongoing medical fees and medication. 6. $23,400 for domestic assistance (two hours per day for five days a week). 7. $120,000 for bacteriophage treatment (currently only available overseas).
6. In cross-examination, Nevenka accepted that the council had not yet given approval for the tree to be removed, and that the identified amount of $5,000 could be treated as a contingency amount (T115-116). Nevenka also accepted that she had not produced any documentation in support of the estimated amounts associated with, and the need for, each of the dental implants, domestic assistance, and bacteriophage treatment (T116).

Veselinka

1. Veselinka retired from work in 2006.
2. Veselinka's financial position can be summarised as follows: 1. Assets with a value of approximately $1,317,450, comprising a 25% interest in the Cowper Street property ($1.25 million) and $67,450 in savings held in bank accounts. 2. Liabilities of $40,000 (legal fees). 3. Income derived from rent for Unit 2 ($2,985 monthly) and fluctuating income generated by the farm at Kilmarnock, which operated at a net loss of approximately $26,700 in the 2023 financial year but yielded a profit of $69,000 in the 2022 financial year. 4. Monthly expenses totalling $2,659.94 including food and household supplies, expenditure in relation to Unit 2, council rates, plumbing and travel to and from Sydney.
3. In relation to her health, Veselinka states that she has a number of medical conditions which currently require treatment and will continue to pose a financial burden in the future. These include a disease affecting her colon and digestive tract, a prolapsed disc in her back (for which she takes pain medication and which may require surgery), type 2 diabetes and hypertension. Although minimal, Veselinka's current monthly expenses for medication of $26 and doctors' fees of $20.83 may increase in the future.

Legal principles

1. There was no dispute between the parties as to the legal principles to be applied in determining Branka's proprietary estoppel claim. I have outlined these below.

General principles

1. In Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, Brennan J at 428-429 gave a classic formulation of the fundamental elements of equitable estoppel: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed or expected that a particular legal relationship then existed between the plaintiff and the defendant or that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
2. The principles were posed slightly different in Walton Stores by Mason CJ and Wilson J in their joint judgment, fixing upon a common thread of unconscionability between instances of promissory estoppel and proprietary estoppel or estoppel by acquiescence, saying at 404 (citations omitted): One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has "played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it": per Dixon J. in Grundt; see also Thompson. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.
3. At 406, Mason CJ and Wilson J went on to state the relevant principles to be as follows (citations omitted): The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required. Humphreys Estate suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party. Humphreys Estate referred in terms to an assumption that the plaintiff would not exercise an existing legal right or liberty, the right or liberty to withdraw from the negotiations, but as a matter of substance such an assumption is indistinguishable from an assumption that a binding contract would eventuate. On the other hand the United States experience, distilled in the Restatement (2d, s90), suggests that the principle is to be expressed in terms of a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee, the promise inducing such action or forbearance in circumstances where injustice arising from unconscionable conduct can only be avoided by holding the promisor to his promise.

Representation

1. It is well-established in the law on equitable estoppel that in situations involving family members (as opposed to businesspeople in a commercial context), the relevant assurance or representation need not rise to the level of certainty sufficient to ground, for example, a contractual obligation: Wantagong at [63]. Rees J in Pirrottina articulated the rationale for this distinction, stating at [163]: Where the parties involved are family members, the law does not require certainty in the promise or representation. Equitable estoppel may arise notwithstanding that the representation would be insufficiently certain to support a contract and may arise from vague assurances; the focus is on the expectation which it creates rather than the promise: DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728 at [54]-[55]. As Lord Walker observed in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 at [68]: (emphasis added) It is unprofitable to trawl through the authorities on domestic arrangements in order to compare the forms of words used by judges to describe the Claimants' expectations in cases where this issue (hope or something more?) was not squarely raised. But the fact that the issue is seldom raised is not, I think, coincidental. 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.
2. The authorities provide that the promise must nonetheless possess some degree of clarity, be unambiguous, and be intended to be taken seriously; in other words, it must be "a promise which one might reasonably expect to be relied upon by the person to whom it was made": Wantagong at [63], citing Thorner v Major [2009] UKHL 18; 3 All ER 945, Lord Walker of Gestingthorpe at [56]; Pirrottina at [162]. As indicated by Ball J in Wantagong at [63], citing Sullivan v Sullivan [2006] NSWCA 312, Hodgson JA at [85], the certainty of the assurance may be ascertained by assessing the reasonableness of the representee's interpretation of the assurance and their reliance on it.

Reliance

1. Reliance by the representee on the representation must be established both as a matter of fact, and by determining whether the representee would have conducted themselves differently had the representation not been made, or had the representor advised at the outset that the assurance would not be honoured: Wantagong at [83]; Pirrottina at [166].
2. In Slade, Ward P considered the element of reliance in the context of estoppel by encouragement, and, internal to that inquiry, the question of causation, referring to the reasoning of the plurality in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 and stating at [239]-[244]: [239] There is no presumption of reliance; reliance is a fact to be found (Sidhu v Van Dyke at [58]). What is required is satisfaction from the whole of the evidence of the fact of reliance on the balance of probabilities. [240] Reliance in the context of estoppel by encouragement was considered by the High Court in Sidhu v Van Dyke. It is clear that it is not necessary that the relevant assumption be the "sole inducement operating on the mind of the party setting up the estoppel" (Sidhu v Van Dyke at [71]); it need only be a "contributing cause" (at [71]-[73] (French CJ, Kiefel, Bell and Keane JJ); [90] (Gageler J)). [241] In Sidhu v Van Dyke the plurality formulated the question as whether (see at [66]) on all the facts there was satisfaction on the balance of probabilities that the promises in question contributed to the respondent's conduct (there, her conduct in "deciding to commit to her relationship with the appellant and adhering to that relationship" for a number of years). In concluding that there was a compelling case of reliance, the plurality referred, among other things to the "probabilities of human behaviour" (see at [69]). The plurality considered that the assurances made in that case had a "significant effect" upon the respondent's decision-making process and that it was indeed more likely than not that the respondent would have acted differently, had the promises not been made. At [76], the question posed by the plurality was "whether the respondent would have committed to, and remained in, the relationship with the appellant, with all that that entailed in terms of the effect upon the material well-being of herself and her son, had she not been given the assurances made by the appellant". [242] In a separate judgment, Gageler J, as his Honour then was, agreeing with the plurality's reasons added (at [91]) that: … the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have acted or refrained from acting if she did not have the belief. [243] His Honour then went on to frame the question of causation (at [93]) as being "[d]espite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?". [244] In Q v E Co [2020] NSWCA 220 (Q v E Co), Meagher JA (with whom Leeming and Payne JJA agreed) agreed with the proposition that the two formulations of the question (i.e., whether the encouragement was a contributing cause and whether the party relying on the estoppel would have acted differently in the absence of the relevant encouragement) were one and the same (see at [88]), stating the test by reference to Sidhu v Van Dyke as the "but for" test (see at [89]).

