Plaintiff v Defendant

1 Khiem Tran died on 20 July 2018 aged 62 years. He was survived by his three sons, Tony ('the plaintiff'), Anthony and John, as well as his partner, Lan Nguyen, and his former wife, Kim Lien Thi Tran.

2 Probate of the deceased's last will was granted to Michael Chau Trung Hoang ('the defendant') on 26 November 2018. The inventory of assets filed with the application for probate records that the deceased's estate was estimated to have a net value of $865,788.

3 The plaintiff seeks to enforce a written agreement dated 6 June 2017 ('the deed') and asserts that pursuant to the deed, the deceased was to pay him $300,000 and that he failed to do so. The defendant admits to the existence of the deed, but denies that he is obliged to pay the plaintiff.

4 For the following reasons the Court has determined that:

(a) the gift expressed under cl 1(a) of the deed cannot be specifically performed; and

(b) while cl 1(a) may form the basis of common law rights, the plaintiff did not plead any losses or make submissions specifically in this regard.

5 The deed is a typed document and has a cover sheet titled 'Deed of Agreement'. It is expressed to be between the plaintiff, the deceased and Anthony. The deceased and Anthony are referred to as '[f]ather' and '[s]on' respectively. After setting out brief recitals, the typed text of the deed provides under cl 1 'Transfer of Monies':

(a) The [f]ather shall expressly and irrevocably gift [the plaintiff] of [Bouverie Street] an amount of $300,000 ([p]ayment) by Wednesday 26 July 2017.

(b) The [plaintiff] must immediately provide a written receipt to the [f]ather and son once the [p]ayment has been received and cleared in his bank account.

(c) The [s]on, upon notification of receipt of [p]ayment from [the plaintiff] must do all acts and things necessary to vacate from [Gipps Street] by Monday 31 July 2017.

(d) The [f]ather agrees the [s]on may reside at [Gipps Street] indefinitely if the [p]ayment is not received by [the plaintiff] by Wednesday, 26 July 2017.

(e) [The plaintiff] must return the [p]ayment to the [f]ather should the [s]on not vacate [Gipps Street] by Monday, 31 July 2017.

(f) The [f]ather and the [s]on agree the [p]ayment is an irrevocable gift to [the plaintiff] for use at his discretion.

(g) The [f]ather and the [s]on agree to that [the plaintiff] shall not be liable for any costs or damages arising from non-performance of obligations by the [f]ather or [s]on under this [d]eed.

6 Handwritten amendments have altered the dates in cl 1(a) and cl 1(b) to Friday 28 July 2017.

7 Clause 2 of the deed continues to set out how it is to be interpreted and cl 3 states that:

The [f]ather, the [s]on and [the plaintiff] each state and warrant to the other party that as recorded in this agreement that before this agreement was signed by him or her, he or she was provided with the opportunity to obtain independent legal advice from a legal practitioner on the following matters:

(a) The effect of the [d]eed on the rights of that party; and

(b) It is noted that the [f]ather, the [s]on and [the plaintiff] has [sic] waived their right to seek independent legal advice from a legal practitioner as to the making of the agreement.

According to cl 7, the deed is said to be 'binding upon the heirs, executors, administrators and assigns of each party'.

8 The plaintiff pleads that pursuant to the deed, the deceased agreed to pay him $300,000. Specifically, it is asserted that the express terms of the deed provide that the deceased 'shall irrevocably gift (ie pay to) the plaintiff an amount of $300,000 before 28 July 2017 for the plaintiff's use at his discretion'. Further, that:

(a) there was an implied term that the plaintiff would use reasonable endeavours to try to cause Anthony to vacate the property at 162 Gipps Street, Abbotsford ('Gipps Street') by 28 July 2017;

(b) he used reasonable endeavours to try to cause Anthony to vacate Gipps Street;

(c) Anthony vacated Gipps Street on or before 28 July 2017; and

(d) that in breach of the deed, the deceased failed to pay the plaintiff $300,000.

9 It is additionally claimed that if the deed cannot be enforced, the defendant is estopped from now denying that the deceased entered into the agreement.

10 The defendant does not challenge the fact that the deceased executed the deed. However, he pleads that by preparing and procuring the deed, the plaintiff took unconscientious advantage of the deceased. It is also asserted that the funds were to be held by the plaintiff on trust for Anthony, or alternatively, that the deed provided for a gift to be paid to the plaintiff that the Court cannot compel.

11 An issue at the commencement of trial was whether it was agreed between the parties that the $300,000 gift to the plaintiff was in consideration for him providing services removing Anthony from Gipps Street. The plaintiff submits that it was apparent from para [2A(h)] of the amended defence, and the reply admitting that sub-paragraph, that the parties were ad idem on the pleadings. Further, that the defendant cannot seek to walk back on or retract his admission on such a central issue.

12 At trial, counsel for the defendant denied admitting that there was consideration, or that the agreement records consideration. While he noted that he could understand how the plaintiff may say that, it was submitted that it is clear from the amended defence that [2A(h)] was part of an alternative defence.

13 The purposes of pleadings includes stating to an opposing party how the party pleading puts its case, and to determine what evidence is to be put at trial.[1] An admission in a pleading is a serious step, as it means that proof 'is no longer required or permitted of the fact admitted as the fact is no longer in controversy between the parties'.[2]

14 In the current circumstances, sub-para [2A(h)] states that 'the payment of the sum of $300,000 in consideration of the plaintiff procuring the vacation of [Gipps Street] by Anthony is manifestly excessive'. Upon its face, that subparagraph appears to admit that the deed required the plaintiff to provide consideration in return for the payment of $300,000. Further, the amended defence does not specifically respond to the assertion in the amended statement of claim that there was an implied term of the deed that the plaintiff would use reasonable endeavours to try to cause Anthony to vacate Gipps Street. However, para [12] of the amened defence pleads in the alternative that the deed provides for a gift. Although the matter of consideration is not specifically addressed in that paragraph, it is apparent that the assertion of a gift puts it in issue. Indeed, as much is suggested by the plaintiff's reply, which draws attention to the inconsistency between sub-para [2A(h)] and para [11] in the amended defence. Accordingly, the amended defence is sufficiently clear that as an alternative case, the defendant was putting in issue the notion of consideration.