Detriment

1. The necessary requirement in proprietary estoppel of material detriment to the representee has been articulated in terms of a finding that the representee would have been "better off" had they not relied on the representation: Wantagong at [90]; Pirrottina at [167]. The detriment in question must be substantial, and is not merely the loss flowing from non-fulfilment of the promise, or the loss of what the representee expected to receive, but rather depends on whether it would be unjust or inequitable in all the circumstances to allow the assurance to be disregarded: Wantagong at [68]-[69]; Pirrottina at [167].
2. Ward P in Slade at [274]-[275] clarified the test: [274] … [D]etriment is a necessary element of proprietary estoppel. There is no presumption of detriment; rather, detriment must be established on the balance of probabilities (see Sidhu v Van Dyke). However, the concept of detriment in the context of proprietary estoppel is neither narrow nor technical (Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [20] (Nettle JA, with whom Maxwell ACJ and Ashley JA agreed)). [275] … [T]he question of detriment is assessed as at the time of departure from the relevant assumption or expectation ([DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348] at [72]). …
3. As to how any benefits obtained by the representee through their reliance on the alleged promise are to be accounted for in the analysis of detriment, Ward P at [285] remarked that such "countervailing benefits" are more relevant to the consideration of the unconscionability of departure from the promise than to the issue of detrimental reliance. Ward P at [285] and [287] also noted that: [285] … [D]etriment is not to be determined by some form of precise arithmetical calculation or balance sheet-like approach in which the counterfactual opportunities are quantified and valued. That is made clear in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [88]; Q v E Co at [157]-[158] per Meagher JA; Soulos v Pagones [2023] NSWCA 243 at [389]-[392]. … [287] The real question is whether the countervailing benefits in effect subsumed or sufficiently made good the representations so as to make it not unconscionable for the [representors] to depart from those representations. There are, of course, cases where a benefit (such as rent-free accommodation over a long period) might be treated as making good the promise or representation of an interest in property. Here, however, in the context of a farming operation conducted over a number of properties and over a number of years in reliance on the expectation that those properties (and business) would be transferred to the [respondents] ("all this will be yours") there was no error in my opinion in his Honour concluding that the countervailing benefits (valuable as they were) did not assuage the equity raised by the [respondents'] detrimental reliance on the [appellants'] representations and the renunciation of those representations by the [appellants]. …

Unconscionability

1. As the authorities make clear, in the context of equitable estoppel, unconscionability in the sense of disconformity with notions of good conscience must be the ultimate effect produced by each of the above elements in combination: Pirrottina at [161]. At [166], Rees J in Pirrottina, paraphrasing the language of the plurality in Sidhu at [77], observed that: … the extent to which it is unconscionable for the representor to seek to resile from the position expressed in their assurances to the [representee] may be gauged by reflecting on the [representee's] likely response if the representator had advised at the outset that they would depart from the representation …
2. It is also well-established that unconscionability is neither an abstract or technical concept, nor some "universal standard"; its presence is to be determined by reference to all the circumstances, including the reasonableness of the representee's conduct in acting on the assumption, and the nature and severity of the detriment that the representee would sustain in so acting if departure from the assumed state of affairs were allowed (Commonwealth v Verwayen (1990) 170 CLR 394, Deane J at 445; [1990] HCA 39, cited in Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164, Giles J at 180). As Allsop P stated in Delaforce at [3]: … Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. …

Branka

1. In oral argument and cross-examination of Nevenka and Veselinka, Branka leaned heavily on what she referred to as the "chronology", being the lapse of time between Branka first taking up residence at the Cowper Street property in around 2001, and action taken by Nevenka and Veselinka to evict Branka from the Cowper Street property beginning in 2021. Branka framed this 20-year gap as significant because it is logically consistent with an invitation, and/or acquiescence and encouragement, by Nevenka and Zora for Branka to live at the Cowper Street property (T1), and with a family arrangement pursuant to which Branka lived at and performed work on the Cowper Street property and was a contributing member of the family (T148). At the outset, I note that this construction, adopted by Branka, of the living arrangements and family relationships that obtained over the relevant period does not favour either party's case over the other, in circumstances where Nevenka and Veselinka contend that Branka had a tenancy at will, and Branka claims a right of sole occupancy in respect of the studio.
2. In short, Branka's estoppel claim is based on the following: 1. Assurances and/or representations which she says were made to her by Zora and Nevenka at various times, were witnessed by others including Goran, Ms Colnan and Ms Meddows, and engendered in her an expectation of receiving a proprietary interest in the Cowper Street property or parts of it. 2. Detrimental reliance by Branka on those representations such that she altered her position - by staying at the Cowper Street property, performing work on the Cowper Street property, and providing care and assistance to Zora - in the expectation of receiving the relevant proprietary interests. 3. The existence of circumstances, including Branka's acts of reliance and acquiescence by Nevenka and Veselinka in Zora's representations to Branka, which make it unconscionable for Nevenka and/or Veselinka to depart from the relevant assurances and representations including by now seeking to exclude Branka from the Cowper Street property.
3. Branka submits that each of the above elements satisfy the three components of a proprietary estoppel claim, being an assurance, reliance and detriment (Pirrottina, Rees J at [161]), and also make it unconscionable in all the circumstances for the alleged representations to be departed from.

Representations

1. The submissions of Branka on the representations on which she relies go to the existence of two species of proprietary interest which she says she was promised: first, a right to occupy the studio on the Cowper Street property, and second, a percentage interest in the Cowper Street property itself. The precise representations relied upon by Branka are as follows: 1. Nevenka's first alleged studio representation - to the effect that the studio was being built for Branka to live in, and which Branka says is corroborated by evidence given by Goran, Ms Colnan and Ms Meddows of their having witnessed relevant discussions (T156, 163-164). 2. Nevenka's second alleged studio representation and third alleged studio representation - whereby Nevenka is said to have represented to Branka that she held a proprietary interest in the studio in the form of a right to sole occupation of the studio for as long as she wished (T150-151). 3. Zora's alleged promise - being the main assurance whereby Zora is said to have promised to leave Branka one-third of her share of the Cowper Street property (a 12.5% interest in the Cowper Street property), which Branka contends Nevenka and Veselinka both acquiesced in (T154-155) and Goran's evidence corroborates (T163).
2. Branka submits that each of the above representations are actual statements; that is, Branka's estoppel case is not one that rests on purported representations capable of being implied by conduct, of the kind described by Rees J in Pirrottina at [155] (T165-166).

Reliance

1. In terms of reliance, Branka submits that she remained at the Cowper Street property, performed work (including renovations and construction) on the Cowper Street property (which Ms Meddows and Ms Colnan witnessed), and provided assistance to Zora in reliance on the above representations and assurances (T163).
2. Branka contends, for instance, that she stayed living at the Cowper Street property in reliance on Nevenka's first alleged studio representation. She notes that when she intended to move out of Cowper Street property and into the King Street property in 2006, Nevenka said to her words to the effect that she would construct a studio above the garages for Branka to live in, so that Branka would agree to stay with them, and that Branka altered her position in reliance on that promise.

Detriment

1. Branka submits that the detriment that will be visited upon her should Nevenka and Veselinka be permitted to resile from the alleged representations must be viewed not merely in financial terms, but also as encompassing emotional and other kinds of detriment (T162), although this submission was not developed beyond that bare assertion.
2. Regarding the issue of the potential benefit that Branka has derived from living at the Cowper Street property, Branka resisted the suggestion that living at the Cowper Street property, where she paid neither rent nor any living costs, enabled her to build up a property portfolio. She submitted that no necessary nexus between her rent-free status and her acquisition of a property portfolio (or at least her ability to trade in properties) can be drawn, particularly in circumstances where no attempts were made to develop the counterfactual by quantifying the rent that Branka might have paid while resident at the Cowper Street property (T157-158). She says that while her ability to acquire a property portfolio is a relevant consideration, it should not be treated as cancelling out, or converting any detriment she may suffer into an advantage (T158). Also emphasised by Branka is the fact that while she did acquire properties, she acquired those properties to house Goran and his family (T157).
3. While accepting that from time to time she had tenants in her properties paying rent, and that there was some financial benefit to her in being able to live rent-free at the Cowper Street property, Branka submits that the court should look at the whole of the circumstances. In all of the circumstances, Branka says, it cannot be said that living at the Cowper Street property has been to her advantage (T159). On the contrary, she says, remaining in a situation where she was required to move between parts of the Cowper Street property (T162), and sometimes live in quite difficult circumstances (particularly during the period she was living in Zora's second bedroom in Unit 3 (T157)) has been - and will be - to her detriment, if she is deprived of the proprietary interests in the Cowper Street property that she alleges she was promised.
4. In relation to detriment, Branka also pointed out (although this submission was neither developed nor elaborated upon) that she intended to move out of the Cowper Street property into the Dutruc Street property (in 2004) and later into the King Street property (in 2006); however, she remained living at the Cowper Street property on both occasions due to alleged entreaties by Nevenka and Zora that she continue living with them (T147). From the tenor of this submission, the essential argument appears to be that Branka forewent opportunities on both occasions to establish herself in one of her own properties, did so (at least on the second occasion, around which time Nevenka's first alleged studio representation and Zora's alleged promise were made) in the expectation of receiving proprietary interest(s) in the Cowper Street property, and that this should now figure in my consideration of how Branka will be disadvantaged by the non-fulfilment of those promises.

Unconscionability

1. Branka submits that it would be unconscionable for the alleged representations to be departed from here because of the abovementioned acts done by her in the expectation encouraged in her of receiving a 12.5% interest in the Cowper Street property and an open-ended right of sole occupation of the studio (T163).
2. In terms of acquiescence in Zora's alleged promise on the part of each of Nevenka and Veselinka, Branka points to: 1. Veselinka's WhatsApp message (where Veselinka, addressing Branka, refers to "your money that was promised by mum"); 2. Veselinka's alleged statement ("Mum said to Nevenka in front of me Branka is to get one third of my share of the house"); and 3. Nevenka's purported silence and lack of objection at the time Zora's alleged promise was articulated to her (T155).
3. These instances of acquiescence by Nevenka and Veselinka, Branka submits, go to the unconscionability of them now departing from the alleged representations.

Nevenka and Veselinka

1. Nevenka and Veselinka submit that Branka's proprietary estoppel claim must fail, principally on account of the absence of any detriment suffered by Branka, although they also dispute that the representations and assurances relied upon by Branka were made as alleged and do not accept that there was reliance on those alleged representations.

Representations

1. On the representation element, Nevenka and Veselinka contend that the fact that Branka was permitted to reside at the Cowper Street property between 2001 and 2021, without objection from Nevenka and Veselinka, is not determinative and indeed is immaterial because such a circumstance is equally referable to there being a tenancy at will. They argue that being permitted to reside at the Cowper Street property for any length of time does not necessarily carry with it a right on the part of Branka to remain at the Cowper Street property for as long as she desires.
2. To my mind, this is at least in part a moot point: the case put by Branka is explicitly framed in terms of representations in the form of express statements, rather than conduct by Nevenka and Zora. That is, Branka does not identify the conduct of Nevenka, Veselinka and/or Zora in allowing her to occupy the Cowper Street property for an extended period as a material representation that lead to her developing an expectation of a proprietary interest in the Cowper Street property. Moreover, as stated above, I am satisfied that the asserted "family arrangement" is legally consistent with Branka occupying the property either as a tenant at will or as the holder of a right of sole occupancy of the studio.
3. As to the making and content of an assurance capable of founding an estoppel, Nevenka and Veselinka accept that where the parties involved are family members (as here), the law does not require certainty in the promise or representation. They observe that the representation must nonetheless be unambiguous and appear to have been intended to be taken seriously.
4. In relation to Nevenka's first, second and third alleged studio representations, Nevenka and Veselinka assert that statements to that effect - promising Branka a right to occupy the studio indefinitely - were never made. They have pointed to various factors which, they say, detract from or contradict Branka's account, including the following: 1. Nevenka, who denies having said the words constituting the alleged studio representations which are attributed to her by Branka, was not challenged on that denial in cross-examination. While accepting that there is no requirement to challenge a witness on every single matter which they dispute in cases involving duelling affidavits, Nevenka and Veselinka contend that this matter was so central to the case that Nevenka ought to have been challenged on her denial (T169). 2. There is inconsistency between Branka's accounts of the relevant conversation(s) in which the alleged studio representations are said to have been made by Nevenka, and between those accounts and the evidence given by Goran, Ms Colnan and Ms Meddows. Nevenka and Veselinka submit that the evidence given by Goran, Ms Colnan and Ms Meddows is not on all fours with the evidence of Branka. Nevenka and Veselinka make this submission even as they accept that the recollections of various persons of Nevenka having stated that the studio was for Branka to live in contain similarities, common themes and/or the same components.

Reliance

1. Nevenka and Veselinka submit that the issue of reliance is to be approached by asking, first, whether Branka in fact relied on the alleged representations, and second, whether Branka would have acted differently if the alleged representations had not been made, citing Wantagong at [83] and Pirrottina at [166]. While maintaining that reliance cannot be demonstrated in this case, the material representations themselves having not been established, Nevenka and Veselinka submit that Branka, in any event, would not have acted differently if the alleged representations had not been made or she had been told that those representations would not be honoured.
2. In this connection, Nevenka and Veselinka submit that Branka would have done those things that Branka pinpoints as acts of reliance - namely, staying at the Cowper Street property, maintaining and renovating the Cowper Street property and performing other acts of service such as supporting and caring for Zora - irrespective of any promise or expectation of a proprietary interest in the Cowper Street property. They state that it was in Branka's economic interests to remain living at the Cowper Street property for the following reasons: 1. It did not involve any outlay on Branka's part. As conceded by her in cross-examination, Branka was not required to contribute to the costs of constructing the studio, or to pay rent or household expenses. 2. Branka did not have to forego any property interest she held, and could continue to trade in properties while living at the Cowper Street property rent-free. As conceded by her in cross-examination, Branka could have moved into one of her own properties at any time.
3. Nevenka and Veselinka say that these factors go some way towards demonstrating that Branka would have remained living at the Cowper Street property notwithstanding the absence of any expectation on Branka's part of receiving a proprietary interest in the Cowper Street property. They state that Branka's occupation of the Cowper Street property was independent of any representation made to her.
4. In addition, it is submitted that Branka would have contributed in certain ways to the family, helping with renovations and providing assistance to Zora, whether she lived at the Cowper Street property or not. Nevenka and Veselinka point to Branka's agreement, in response to questions put to her in cross-examination, that she could and would likely have continued to help Nevenka, Veselinka and Zora if she had been living at the Dutruc Street, King Street or Alison Road properties between 2001 and 2021 (T35), for "family reasons".