15 In addition, para [10] of the amended statement of claim states that '[I]n the premises, the [d]efendant is liable to pay the [p]laintiff $300,000 in respect of the deed'. Paragraph [10] of the amended defence admits this. However, this admission was not raised or further pursued by the parties.

16 The plaintiff relies upon affidavit and oral evidence that both he and John gave, as well as certain transfers of land, and bank records of the deceased.

17 The defendant gave evidence and adduced evidence from Ms Nguyen, and her daughter Lanna. He also relies on medical records from the Royal Melbourne Hospital, an extract of the plaintiff's Linkedin record, and affidavits of the plaintiff filed in a separate proceeding.

18 The plaintiff has raised a number of objections to the defendant's evidence. These objections be summarised as follows:

(a) paras [5]-[11] of Ms Nguyen's first affidavit on the basis of hearsay or that it is otherwise misleading or confusing;

(b) paras [4]-[6] of Ms Nguyen's second affidavit on the basis of hearsay, opinion and a lack of relevance;

(c) para [5] of the defendant's affidavit is asserted to be hearsay and inadmissible opinion evidence;

(d) para [2]-[5] of Lanna's affidavit on the basis of hearsay, opinion and a lack of relevance.

19 The defendant made specific submissions replying to each of these objections, and also generally asserts that the plaintiff's failure to take action regarding the alleged gift or payment during the deceased's lifetime is relevant to the Court's discretion regarding the evidence, that is, the defendant is now prejudiced in defending the claim.

20 The first two sentences of para [5] of Ms Nguyen's first affidavit set out her beliefs concerning the plaintiff's evidence. Even if relevant and admissible as going to credibility,[3] they are of little assistance to the Court. The third sentence then states 'the history in relation to Gipps Street described to me by [the deceased], which I believe to be true, is set out below'. Paragraphs [6] to [11] then refer to living arrangements at Gipps Street; an agreement said to be made between the deceased and his former wife; events when Anthony was living in Gipps Street in 2017; a Victorian Civil and Administrative Tribunal ('VCAT') proceeding between the deceased and Anthony in 2017; a family meeting said to have occurred between the deceased, Anthony, the plaintiff and John; and an agreement that is said to have been entered into between the deceased and Anthony, with which the plaintiff was purportedly upset.

21 The defendant filed a notice concerning paras [6]-[11] pursuant to s 67 of the Evidence Act 2008 (Vic), relying upon s 63. However, as the plaintiff submits, that notice does not extend to the second-hand hearsay evidence concerning representations by Anthony. As to the 'agreements' referred to, in the Court's view, if the deceased represented to Ms Nguyen that he had entered into an 'agreement' with his former wife or Anthony, that representation would amount to first-hand hearsay.

22 The plaintiff submits further that the remainder of the paragraphs fail to identify the specific representations made by the deceased and as such, should be excluded as misleading or confusing.[4] The evidence is also said to be unfairly prejudicial on account of its ambiguous and vague nature. Against this, the defendant submits that the representations are clear. In the Court's view, the evidence is relevant to the circumstances surrounding entry into the deed. It is not misleading or confusing. Rather, it lacks specificity. In the context of a judge alone trial, however, the Court is not prepared to exclude the evidence.[5] Instead, the question is one of weight.

23 Paragraphs [4] to [6] of the Ms Nguyen's second affidavit concern the deceased's health. The plaintiff submits that they contain hearsay representations of the deceased,[6] or are otherwise inadmissible as irrelevant or opinion evidence. The defendant asserts that the evidence is relevant concerning any special disability that the deceased was under, and seeks to rely upon the representations as to the fact that they were said, rather than as to their truth.

24 The evidence is relevant to the issue of whether the deceased was 'very ill' for the purposes of establishing any special disability. Paragraphs [5] and [6] state Ms Nguyen's direct observations. However, para [4] recounts representations made by the deceased concerning side effects of his medications. The fact that the deceased made the statements may go to his state of mind,[7] specifically that he had concerns regarding his medications and believed that they were leading to side effects, rather than to proof of the fact that he was suffering from the side effects. Such evidence is relevant as to the assertion of a special disability and admissible.

25 In para [5] of his affidavit the defendant deposes to interactions with the deceased weekly in the period from January to July 2017. He makes certain observations in this regard. The conclusion that the deceased's 'health appeared to deteriorate quickly' tends toward opinion rather than a direct observation, and is based upon primary facts which are not too evanescent or complicated to separately identify. As such, s 78(b) does not appear to be satisfied.[8] Further, even if the statement could be viewed as a relative observation of a primary fact and is admissible, it has little probative value beyond the specific observations upon which it appears to rely.

26 To the extent that para [5] recounts certain statements of the deceased, without a s 67 application, the statements are inadmissible hearsay.

27 Paragraphs [2] to [5] of Lanna's affidavit concern the health of the deceased, his ability to read English, and certain Facebook posts. The plaintiff asserts that the paragraphs contain inadmissible hearsay evidence and opinion evidence about the deceased's English writing skills.

28 The conclusions of Lanna in para [2] that 'the deceased's health appeared to deteriorate' appears to suffer from the same shortcomings as the statement by the defendant. Again, without a s 67 notice, the second sentence in para [3] is inadmissible hearsay. As to the remaining portions of the evidence, Lanna is directly recounting requests by the deceased and assistance that she then provided. Save for her opinion that the deceased's English reading and writing skills 'were very poor', the evidence is admissible.

29 Finally, the Court will address the defendant's general submission concerning prejudice. The material upon which he relies relates to the equitable defence of laches. It is not apparent from the pleadings or submissions that such a defence was pressed, nor how the prejudice complained of applies to the question of whether the evidence sought to be adduced by the defendant is admissible. In any event, although the defendant's case has been impacted upon by the death of the deceased, as is noted below, resolution of the issues chiefly surrounds construction of the deed and the existence of other documentary evidence, and any delay between the events in question and the commencement of the proceeding is not so great that either party has raised the inability to access documents as a relevant issue.