Detriment

1. On the question of detriment, Nevenka and Veselinka identify the relevant inquiry as whether Branka would have been better off had she not relied on the alleged representations, citing Wantagong at [90] and Pirrottina at [167]. They note, further, that this element is only capable of being satisfied by a detriment that is substantial (per Pirrottina at [167]).
2. Their argument is that rather than suffering a detriment by reason of her purported reliance on the alleged representations, Branka has substantially improved her financial position, contending that living rent-free at the Cowper Street property between 2001 and the present day was and has been to Branka's advantage. In this regard, they submit that in setting up the different properties owned by her at different points in time as investment properties (rather than living in them), Branka has been able to use the rental income to pay off the mortgages over those properties, such that she now owns the Prince Street property outright, unencumbered by a mortgage, and is in a position to provide the Prince Street property to Goran and his family as rent-free accommodation.
3. On the question posed to the parties by me at the hearing, of how the court ought to bring to account the benefit that Branka has derived from living rent-free at the Cowper Street property, counsel for Nevenka and Veselinka itemised the properties bought and sold by Branka between 1988 and 2020 (T177, T186-187), noting: 1. The purchase of the Clovelly Road property in February 1988 for $110,000; 2. The sale of the Clovelly Road property in March 2001 for $320,000; 3. The purchase of the Dutruc Street property in February 2001 for $400,000; 4. The purchase of the Alison Road property in May 2005 for $185,000; 5. The sale of the Dutruc Street property in August 2006 for $600,000; 6. The purchase of the King Street property in August 2006 for $435,000; 7. The sale of the Alison Road property in October 2006 for $200,000; 8. The purchase of the Don Juan Avenue property in December 2008 for $370,000; 9. The sale of the King Street property in July 2009 for $565,000; 10. The sale of the Don Juan Avenue property in September 2019 for $695,000; 11. The purchase of the Prince Street property in October 2019 for $940,000; and 12. The Prince Street property valuation, which indicates the property's present value (approximately $1.25 million).

Unconscionability

1. Finally, Nevenka and Veselinka note that the three overlapping elements of representation, reliance and detriment comprising an estoppel are all directed to the overarching question of whether it would be unconscionable to permit departure from the encouraged expectation (citing Wantagong at [62] and Pirrottina at [161]).
2. On the question of unconscionability, Nevenka and Veselinka's primary submission is that, assuming I am against them on the issues of representation, reliance and detriment, in the circumstances of this case, it is not unconscionable for Zora's alleged promise and Nevenka's first, second and third alleged studio representations to be departed from, owing to the benefits that have flowed to Branka to date in connection with her occupation of the Cowper Street property. They say that what she has gained from living at the Cowper Street property is a crucial consideration in determining this issue.

Consideration

1. Having reviewed the principles set out above and each of the parties' submissions in respect of Branka's estoppel claim, in my opinion this is not a case in which equity will intervene to protect the proprietary interests to which Branka lays claim. The essential (although not the sole) basis for my conclusion is the distinct lack of detriment suffered by Branka, a matter on which I wholly agree with the submissions advanced by Nevenka and Veselinka. In the interests of completeness, however, I will set out my findings in respect of each limb of the claim in full.

Representations

1. I will deal firstly with the representations alleged to have been made by Nevenka. As a matter of fact and on the balance of probabilities, I have found that one or more representations along the lines of Nevenka's first, second and third alleged studio representations were made by Nevenka to Branka in the period immediately preceding and the period following the construction of the studio on the Cowper Street property. However, I do not consider that any of Nevenka's first, second or third studio representations extended beyond representations that Branka would be able to live in the studio, in the sense of constituting a promise of some form of ownership interest in the studio (and therefore the Cowper Street property). In my opinion, Nevenka was prepared to allow Branka to live in the studio but nothing more, and any statements she made to Branka were consistent with that position.
2. I do not consider that Branka's statement to NCAT asserting her entitlement to remain in the studio on the basis of her continuous occupation of the studio since 2008 (adverse possession), as opposed to an express promise that she could continue to occupy the studio for as long as she wished, makes that finding untenable. The fact that Branka, at the time the NCAT proceedings were on foot, adopted a legal construction of her asserted proprietary interest in the Cowper Street property that is different to that adopted by her in the present proceedings is, to my mind, of little consequence. That is because she adopted that construction of her proprietary interest in the studio on the basis of legal advice she received at that time in connection with the NCAT proceedings. I reject Nevenka and Veselinka's submission that Branka's statement to NCAT should be treated as a concession that she did not have their express permission to live on the property and therefore as ruling out, as a matter of fact, Nevenka's having made some form of the alleged studio representations.
3. It then falls to be determined whether those statements - to the effect that the studio was for Branka to live in - rise to the level of certainty required to constitute a promise of a proprietary interest in the form of an open-ended right of sole occupation of the studio capable of founding an estoppel, as contended for by Branka. On this question, I bear in mind the remarks of Lord Walker in Cobbe at [68], reproduced by Rees J in Pirrottina at [163], regarding representations made by one family member to another: … What [the representee] 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.

Reliance

1. For Branka's estoppel claim to succeed, I must be satisfied on the balance of probabilities that she performed certain acts in reliance on Nevenka's alleged studio representations, and that those representations were a contributing cause that influenced Branka's course of action in a significant or material way, such that she would have acted differently had those assurances not been given and the induced assumption of a proprietary interest in the studio not been held (Slade, Ward P at [245]).
2. On this question, I substantially agree with the submissions advanced by Nevenka and Veselinka. I am not satisfied that reliance on the part of Branka is established, mainly because causation in the requisite sense is absent. In my view, Branka would have done the acts pinpointed by her as acts of reliance - continuing to live at the Cowper Street property beyond 2006, contributing to renovations and construction on the Cowper Street property, and providing some level and form of assistance to Zora - even if Nevenka had not made the alleged studio representations.
3. Branka's ability to live rent-free and without any meaningful outlay at the Cowper Street property while trading in properties and/or acquiring properties for Goran and his family to live in at different points in time provided a powerful economic incentive for her to remain at the Cowper Street property. Aside from and independently of any promise of a defined proprietary interest or legal right of occupation, the informal arrangement pursuant to which Branka occupied the Cowper Street property prior to 2006 was undoubtedly to her advantage, notwithstanding it was legally precarious because it was subject at all times to the will of Zora, Nevenka and Veselinka as the Cowper Street property's registered proprietors. No real attempt was made by Branka to reckon with this fact, and no submissions directly dealing with the issue of causation (other than mere assertions that she intended at different points in time to move out) were put by her. I consider this to be unsatisfactory, given the obvious extant reasons Branka had for remaining at the Cowper Street property and the need to show that but for Nevenka's alleged studio representations, Branka would not have so remained or would otherwise have adopted a different course.
4. In my view, Branka has also failed to show that she contributed in particular ways to the family, helping with renovations and providing assistance to Zora, by reference substantially to an assumed state of affairs in accordance with which she was to receive a proprietary interest in the studio. That is so in circumstances where, by her own account and consistently with the narrative she presented in evidence, she was living at Cowper Street with Nevenka and Veselinka "as family". Moreover, in circumstances where Branka was already residing rent-free at the Cowper Street property on more than a temporary basis, and for that reason had an interest in seeing that the Cowper Street property was improved and/or added to (including for her own comfort), I am unable to conclude that the induced assumption of an indefinite right of sole occupation of the studio was a contributing cause with a significant effect in determining her conduct here. In this connection, I agree with Nevenka and Veselinka's submission that Branka has failed to demonstrate that she performed work on the Cowper Street property in reliance on Nevenka's alleged studio representations as opposed to, for example, an expectation of continuing to occupy the studio as a mere tenant at will, which, among other factors, undoubtedly supplies sufficient grounds for Branka to have pursued the course of conduct that she did.

Detriment and unconscionability

1. If my conclusion as to reliance is incorrect, I am satisfied that Branka's estoppel claim should nonetheless fail owing to the lack of any substantial detriment that she will suffer if Nevenka is permitted to resile from the alleged studio representations. My reasoning on this point also provides an answer to the question of unconscionability, and it is apt for me to address the two elements in tandem given the cross-over of the relevant considerations.
2. To my mind, even if it is accepted that Branka relied on Nevenka's alleged studio representations in the relevant sense, it is difficult to see how that reliance will have been to her detriment if those representations are departed from. I am not satisfied that Branka would have been "better off" had she not acted in reliance on Nevenka's assurances of a proprietary interest in the studio. In those circumstances, and for the reasons I set out in greater detail below, I do not think that notions of good conscience require that Nevenka be held to her promises.
3. To begin with, and even before I advert to the advantages that Branka derived from living at Cowper Street beyond 2006, it is altogether unclear what Branka is supposed to have lost, forfeited, or expended in reliance on the assumption engendered in her of receiving a right of sole occupation of the studio. I accept that she contributed to the improvement of the Cowper Street property, including the construction of the studio, in terms of labour and even potentially (if her evidence of having paid for certain things in cash is accepted) finance, and that this could be taken as money and effort "thrown away" if her expectation of a proprietary interest in the studio goes unrealised. I do not, however, consider that Branka would suffer anything more than a slight detriment by virtue of these moderate contributions alone, especially when one considers that she did not otherwise pay rent or contribute to household expenses while living at the Cowper Street property.
4. In terms of opportunities Branka gave up in anticipation of an entitlement to occupy the studio indefinitely, these were not articulated convincingly or with any precision. Although Goran and his family presently occupy the Prince Street property, which Branka owns outright, it remains open to her to move into that property. She is, in principle, in as ready a position to do so as she was to move out of the Cowper Street property and into one of the properties she then owned at any time prior to 2006, when Nevenka made the first alleged studio representation.

ISSUE 2: EXTENSION OF TIME FOR FAMILY PROVISION CLAIM

1. Having determined Branka's estoppel claim adversely to her, the family provision aspect of Branka's case remains to be determined on the basis set out below.

Legal principles

1. Section 58 of the Succession Act stipulates when an application for a family provision order may be made, providing that: (1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. … (2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. (3) An application is taken to be made on the day it is filed in the Court's registry.
2. Certain policy reasons and considerations underlie the time constraint and the "sufficient cause" exception prescribed by s 58(2). This includes the need to ensure that applications for family provision do not unduly interfere with the prompt administration of deceased estates, reflected in the assessment by parliament that "the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications", particularly since eligible persons will, in the vast majority of cases, be on notice of the testator's death and the provision (or lack thereof) made for them (Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J at [24]). As Pembroke J observed in Madden-Smith at [23]-[24]: [23] … Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). [24] … In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12-month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply.

Branka

1. At the outset, Branka made clear that the claim for family provision is secondary, "an insurance policy" next to her estoppel argument (T2). This was reflected in Branka's approach to this limb of her case, which was faintly put and, as I perceived it, half-heartedly advanced.
2. The need for sufficient cause to be shown pursuant to s 58 of the Succession Act, by reason of Branka's family provision order application having been made out of time, was not directly addressed by Branka in written submissions.
3. In oral submissions, Mr Morahan accepted that the extension of time aspect of Branka's family provision claim posed a particular problem for Branka. Branka's position on this issue, and explanation for the delay by her in making an application, emerged as follows: 1. Branka did not receive a copy of, or read, the Will until some five years after Zora's death. She received a copy of the probate on 22 June 2022, having applied to the Registry of this court for a copy of it on 3 June 2022. 2. Even if, contrary to Branka's evidence and as asserted by Nevenka, Branka sighted the Will at an earlier stage, Branka had no reason to rush to make a family provision claim. That was because, on Branka's account, Nevenka informed her a short time after Zora's death of the Will's contents, that Zora had left everything to Nevenka, that "[y]ou have the studio", and that Nevenka would make provision in her own will for Branka to receive the studio (T149). Branka submits that Nevenka's use of the present tense in the statement "[y]ou have the studio" is significant insofar as it implies something more permanent than a mere entitlement to occupy the studio at Nevenka's convenience, and is consistent with a current right of sole occupancy for as long as Branka wished (T149-150). 3. Branka accepted that the following evidence given by her was not favourable to her case (T152): 1. in late 2019, she conducted some research and discovered that she only had a period of 12 months from the date of death to challenge the Will; 2. she became suspicious that Nevenka may have lied about the provisions of the Will, but did not have a copy of it; and 3. at that time, she formed an assumption that she had missed any opportunity to contest the Will. 1. Branka conceded that at all times since probate was granted, she knew that she was not included the Will (although I am comfortably satisfied, in light of her own evidence as to what Nevenka allegedly said to her about the Will shortly after Zora died, that Branka had this knowledge as early as April 2017).

Nevenka and Veselinka

1. Nevenka and Veselinka submit that Branka has failed to show a sufficient cause for extending the time to bring the family provision claim, as is required under s 58(2) of the Succession Act for an application made out of time, and for that reason the application should be refused.
2. Noting that a claimant, in seeking to show sufficient cause, should address both the period preceding expiration of the statutory limitation period and subsequent delay (citing Underwood at [125]), Nevenka and Veselinka submit that no comprehensive explanation has been provided in respect of either. They note that Branka knew that Zora had died on 15 April 2017, and characterise Branka's explanation for the delay - that she only read the Will for herself on 22 June 2022, and had assumed (upon learning of the statutory limitation period in 2019) that she no longer had the option of contesting the Will - as "slight", using the language adopted by Hallen J in Chu v Ngar [2015] NSWSC 1505 at [152].
3. Nevenka and Veselinka contend, further, that the delay occasions prejudice to them in circumstances where: 1. Nevenka carried out improvements to the Cowper Street property in the wake of Zora's death on the basis that Nevenka owned 75% of the Cowper Street property, per the provisions of the Will. 2. An order for provision in Branka's favour would mean that the Cowper Street property (Nevenka's home, where she has resided since 1988) would need to be sold (citing the Underwood appeal decision at [88]-[89]).
4. Referring to the material relevance of the strength of a claimant's case to the decision whether to extend time (citing the Verzar appeal decision, Meagher JA at [25]), Nevenka and Veselinka submit that Branka's case lacks strength on a number of fronts. They point to the difficulties faced by Branka in seeking a notional estate order in circumstances where Zora's estate has already been distributed, and in demonstrating grounds for the making of a family provision order given that she owns property in which she could live, her income exceeds her expenditure, and she was not materially dependant on Zora.