30 The following summary is taken from the evidence of both parties, noting that on some issues, there is a degree of conflict.

31 The deceased emigrated from Vietnam in around 1982. He and Ms Tran had three children: the plaintiff, Anthony and John. The deceased trained as a mechanic and over the next 20 years the couple established both a mechanic business and a milk bar and they also invested in numerous properties.

32 In around 2001 the deceased and Ms Tran divorced. Ms Tran purchased a property in Sandringham, and the deceased retained the properties that had been acquired during the marriage, including a property at Gipps Street. The plaintiff deposes that it was his understanding that the property settlement between the deceased and Ms Tran involved a plan that the deceased retained the property portfolio so that he could eventually pass a property onto each of his sons. The plaintiff was to receive Gipps Street. John similarly deposes that the deceased repeatedly told him that he would 'hold the properties for us'.

33 According to the plaintiff, after the separation of his parents he took on a 'father figure role' with his brothers.

34 In around 2007, the deceased was diagnosed with leukaemia. He was initially unwell, but received chemotherapy and by 2010 had returned to full time work. During this period he purchased a mechanic's workshop.

35 The plaintiff deposes that in or around 2010 the deceased asked him to move into the Gipps Street property with John. The two lived there for the following six years. John deposes that he and the plaintiff lived together so that the plaintiff could take care of him when the deceased was absent.

36 Ms Nguyen gives evidence that initially all three of the deceased's sons lived at Gipps Street. The plaintiff and John are said to have left the property 'after a few years' and Anthony remained there.

37 In or around 2016 the deceased was in and out of hospital. According to the plaintiff, the deceased stated in late 2016 that he was selling some of his properties because he was near the end of his life. In oral evidence, the plaintiff initially denied that the deceased was unwell and getting his affairs in order, and instead was trying to 'manage his finances'. When taken to his affidavit, the plaintiff stated that the deceased mentioned both reasons.

38 According to the plaintiff, the deceased sold a property at Liston Drive, Newport ('Liston Drive') on 10 October 2016. An undated transfer of land for a property in Newport was tendered in this regard, however it is undated. The plaintiff deposes that when the deceased sold Liston Drive he stated that he would use the proceeds to 'pay off the mortgage and make repairs' on Gipps Street.

39 Ms Nguyen deposes that from 2016 the deceased had to go to hospital on multiple occasions for treatment, and that he was taking a large amount of medication. He is said to have expressed concerns that he had regarding those medications. Ms Nguyen states further that it was difficult to speak to the deceased for any longer than 15 to 30 minutes. Multiple times he appeared not to understand what she was saying. Further, the deceased had difficulty remembering things such as appointments.

40 On 18 September 2016 the deceased executed his penultimate will, appointing Anthony as executor and dividing his estate equally between his sons and his sister.

41 John deposes that in November 2016 the deceased was very ill. He was going in and out of hospital more often. Further, he deposes that the deceased stated that he wanted to renovate Gipps Street so that they could spend more time together there.

42 Between January 2017 and June 2017 at various times the deceased was admitted to hospital for treatment of his leukaemia.

43 In or around January 2017 the plaintiff visited the deceased in hospital. The deceased is said to have stated that if the plaintiff paid him $200,000 he would give Gipps Street to the plaintiff. The plaintiff deposes to being angry at his father, as the proposition was inconsistent with his understanding regarding Gipps Street. Also at this time, the deceased is said to have suggested that Anthony move into Gipps Street to 'fix up the house'. The plaintiff refers to having no contact with the deceased around this time.

44 Around mid-January 2017 Anthony moved into Gipps Street with the plaintiff and John. John gave evidence that the plaintiff was not there permanently, but was between Gipps St and his fiancé's residence. He additionally deposes to anti-social behaviour by Anthony and damage to the property, and recalls the deceased telling him that:

He was going to pay $300,000 to [the plaintiff] in order to get Anthony out of [Gipps Street], and in recognition of [the plaintiff's] efforts in looking after the family, including looking after me at [Gipps Street].

Further, that the deceased told him that he wanted Anthony out of the house because he was 'wrecking the property'.

45 Ms Nguyen deposes that in or around 2017 the deceased could not work due to his illness, and that he asked Anthony to leave Gipps Street so that rental income could be obtained from the property.

46 Anthony demanded that the deceased pay him $400,000, and later, $500,000, in order for him to vacate Gipps Street.

A family meeting occurred between [the deceased], Anthony, [the plaintiff] and John. [The deceased] agreed to give Anthony $300,000 to leave Gipps Street, but on the basis that [the plaintiff] would hold the money on trust pending Anthony completing his studies.

She admitted during cross-examination, however, that she was not present at the alleged meeting.

48 Bank records show that in January 2017 the deceased had $399,350 in an account, and a loan balance of $1,100,844. At that time, it appears that he owned Gipps Street, as well as properties at Baker Street, Richmond ('Baker Street') and Dinnell Street, Sunshine West ('Dinnell Street').

49 Lanna was living with the deceased and Ms Nguyen between January 2017 and June 2017. She deposes that at that time the deceased suffered significant weight loss and would often collapse while he was walking. He was also said to be withdrawn and isolated.

50 According to Lanna, the deceased would often ask her to translate documents into Vietnamese and fill out forms in English. In contrast, the plaintiff gave evidence that the deceased was extremely skilled in understanding legal documents in English as he dealt with many documents associated with his property investments and business and never asked the plaintiff to translate anything.

51 Lanna also deposes that the deceased asked her to translate and take a copy of certain Facebook messages that he had found on his laptop. Screenshots of Facebook messages are exhibited in this regard, showing the date of the desktop as 13 January 2017. The Facebook messages appear to be from Anthony's Facebook account, depicting conversations that he had with, among other people, the plaintiff between 9 and 11 January, and 'Matt' on 2, 3, 5 and 10 January. According to Lanna, the screenshots do not show all of the messages in the conversations. Rather, after translating the messages for the deceased, she took screenshots of particular messages at his direction.