Consideration

1. In my view, Branka has failed to show sufficient cause under s 58(2) of the Succession Act insofar as she has failed to provide a satisfactory explanation for the delay in bringing the family provision application. I also consider that prejudice would be visited upon Nevenka as a beneficiary by virtue of the delay. In those circumstances, I am not prepared to exercise the power to otherwise order under s 58.
2. In exercising the discretion afforded to me by s 58(2), I place store in the following factors disclosed by the evidence: 1. Branka knew that she had been omitted from the Will as early as April 2017, having been informed of this fact by Nevenka shortly after Zora's death. Whether or not I accept Branka's evidence that she did not have access to or actually sight the Will until June 2022, I regard her early awareness of the Will's contents as significant. 2. Although Branka may have been unaware of her entitlement to bring a claim in the 12-month period following Zora's death, she did not, upon learning of that entitlement in or around late 2019, promptly apply to extend the time. 3. The extent of the delay in seeking to bring the application (six years after Zora's death and five years post-expiration of the statutory limitation period) is not insignificant and is largely unexplained.
3. By way of justification for the delay, Branka asserted that she believed that she had no need for provision from the Will, having been promised a right of sole occupancy of the studio and having received Nevenka's assurance that she would bequeath the studio to Branka.
4. The weight of judicial authority suggests that a mere change of mind or change of heart on the part of an eligible person who has decided not to make a claim, including on the basis of deterioration in that person's financial position, is ordinarily not a sufficient cause for granting an extension of time: Stone at [36]; Verzar at [103]; Zirkler v McKinnon [2002] NSWSC 285 at [31]-[33]; Foley v Foley [2008] NSWSC 233 at [36]-[37]; Taylor v Farrugia [2009] NSWSC 801 at [14]; Henry v Hancock [2016] NSWSC 71 at [47].
5. In Zirkler, Macready M described the position at [31]-[32]: [31] … There are a number of cases where a change of heart has not been held to be a sufficient reason. In Re Lauer (1984) VR 180 it was held that the mere fact that the applicant's financial position had deteriorated cannot of itself be a ground for granting an extension of time under the Act nor could the mere fact that the value of the estate had been inflated beyond what might have been expected at the date of the testator's death be such a ground. [32] Re Lauer was followed by Young J in Bearns v Bearns-Hayes (unreported 6 May 1997). In that case for a period of two years until late 1994 the plaintiff had no intention of making a claim as she had assurances from her family that her position with her home was secure and she had sufficient income. In late 1994 arguments broke out in the family as a result of which the plaintiff felt abandoned by her family and that she could not rely on the loose arrangements previously in place. His Honour found that this was not a sufficient reason.

Legal principles

1. The circumstances in which a notional estate order - an order designating property that does not form part of the deceased's estate (including as a result of distribution of property from the estate) as "notional estate" of the deceased person - may be made are set out in Part 3.3 of the Succession Act.
2. The power to make a notional estate order does not arise unless, relevantly to the present case, the court is satisfied that the deceased's estate is insufficient for provision (or a costs order) to be made: s 88(b) of the Succession Act.
3. The court must not designate as notional estate property that exceeds what is necessary, in the court's opinion, to allow the provision that should be made: s 89(2). Section 78, meanwhile, expressly provides that the court can only make a notional estate order if a family provision order or certain costs orders are to be made, and s 79 (dealing with the designation of property where the estate of the deceased has already been distributed) states that the court may make such an order if satisfied that upon distribution of the estate, the designated property came to be held by a person (whether or not as a trustee) or subject to a trust.
4. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84.
5. Division 3 of Part 3.3 of the Succession Act imposes certain restrictions on the making of a notional estate order, and fixes general matters that must be considered by the court (s 87). Those (non-exhaustive) general matters are the need to avoid interfering with reasonable expectations attaching to property (s 87(a)); the substantial justice and merits involved in granting or refusing the order (s 87(b)); and any other matter the court considers relevant in the circumstances (s 87(c)).
6. In Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, Basten JA at [125] gave some consideration to s 87(a) and concluded that the "reasonable expectations" referred to there must be taken to mean only that of the present holder(s) of an interest in the property, stating: While it remains true that the section (which has not changed from the 1982 Act) is silent as to whose "reasonable expectations" must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property. …

Branka

1. No written or oral submissions were made by Branka on the application of Part 3.3 of the Succession Act and the need for a notional estate order in light of the completion of the administration of Zora's estate, which occurred in 2018.

Nevenka and Veselinka

1. Nevenka and Veselinka submit that Branka has failed to establish grounds for the making of a notional estate order.
2. Referring to s 87(a) and (b) of the Succession Act, Nevenka and Veselinka contend that: 1. Regard must be had to the reasonable expectations of Nevenka and Veselinka in relation to the Cowper Street property as the registered proprietors of that property, and the importance of non-interference with those expectations. 2. Substantial injustice would be caused to Nevenka were a percentage of the Cowper Street property to be designated as notional estate, as the only way provision can be made for Branka is from the sale of that property. Noting that the Cowper Street property is and has been her home since 1988, and that she has expended significant monies on improvements to it in the wake of Zora's death, they say that the prejudice to Nevenka of an order designating the Cowper Street property as notional estate is clear.
3. Turning to s 90, Nevenka and Veselinka note the application of that provision to the current proceedings (Branka's application having been brought out of time) and state that because the conditions in s 90(2)(a) are not met, s 90(2)(b) is the relevant limb. In other words, they say, the court must be satisfied that "other special circumstances" justify the making of a notional estate order in this case.
4. In terms of the interaction of s 58(2) and s 90(2)(b) of the Succession Act, Nevenka and Veselinka state that these requirements - the need for sufficient cause to be shown for an extension of time to bring the claim, and the need for other special circumstances justifying a notional estate order - are additional and/or discrete rather than co-extensive. They say, citing Hallen AsJ in Charnock at [89], that the consequence of the use of the phrase "other" in s 90(2)(b) is that something extra is needed, beyond circumstances capable of demonstrating a sufficient cause for the purposes of s 58(2).
5. In this connection, Nevenka and Veselinka assert that Branka has failed to adduce evidence of any other special circumstances, and for that reason the notional estate order should not be made.

Consideration

1. I agree with the submissions of Nevenka and Veselinka on the application of Part 3.3 of the Succession Act. Accordingly, even if Branka was successful in having the time for the making of the family provision claim extended, I would not make an order designating part of the Cowper Street property as notional estate of Zora.
2. Beginning with the s 87 general matters, following Beazley P in Phillips and Ward J in John, I have given weight to the reasonable expectations of each of Nevenka and Veselinka (as persons whose proprietary interests stand to be disturbed by any prospective notional estate order), Branka (as a person seeking provision from the deceased's estate) and Zora (the deceased). I consider that their expectations in relation to the Cowper Street property would be interfered with by the making (or refusal) of a notional estate order in the following ways: 1. Nevenka: This is a situation of the kind described by Slattery J in Manning, where a beneficiary who received the property (or, more accurately, an increased proportionate share of the property) in question has spent money or worked on the property, and formed an expectation that she would remain in possession of the property. I consider that this expectation was and is reasonably held, and has been cemented by the passage of some years during which nothing transpired to put Nevenka on notice that the distribution of Zora's estate in accordance with the Will would be disturbed, including by virtue of a claim by Branka. 2. Veselinka: As a joint owner of the Cowper Street property alongside Nevenka (holding a 25% share in the property), I must pay similar regard to her reasonable expectation of continuing to hold that proprietary interest. 3. Branka: I have taken into account Branka's expectation that she claims she held of receiving a percentage share of her mother's interest in the Cowper Street property. However, noting that established principle and s 87(a) of the Succession Act only requires that I consider any reasonable expectations in relation to property, I do not give this purported expectation of Branka much weight. That is because I am not satisfied that that expectation was altogether reasonable, having determined on the balance of probabilities that Zora made no promise to bequeath Branka one-third of her interest in the Cowper Street property, and in light of Branka's failure to take any steps to ensure that Zora would follow through on that alleged promise (T32). 4. Zora: To the extent that it is appropriate to consider the deceased's own expectations in relation to the Cowper Street property, I am conscious of her testamentary intention, as reflected in the terms of the Will, that Nevenka should receive the entirety of the residue of her estate (following payment of any debts and probate and estate duties). This included Nevenka receiving Zora's three-eighths share in the Cowper Street property upon her death. Noting that while Zora was alive, Nevenka was overwhelmingly responsible for all manner of caretaking in relation to the Cowper Street property, and that Veselinka did not reside or spend any significant amount of time at the Cowper Street property, I consider that any expectation on Zora's part that this state of affairs would continue was wholly reasonable. 5. In light of the above, I consider that the reasonable expectations of Nevenka, Veselinka and Zora in relation to the Cowper Street property would be substantially disrupted if I were to make an order designating that property as notional estate. The need to avoid interfering with such expectations is a particularly significant concern in this case.

ISSUE 4: FAMILY PROVISION ORDER

1. Given my determination that Branka's claim for a family provision order should be dismissed on the bases outlined above, it is unnecessary to address at length the issue of whether, if those substantive hurdles had been overcome, I would have made an order in the exercise of the power under s 59(2) of the Succession Act for a family provision order in Branka's favour out of Zora's notional estate.
2. However, since I have referred, in dealing with the extension of time and notional estate order issues, to my view that Branka's claim for a family provision order would not succeed, I will set out the applicable legal principles and the parties' submissions and proceed to briefly explain why I would not, in the exercise of my discretion, have made such an order in any event.

Legal principles

1. Section 59 of the Succession Act relevantly provides: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person [defined in s 57(1)(c) as including a child of the deceased person], and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note - Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.
2. Section 60(2) contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

Branka

1. In respect of her claim for family provision, Branka submits that she is an eligible person (being a daughter of the deceased); that Zora did not make adequate provision for Branka in the Will; that while she owns property (the Prince Street property), she has effectively gifted that property to Goran and his family; and that she has health problems and limited savings for the future contingencies of life.
2. In the course of closing submissions at the hearing before me, Branka accepted that the issue of need posed some difficulty (T166), but suggested that adequate provision would see Branka given something in the realm of one-third of Zora's share on an estate of $5 million (in other words, 12.5% of $5 million).
3. Branka submitted that I ought to compare her position with that of her sisters, noting: 1. Nevenka is reasonably well set up, with the "lion's share" (75%) of the Cowper Street property, and income slightly in excess of her monthly outgoings, although she has health problems which elevate her need. 2. Veselinka is likewise relatively well-off, residing at Kilmarnock and holding a 25% share in the Cowper Street property.

Nevenka and Veselinka

1. Nevenka and Veselinka submit that the critical point on which Branka's claim for family provision hinges, and must ultimately fail, is the adequacy of provision made for her by Zora in the Will. They say that in circumstances where Branka owns a property in which she could live, receives income in excess of her expenditure, does not assert any material needs, and was not materially dependent on Zora, it cannot be said, notwithstanding the Will conferred no benefit on Branka, that provision was inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not met.
2. On the relevance to this question of Branka's alleged acts of service, including assisting with renovations of the Cowper Street property and providing care to Zora, Nevenka and Veselinka submit, without admitting that conduct, that it would not entitle Branka to provision from Zora's estate. They say that family provision orders are not made as a reward for service, pointing to Windeyer J's remarks in Blore v Lang (1960) 104 CLR 124 at 137; [1960] HCA 73 to the effect that family provision orders aim to "provide for deserving persons according to their requirements, not to reward past services" and in the same case, Menzies and Fullagar JJ's statement at 134 that: Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court.
3. It is not the case, Nevenka and Veselinka say, citing Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [80], that "[n]either entitlement to an award, nor its quantum, accrues good deed by good deed." In their submission, any work done by Branka to assist in the renovations of the Cowper Street property does not entitle Branka to a family provision order in her favour.
4. In terms of Branka's financial need, Nevenka and Veselinka place emphasis on the following factors: 1. At the time Zora made the Will and at all times since then, Branka has owned real estate in Randwick. 2. Branka presently owns the Prince Street property and is able to move into that property. 3. Branka possesses cash reserves in excess of $70,000. 4. Branka's monthly income exceeds her monthly expenses. 5. No evidence has been adduced (or any specific assertion made) of Branka's future needs or material dependence on Zora at any time.

Consideration

1. In reaching the conclusion that I would refuse the family provision order sought by Branka even if she had succeeded on the extension of time and notional estate issues, I have had regard to all of the evidence summarised above and all relevant s 60(2) matters. In all the circumstances, I cannot be satisfied that adequate provision for the proper maintenance, education or advancement in life of Branka was not made by the Will. That being so, the requirements for the exercise of the discretion conferred by s 59 are not met.
2. Of the non-exhaustive matters set out in s 60(2), I consider that the following considerations have particular force in the present case.

Nature of the relationship with the deceased

1. While I accept that Branka likely shared a loving relationship with her mother, the evidence tends to demonstrate that that relationship with Zora may not have been as close, as stable or as amicable as that between each of Nevenka and Veselinka and Zora, at least at different points in time. Again, this has to do with the alliances between the four women that formed and dissolved and re-formed over the years. In this connection, I place weight on the early dispute regarding the predecessor family property (the Avoca Street property), the joint ownership of the Cowper Street property by Zora, Nevenka and Veselinka (despite Veselinka living at Kilmarnock for much of the relevant period), and Zora's earlier will whereby she devised the residue of her estate to Nevenka and Veselinka in equal shares, omitting Branka. I am also conscious that it was Nevenka who became Zora's full-time carer when Zora's health deteriorated in around 2010, setting up a makeshift bedroom for Zora in her own unit from which she nursed her.