52 In messages between Anthony and Matt on 2 and 3 January 2017, Anthony refers to a discussion between the plaintiff and deceased on 2 January 2017 ending the relationship between the two, and worrying about his older brother. He also identifies himself as the executor of the plaintiff's will, and refers to the deceased stating to him that he 'needed to be homeless because he was reneging on [Anthony's] inheritance'. A message from Anthony on 5 January 2017 provides 'I saw my dad this morning. I have an eerie feeling I just said my last good byes'.

53 At the time of the messages the plaintiff was living with Anthony at Gipps Street a few days a week and talking to him regularly. An exchange of messages between the two on 9 January 2017 relates to the deceased liquidating his assets prior to his death but being unable to 'divest', with the plaintiff appearing to find such a scenario humorous. Anthony then refers to coming in and zapping 'it for us', before the plaintiff replies, 'that would be poetic justice ROFL'. During cross-examination the plaintiff sought to explain these messages as 'trolling' or 'mucking around' with Anthony.

54 The following day the plaintiff asks how Anthony is, and he replies, among other things:

My poa is revoked but all the money has been moved so there is nothing dad can do about it[.]

I tried to call dad this morning to give him one last chance. He refused to pick up.

55 The plaintiff responds: 'one last chance at what?', before Anthony replies '[f]orgiveness' and the plaintiff responds: 'lol u are silly'. Anthony also offers to pick goods up for the plaintiff at a store.

56 Messages from Anthony to Matt on 10 January 2017 state: '[m]y father made an enemy of me last night, said the cruelest [sic] things. Revoked my POA ... I'll help him out of duty... right now IU [sic] have to look after my brother and I's future'.

57 On 11 January 2017 a message from Anthony to the plaintiff states: 'I can withdraw 400k in one go', and the plaintiff responds 'Kk do it'. The reference is to funds in the deceased's bank account. When cross-examined, the plaintiff confirmed that he told Anthony to transfer the funds, but that he was relying upon Anthony regarding the justification for the transfer. Further, he confirmed that he did not want to upset his brother at the time by questioning the basis for the transfer. As to another message that the plaintiff sent, stating 'you just need to get it out b4 [sic] he realises', he gave evidence that this meant that Anthony should withdraw the funds before the deceased changed his mind. The 'whole genesis' of the messages was said to be Anthony telling him that the deceased let him withdraw $400,000 from his account.

58 The plaintiff's oral evidence that the transfer occurred in January 2017 is somewhat inconsistent with his affidavit evidence, in which he deposed that the transfer of funds occurred in around February or March 2017, 'or shortly before'.

59 A further message from Anthony on 11 January 2017 states 'I don't even know if he is still alive' to which the plaintiff replies, '[y]eah I am getting those doubts too[.] He could be a veggie', before raising the possibility that 'they' could 'keep him veggie at home'. Anthony then refers to the 'game plan' not changing either way. The plaintiff denied that that reference meant getting as much money from the deceased as they could before he died. A later message of the plaintiff states 'wonder if you can sell the garage through your POA'. During cross-examination he sought to explain this as meaning that he was wondering whether it was possible in the context of the deceased consenting to the sale. Further, he explained that he did not know whether the power of attorney was actually revoked.

60 Another message sent by the plaintiff refers to keeping tabs on whether the deceased was 'alive or alive but a veggie' and states '[n]ow it's a race'. According to the plaintiff, this referred to the situation being much messier if the deceased became 'unavailable' in circumstances in which he had told Anthony that he could sell the garage.

61 The plaintiff denied that he said to the deceased that the deceased would have to pay him and Anthony $500,000 in order for them to move out of Gipps Street. However the plaintiff's reply admits that Anthony made such a demand.

62 It is difficult to place the times and dates with certainty, but on what appears to be 13 January 2017, a message from Anthony refers to being unable to access his bank accounts. A message from the plaintiff that afternoon reads:

See this is an opportunity to act calm and composed when dealing with ridiculous ppl [sic]

u [sic] need to come across as a considered adult not some kid that just did what he thought he wanted to do

so the basis for the money is that dad promised it to you and you acted on his promise

and with supporting evidence, that is why the money is yours[.]

63 A message from Anthony states 'Dad just sent me a text saying "call me now this is your last chance"'. A later message from the plaintiff to Anthony reads, among other things: 'now ur [sic] just protecting what is yours ... all dat [sic] money'. Anthony replies: '[i]t's our money and our future ... Come pick me up for food tonight?'.

64 At 9.37pm, a message from Anthony to Matt reads, among other things, 'Dad told me to shift 400k from his account into mine and not to touch it until he dies'. Messages from the plaintiff to Anthony an hour later provide a link to a job advertisement and state 'worth u [sic] applying for this'.

65 It appears that on 13 and 15 January 2017 the deceased made certain statements to the police in relation to the transfer of funds by Anthony.

66 The deceased executed his last will on 23 January 2017. Among other things, it appoints the defendant as executor, gives the property constituting the 'matrimonial home' to the defendant upon trust for Ms Nguyen, and divides the residuary between the plaintiff, Anthony, John and Ms Nguyen. As expressed, the latter is to receive 97 per cent of the residuary while each of the deceased's sons receives 1 per cent. The witnesses to the will are medical practitioners of the Royal Melbourne Hospital. According to the plaintiff, the property in which the deceased and Ms Nguyen were living in at the time was registered to the Director of Housing.

67 The plaintiff noticed damage to the Gipps Street property in or around February 2017.

68 In or around March 2017, the deceased commenced VCAT proceedings seeking to have Anthony vacate Gipps Street. Those proceedings were unsuccessful.