Obligations of the deceased and contributions to the deceased's estate and welfare

1. Having reviewed the principles applicable to claims by adult children, I am not satisfied that Zora owed Branka any obligations of care above and beyond what might be said to be usual, particularly given that Branka appears at all relevant times to have been self-sufficient. She has demonstrated extensive experience in trading in properties and canniness in making investments, and has only co-habited with her mother and sisters since 2001 for what she says are family (as opposed to financial) reasons. There is nothing to suggest any ongoing or material dependency on Zora on the part of Branka. The evidence before me is that she does not lack financial resources or reserves and owns property in her own right. Against this, Branka has an adult child who she has taken it upon herself to support - such as by providing rent-free accommodation and paying his tuition fees - well into adulthood and who might be regarded as a dependent of her own, and I note that this a relevant consideration in determining what might constitute appropriate provision for her maintenance.
2. In terms of contributions to Zora's estate and welfare, I again note that Nevenka's efforts outstrip that of Branka, but that Branka did contribute by providing some level of care and assistance to Zora while she was alive, and by assisting with renovations of the Cowper Street property. As stated above, I have found that these contributions to improving the Cowper Street property (and therefore part of Zora's estate) were more than nominal.

Nature of the estate or any property that could be designated as notional estate

1. The administration of Zora's estate was completed in 2018. The evidence before me is that the only property capable of being designated as notional estate of Zora is the Cowper Street property, which is presently held by Nevenka and Veselinka as tenants-in-common in unequal proportions (three-quarters and one-quarter shares respectively).
2. I have set out my conclusions as to the impact a notional estate order would have on the rights, interests and expectations of all relevant parties above.

Financial circumstances

1. Branka has assets with a combined value in excess of $1.33 million, including real property (the Prince Street property) and over $75,000 in savings. Her monthly income exceeds her monthly expenses by approximately $465. No evidence as to Branka's future financial needs was placed before me.
2. Nevenka has assets worth just over $3.8 million, including a 75% share of the Cowper Street property. Her monthly income exceeds her monthly expenses by around $2,657.50. Nevenka's estimated future expenses, including medical expenses, are not insignificant. I am satisfied that Nevenka, by reason of her chronic medical condition (but without entering into any detailed assessment or projection of the specific kind and cost of specialist treatment and domestic or in-home care assistance she may require at some future time), has substantial financial needs that, although presently met from her monthly income, may increase into the future with the progression of her illness.
3. Veselinka has assets worth approximately $1.3 million. Her monthly income exceeds her monthly expenses by approximately $325. I consider that she may have some moderate level of future financial need stemming from health conditions which she has deposed to suffering that is presently met by her monthly income.

Applicant's age, disability and present and future needs

1. There is no evidence of any physical, intellectual or mental disability of Branka, although I note her advanced age (71 years).

Deceased's testamentary intentions

1. The terms of the Will make plain Zora's intention that Nevenka would be the sole beneficiary in receipt of the assets of her estate.

Conclusion

1. In light of the above, in all the circumstances, I find that there would be no occasion to make an order for family provision in favour of Branka. The main factor compelling this conclusion is Branka's lack of need, which I discern from the present state of her financial circumstances (including ownership of unencumbered real estate in Randwick with a value in excess of $1 million) as disclosed. To my mind, that plain lack of need, in combination with Zora's clear testamentary intentions, the absence of evidence as to Branka's future needs or material dependence on Zora at any relevant time, and the other s 60(2) factors addressed above, means that, notwithstanding the Will conferred no benefit on Branka, provision was not inadequate and as such the jurisdictional requirement posed by s 59(1) of the Succession Act is not satisfied.
2. As an aside, I am minded to address Branka's submission as to the use to which the Prince Street property owned by her has been put. It was argued before me that the Prince Street property has effectively (although not technically) been gifted to Goran and his family, that it is their residence, and that she cannot, practically-speaking, live there with them. At the hearing, my attention was drawn to the "cultural overlay" of this arrangement (T162).
3. Whilst I accept that Branka has made the decision to support her adult son by providing him and his family with a home in which to live without paying rent, and I accept that it would, perhaps, be culturally inappropriate for her to request that he vacate the Price Street property, as a matter of law, she is the absolute owner of that property and is entitled and has the capacity to use it to meet her own accommodation needs - in the same way that Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to terminate the tenancy at will pursuant to which Branka occupied various parts of the Cowper Street property since 2001. The court must give due weight to Branka's ownership of the Prince Street property as part of her unencumbered assets for the purposes of determining the adequacy of provision under s 59, and, had I not already determined both that Branka's application under s 58(2) of the Succession Act should be refused and that no notional estate order should be made, I would have done so.

ISSUE 5: POSSESSION

1. Having determined all of the claims made in the cross-claim by Branka adversely to her, Branka has no right to remain at the Cowper Street property and each of Nevenka and Veselinka as the registered proprietors of the Cowper Street property are entitled to bring an end to Branka's occupation of the Cowper Street property.
2. Branka has previously been asked to leave the Cowper Street property: on 14 June 2021, by the letter of demand sent by Nevenka to Branka, which Branka received on 21 June 2021, demanding that she leave within two weeks; on 5 January 2022, by the termination notice sent by Nevenka to Branka, demanding that she leave within two weeks; and on 24 August 2022, by the letter from Adams & Co to Branka demanding that she leave within two weeks.
3. In all the circumstances, Nevenka and Veselinka are entitled to judgment for possession of the Cowper Street property. There is no basis on which the execution of a writ for possession should be delayed in light of the fact that Branka is the registered proprietor of the Prince Street property into which she is able to move.

COSTS

1. The costs of the proceedings, calculated on an indemnity basis up to and including the completion of the four-day hearing before me, of Nevenka and Veselinka are estimated to be $133,000.00 (exclusive of GST).
2. Branka's costs of the proceedings, calculated in the same manner, are estimated at $110,000.00 (exclusive of GST).
3. As the administration of Zora's estate has been completed, and I have determined that no notional estate order should be made, no costs can be awarded out of the estate or the notional estate of Zora. Accordingly, I will direct that the parties provide brief written submissions in respect of any proposed costs order, with the intention that the issue of costs, if disputed, be dealt with by me on the papers.

ORDERS

1. For the reasons I have given above, I propose to make the following orders: 1. Order that the cross-claim filed 5 December 2022 be dismissed. 2. Judgment for the plaintiffs against the defendant for possession of the whole of the land known as XX Cowper Street, Randwick, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 1 in Deposited Plan 81492 (Property). 3. Grant leave to the plaintiffs to issue a writ of possession in relation to the Property. 4. Direct that: 1. The plaintiffs file and serve any submissions in respect of costs (limited to two pages, size 12 font, 1.5 spacing) within 7 days of today. 2. The defendant file and serve any submissions in respect of costs in response (limited to two pages, size 12 font, 1.5 spacing) within 14 days of today.

Amendments 04 December 2024 - Table of contents added 21 February 2025 - Table of Contents - corrected numbering. 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: 21 February 2025