69 The plaintiff deposes that in the period after the VCAT proceeding Anthony attempted suicide. Also around that time, he had a conversation with the deceased outside Gipps Street. The deceased is said to have apologised for the argument the two had earlier in the year, and stated that:

(a) he was upset and angry with the damage to Gipps Street; he considered that his lawyers had failed him in relation to the VCAT proceeding; and that in light of the unsuccessful VCAT proceeding, he would pay the plaintiff $300,000 if he helped move Anthony out of Gipps Street; and

(b) that he wanted to make amends for the plaintiff looking after John and Anthony.

70 According to the plaintiff, he expressed his frustration that the deceased would make promises but not keep them. He deposes that he and the deceased agreed to documenting the agreement to pay him $300,000. Further, that the sum was suggested by the deceased, and that the deceased directed the plaintiff as to the substance of the document, including that:

(a) it was strictly a family only matter and he would not agree to any deed if lawyers were involved; and

(b) he wanted the payment 'to be tied to [the plaintiff] successfully moving out of Gipps Street'.

71 The deceased is also alleged to have said that he wanted the deed to be binding, although he did not specifically request cl 7 to be binding upon 'heirs, executors, administrators and assigns'. In this regard, the plaintiff denies that his main purpose in drafting the deed was to bind the deceased to make the gift and make sure that if he died he could sue the deceased's executor.

72 During cross-examination the plaintiff stated that the start of the conversation, in which he and the deceased 'made peace', concerned the purchase of the plaintiff's new home in Caroline Springs, his plans to move out of Gipps Street in August 2017, and the plaintiff's level of debt.

73 The plaintiff was taken to paragraphs of an earlier affidavit of his filed in a separate proceeding (the 'pt IV affidavit'). There, he deposed that the conversation was the 'last meaningful conversation that he had with the deceased' and that it occurred in March, when he was still living at Gipps Street. At the time the deceased said to him that he would give the plaintiff $300,000 as thanks for looking after John and Anthony; the plaintiff replied that the deceased's money was not important to him; and, that the deceased insisted on the gift. During cross-examination, the plaintiff agreed that this was the same conversation that he deposed to in this proceeding.

74 In the pt IV affidavit, the plaintiff also deposed that he and the deceased had a conversation a few months after Anthony had moved in, in which the deceased said to him that if he helped resolve things with Anthony, the deceased would give him $300,000. The plaintiff deposed further that he was frustrated by promises that the deceased would make and not keep. Specifically, he stated that 'in March 2017 he told me that he would give me $300,000 but I had not received the money'. As such, he asked the deceased if he was prepared to put the agreement in writing. During cross-examination, the plaintiff gave evidence again that this was the same conversation as deposed in this proceeding, and agreed that the reference to the $300,000 was to the same $300,000 as earlier discussed.

75 The plaintiff also denied that he asked the deceased to put the agreement in writing. Rather, it was said to have been a written agreement upon the deceased's request. The deceased said to him: 'I want to give you money to - to help me move Anthony out, and I want a document that - if Anthony doesn't move out, I want to use it against him'. When the inconsistency between that evidence and his evidence in the pt IV affidavit was drawn to the plaintiff's attention, he stated that 'the asking' was in response to what the deceased had asked him, that is, to have something to use against Anthony. This discussion was said to have occurred in April.

76 During cross-examination, the plaintiff acknowledged that although he had deposed in his earlier affidavit that he and John had moved out of Gipps Street in April 2017, it was not until August 2018 that he 'fully moved out'. Up until that point he stated that he was 'transitioning out' of Gipps Street, such that the evidence deposed was a 'half-truth'.

77 According to the plaintiff, he used Google to help draft the deed, using search terms 'conditional gift', 'gift deeds' and 'conditional payment'. The former was said to have been used because 'that's what I started out as, just ... as an initial thought'. He denied having an understanding of what a 'conditional gift' meant. At the time of drafting the deed, he had approximately six or seven years' experience working as a financial services lawyer. When asked why he did not describe himself as a lawyer in his affidavit, the plaintiff stated that he was known as a risk and compliance expert, not a lawyer.

78 The plaintiff agreed that although the recitals of the deed provide that he was living in Carlton, he was still living at Gipps Street at the time.

79 As to use of the phrase 'irrevocably gift', the plaintiff stated that he was trying to translate, as best he could, 'from a Vietnamese discussion ... to an English agreement'. According to the plaintiff, the Vietnamese word that the deceased is said to have used in the familial context meant 'a payment that has the characteristics of both, a payment and a gift', as distinct from a present. Further because it was not a:

full-blown like, legal agreement, I couldn't go into all the permutations and everything of what he meant, et cetera. It was just irrevocably a gift because when a parent gives to a child from a highly patriarchal family, whatever my father gives to me, if it's conditional then I just trust him to give it and provided that, you know, if he set conditions that I needed to earn it by way of procuring [indistinct] amount of property or et cetera, then that's what it is. It's a payment.

80 When asked why the deed does not provide for the condition that he was asserting, the plaintiff stated that 'it's just implied', and that if he wanted the money, he needed to make sure that 'the sequence of events in the [d]eed happened'. He later agreed that he was satisfied that the document represents his agreement with the deceased. When re-examined on why he did not include any of his obligations in the deed the plaintiff stated:

One is I had every confidence that my - my dad would pay me, but the - the other part was that I was trying to also translate as best I could, um, from Vietnamese ... he used the words, 'I will pay you with, like, a gift, in like, a conditional context rather than - he didn't use the words, like, 'present', and I realise in the English language 'present' and 'gift' are kind of the same thing, but in Vietnamese it - they're not the same.

Further, he stated that he did not put in the condition because it was 'plainly obvious' what all the obligations were and what he needed to do to earn the money.

81 During cross-examination, the plaintiff initially denied that anyone ever referred to the $300,000 being for Anthony's benefit. When pressed specifically as to discussion surrounding accommodation for Anthony, however, he then responded: '[y]es, there was. And that discussion fell away when my mum said, "[h]e's got his name on the public housing lease. Get him back here. I've got no problems. We will put him right"'.

82 According to the plaintiff, he handed the deceased copies of the deed in April and May, before providing the final copy in May or June. He does not recall where he gave the final copy to the deceased.

83 A transfer of land dated 30 May 2017 indicates that the deceased transferred the Baker Street property for consideration of $791,000. It appears to have been executed on the deceased's behalf by Zarko Lukan, pursuant to a power of attorney dated 23 February 2017.

84 The deed was executed at Gipps Street on 6 June 2017. The plaintiff deposes that at that time he watched the deceased read through the deed and request the handwritten amendment to cl 1. The deceased was also said to be 'his normal self' and 'walking and talking normally'.

85 John similarly deposes that the deceased, the plaintiff, Anthony and Kade Neale were at Gipps Street when the agreement was signed. He deposes that the deceased put his glasses on and read through the deed, before asking to change some of the dates. During oral evidence he also stated that the deceased was 'in fine condition'.

86 As to the deed having a different witness for the deceased compared to that of the plaintiff and Anthony, the plaintiff stated that the deceased 'absolutely wanted John to witness to see the difference between what an obedient son would get and a disobedient son', and also because the plaintiff was concerned about allegations of fraud because it was 'all in the family'.

87 Hospital records show that the deceased went to the hospital on the same day, for what appears to have been a review and vaccinations.

88 Bank records indicate that in May 2017, the deceased had a loan balance of $1,100,844 and cash in a savings account of $180,133. Further, significant transfers were being made between the savings account and what appears to be a business account.

89 The plaintiff deposes that after the March 2017 discussion with the deceased and the execution of the deed, he undertook activities to convince Anthony to move out of Gipps Street. This was said to be 'especially so' after the deed was executed. The activities are said to have included:

(a) speaking regularly with Anthony to try to motivate him to find tertiary study;

(b) paying for lunches and dinners two to three times a week;

(c) providing Anthony with spending money;

(d) paying for Anthony's motor vehicle toll account;

(e) answering phone calls and providing emotional support;

(f) negotiating with Ms Tran so that Anthony could move back into public housing; and

(g) arranging a job interview for Anthony at John's workplace.

90 When, during cross-examination, the plaintiff was referred to the Facebook messages from January suggesting that he was already assisting Anthony and had his trust, he stated that he went from buying Anthony a Sunday lunch to 'fully taking him out to a restaurant', listening to him and motivating him. Specifically, he gave evidence that during the five to six week period after 6 June 2017 he:

(a) encouraged Anthony to attend Bible College;

(b) took Anthony out to dinner three or four times each week rather than just having quick dinners;

(c) provided Anthony with approximately $1,000 spending money in cash; and

(d) spent 'hundreds of dollars' paying for Anthony's toll account.

Further, by early July he had 'bedded down' the issue of where Anthony was going to live, after negotiating with his mother.

91 A 'contract of settlement' signed by the deceased was acknowledged by Anthony on 14 July 2017. By its terms, in consideration for Anthony vacating Gipps Street the deceased agreed to pay him $100,000. Upon receipt of the funds Anthony was to vacate Gipps Street by 14 July 2017. The cover sheet of the document displays the name of a law firm, and the deceased's signature is witnessed. It is not disputed that Anthony received $100,000 at around that time.

92 Anthony moved out of Gipps Street on or about 17 July 2017.

93 The plaintiff was unaware that the deceased and Anthony had entered into the agreement until after the deceased's death. He also did not know where Anthony had relocated.

94 John gave evidence that he learnt of the payment to Anthony when catching up with the deceased and Anthony. The deceased spoke about paying Anthony 'a sum of money to effectively say that he was no longer part of the family'.

95 The plaintiff deposes that at some time in July 2017 the deceased stated that he wanted to do everything that he had promised in the conversation in March, including paying the plaintiff the $300,000.

96 During cross-examination, the plaintiff initially gave evidence that after Anthony moved out he did not follow up the alleged gift of $300,000 because he 'had no capacity to do anything'. He was working long hours and under extreme mental stress. Further, it would have been 'extremely rude' to have inquired as to the payment with the deceased. He then denied that he did not do anything and 'waited until [the deceased] died', stating that he would have talked to the deceased about it in the second half of 2018, when he managed to have some 'air time', but it would have been an extremely delicate subject. The plaintiff did not depose to raising the issue with his father in 2018 in his affidavit or the pt IV affidavit.

97 According to the defendant, in the period between January 2017 and July 2017 he saw the deceased weekly. Over that period, bruises appeared on the deceased's body and his face was pale. The deceased also seemed tired and to be suffering from fatigue.

98 The plaintiff was made redundant in September 2017.

99 The deceased died on 20 July 2018. Ms Nguyen deposes that while in hospital in the period immediately before his death, the deceased gave her instructions as to the payment of certain debts.

100 Gipps Street was sold in September 2019 for $1.12 million.

101 On 2 April 2019 the plaintiff demanded payment of the $300,000 from the defendant, or alternatively, an amendment to the inventory of assets and liabilities concerning the deceased's estate.

102 It is of assistance to briefly consider the evidence of the parties.

103 As a party to the deed, the plaintiff's evidence is of particular significance. However, it is apparent that at times it displayed inconsistencies. The plaintiff himself admitted that certain statements that he deposed were 'half-truths'; his affidavit evidence in this proceeding bears significant inconsistencies with that deposed in the pt IV affidavit; and at times his oral evidence appeared to vary, and was inconsistent with contemporaneous documents. While he was prepared to admit to the 'half-truths', the inconsistencies surrounding key conversations that the plaintiff had with the deceased and his relationship with Anthony mean that the Court approaches his evidence with a degree of caution.

104 John's evidence did not suffer from the same inconsistencies, and he presented as a reliable witness. While his evidence was non-specific as to dates, he deposed to the words and phrases that he recalled the deceased stating during conversations.

105 The evidence of Ms Nguyen lacks specificity. For example, although she deposes to the deceased informing her of a family agreement, the details of this conversation were not stated. No explanation was given as to why a conversation of such significance, allegedly disposing of $300,000 in circumstances where, on the plaintiff's case, the deceased was under financial pressure, was not recalled in greater detail. Similarly, while the defendant gave evidence as to the deceased's health, this related to a six-month period.

106 On specific points of conflict, such as who was living at Gipps Street when, and why the deceased wanted Anthony to vacate Gipps Street, the Court prefers the evidence of John, as consistent with the plaintiff's evidence, over that of Ms Nguyen.

107 Lanna's evidence is chiefly limited to the copying of the Facebook posts and the deceased's ability to read and write in English. Regarding the latter, however, aside from the Facebook messages, specific instances in which Lanna had provided the deceased with assistance to read documents written in English were not provided.

108 On the whole, while particular evidence will be considered on each issue, in light of the caution with which the plaintiff's evidence is to be approached, and the generality of the evidence tendered by the defendant, the importance of contemporaneous documentary evidence is underscored.

109 The defendant accepts that the deed exists and was executed by the deceased. As such, the chief issue is whether in accordance with the terms of the deed, the defendant is required to pay the plaintiff the $300,000. As framed by the parties, this raises the following questions:

(a) is there an implied term that the plaintiff would use reasonable endeavours to try to cause Anthony to vacate Gipps Street;

(b) does the deed exhaustively provide for what was to happen in the event that the deceased did not transfer the $300,000;

(c) can the plaintiff seek specific performance of cl 1(a) of the deed;

(d) is the defendant estopped from denying that the deed is enforceable;

(e) was there unconscionable conduct; and

(f) was the intention of the deed to establish a trust?

Is there an implied term that the plaintiff was to use reasonable endeavours to try to cause Anthony to vacate Gipps Street?

110 The plaintiff asserts that pursuant to the deed, he, the deceased and Anthony agreed that the deceased would pay him $300,000 before 28 July 2017 on the condition that Anthony vacated Gipps Street. As Anthony vacated Gipps Street on 17 July 2017, he contends that prima facie, the deceased became irrevocably obliged to pay the sum.

111 He contends that the agreement that he made with the deceased in March 2017, that the deceased would pay him $300,000 if he helped move Anthony out of Gipps Street, was put in writing so that the deceased 'could use a legally enforceable document to help remove Anthony from the property'.

112 According to the plaintiff, although not stated expressly, the payment of $300,000 was 'in consideration for him procuring the vacation of the property by Anthony'. This is said to be 'made plain' by the fact that he could not retain the sum unless Anthony actually vacated. The express language of the deed is said to confirm that the deceased's liability to pay was made conditional upon the successful removal of Anthony from Gipps Street. The lack of any reference to the plaintiff's obligation in the deed is said to be because it was 'plainly obvious' what he had to do to earn the money. That is, there is an implied term to the effect that the plaintiff 'must use reasonable endeavours to cause Anthony to vacate [Gipps Street]'.[9] Anthony is said to have vacated Gipps Street as a result of considerable effort and some expense to the plaintiff.

113 Further, the deed was not prepared by any third party lawyer and was the result of simple drafting, the word 'gift' was used as the closest equivalent from Vietnamese to English. It is erroneous, and should read 'to pay'.

114 The defendant contends that the plaintiff's oral evidence to the effect that 'gift' means 'to pay' is confused and unconvincing. Moreover, the plaintiff agreed that the deed represents the agreement that he made with the deceased. It is submitted that that the $300,000 is a gift is consistent with the plaintiff's earlier affidavit and the Court should infer that the words 'irrevocable gift' were used as the deceased would not have agreed to any binding obligation.

115 Insofar as the plaintiff relies upon an implied term, the defendant submits that the asserted term is not necessary to give efficacy to the deed, nor is it so obvious that it goes without saying.[10]

116 The status of deeds as 'a very ancient form of transaction' was discussed in Laszczuk v Bendigo & Adelaide Bank Ltd.[11] There, the Court of Appeal noted that 'one of the consequences of the solemnity required in relation to deeds is that consideration is not required'.[12] As stated in Morley v Boothby:

The common law protected men against improvident contracts. If they bound themselves by deed, it was considered that they must have determined upon what they were about to do, before they made so solemn an engagement; and therefore it was not necessary to the validity of the instrument, that any consideration should appear on it. In all other cases the contract was invalid, unless the party making the promise was to obtain some advantage, or the party to whom it was made, was to suffer some inconvenience in consequence of the one making, or the other accepting such promise.[13]

117 In construing a deed, the principles concerning the construction of contracts apply.[14] The object of the Court is to discover and give effect to the intention of the parties.[15] The relevant intention is determined by asking what a reasonable person in the position of the parties would have understood the terms to mean.[16] In the context of business agreements, the Court of Appeal has summarised the applicable principles as follows:

(a) The terms are construed objectively, and the subjective intentions of the parties are irrelevant.

(b) The objective approach requires reference to the text and its ordinary meaning, together with:

(i) the context, being the entire text of the contract including matters referred to in the text; and

(ii) the purpose.

These matters will ordinarily be identified by reference to the contract alone, but evidence of mutually known objective background circumstances relevant to the purpose is admissible 'no matter how clear the "ordinary meaning" of the words'. Identification of purpose may allow admission of evidence of the genesis of the transaction, the background, the context and the market in which the parties are operating.

(c) ...

(d) If, after completion of this process, the language used in the contract 'is ambiguous or susceptible of more than one meaning', then evidence of surrounding circumstances external to the contract is admissible to assist with interpretation of the language in question.

(e) However, 'evidence of the parties' statements and actions reflecting their actual intentions and expectations' is inadmissible. Although evidence of prior negotiations is admissible to establish objective background facts known to both parties and the subject matter of the contract, evidence of negotiations reflective of actual intentions and expectations is not receivable.

(f) Post-contractual conduct is inadmissible to construe the terms of the contract. However, the parties' subsequent communications may be relevant to determine whether the parties intended to enter into a binding contract.[17]

118 Although the current circumstances involve family arrangements, rather than a business context, the general principles remain applicable.[18]

119 Seddon notes that terms may be implied in a deed, but just as in contract cases, there is a heavy onus on the party arguing for the implied term.[19] In BP Refinery v Hastings ('BP Refinery'), in the context of a commercial agreement, it was identified that it is possible to imply a term, other than those implied at law, where the term:

(a) is reasonable and equitable;

(b) is necessary to give business efficacy to the deed, so that a term will not be implied if the deed is effective without it;

(c) is so obvious that it goes without saying;

(d) is capable of clear expression; and

(e) must not contradict any express terms of the contract.[20]

120 While the deed is not a 'commercial contract', it represents an agreement that Anthony, the deceased and the plaintiff entered into in written form, and on its face it appears complete. As such, the approach remains applicable.[21]

121 The task of the Court is to identify the objective intention of the parties to the deed, in light of the deed's text, context and purpose. As such, evidence of the subjective intention of the parties is not relevant.

122 The recitals of the deed provide that Anthony was residing at Gipps Street; that Gipps Street was owned by the deceased; and that the deceased was Anthony's biological father.[22] No reference is made to the plaintiff.

123 Under what is headed the 'Operative Part' of the deed, cl 1 begins with the subheading 'Transfer of Monies'. It then sets out, inter alia, that: the deceased shall 'expressly and irrevocably gift' an 'amount of $300,000 ([p]ayment)' by Friday 28 July; that the plaintiff must provide a written receipt to the deceased; that Anthony, upon notification of 'receipt of [p]ayment' by the plaintiff, must do all acts and things necessary to vacate Gipps Street by Friday 28 July. Additionally, it sets out that: if 'the [p]ayment' was not made by the deceased by 26 July 2017 Anthony could live at Gipps Street indefinitely; that the plaintiff must return the $300,000 if Anthony did not vacate the property by 31 July 2017; and that the deceased and Anthony 'agree that the [p]ayment is an irrevocable gift to [the plaintiff] for use at his discretion'.

124 It is apparent that the handwritten amendments to the deed created a degree of inconsistency between the clauses. That is, without the amendments, the payment was to occur by 26 July 2017 and Anthony was afforded five days to vacate. The amendments to cl 1(a) and (c) shifted the date by which payment had to occur to 28 July 2017 and brought the date of vacation forward to the same day. However, cl 1(d) provided for Anthony to indefinitely reside if payment was not received by 26 July 2017, and cl 1(e) provided for the plaintiff to return the funds paid if Anthony did not vacate by the 31 July 2017.

125 According to the affidavit evidence of John, the amendment was at the request of the deceased, who wished to 'get Anthony out of the property sooner rather than later'.

126 A further inconsistency perhaps arises by way of the use of 'irrevocable gift',[23] in circumstances where the 'gift' was to be repaid in the event that Anthony did not vacate the property.

127 The background circumstances known to all of the parties included that:

(a) the plaintiff had provided emotional and financial support to both Anthony and John in their youth, in part due to such support not being directly provided by the deceased;

(b) Anthony and the plaintiff were both under the impression that they were financially owed by the deceased. This impression was related to the ownership of Gipps Street;

(c) the plaintiff and deceased had a significant falling out in January 2017, purportedly relating to what the plaintiff understood was his interest in Gipps Street;

(d) in the Facebook messages Anthony referred to obtaining funds from the deceased as protecting 'our money' and 'our future';

(e) in the Facebook messages Anthony and the plaintiff appeared on good terms, with the plaintiff offering to assist Anthony and forwarding a job opportunity to him;

(f) Anthony had demanded payment of funds in order for him to vacate Gipps Street. The Court also infers that he was damaging property and this formed at least part of the reason the deceased wanted him to leave the property;

(g) the VCAT proceeding had not resulted in Anthony vacating Gipps Street;

(h) Anthony had attempted suicide in the period after the VCAT proceeding;

(i) the plaintiff and deceased, 'made peace' after their disagreement in January. This involved the deceased offering to give the plaintiff $300,000; and

(j) the deceased transferred Baker Street on 30 May 2017 for consideration of $791,000.

128 Upon its terms, the deed resolves two overlapping issues that were contentious between the parties. First, it expressly provides for a gift to the plaintiff that had been the subject of dispute; and second, it addresses Anthony's occupation of Gipps Street. The obligation of Anthony to vacate Gipps Street only arose once he received the written receipt of payment from the plaintiff. In light of the deed's express terms and the background circumstances, the deed's chief purpose was resolving the conflict between the parties that had existed in the six months prior to its execution, such that the plaintiff received a gift of $300,000, but that the gift was tied to Anthony vacating Gipps Street. The deceased was to transfer the plaintiff $300,000, upon which, Anthony was to vacate Gipps Street. If no payment was received, Anthony was able to live at Gipps Street indefinitely.

129 The plaintiff submits both that use of the word 'gift' was erroneous, and that a term should be implied to the effect that he was obliged to use reasonable endeavours to try to cause Anthony to vacate Gipps Street.

130 In relation to use of the word 'gift', the plaintiff contends that it was the closest equivalent in English when he was translating the deceased's instructions from Vietnamese. In effect, he asserts that in a Vietnamese familial context, the word 'gift' should be construed both as 'to pay' and as importing a condition or contractual obligation on the recipient of the payment.

131 Placing to one side the possibility that the plaintiff's evidence regarding construction of 'gift' concerns his subjective intention rather than evidence of surrounding circumstances,[24] two points are noted. First, construing 'gift' as 'to pay' appears consistent with the short title given to the transfer of funds set out in cl 1(a) of the deed, namely ('payment'). However, the phrase 'expressly and irrevocably' is one that perhaps sits more easily with 'gift' rather than 'to pay', and the following circumstances are of significance:

(a) on the plaintiff's case the deceased was skilled in transacting in English;

(b) the plaintiff is a lawyer;

(c) the deceased had expressed a desire in March 2017 to thank the plaintiff for the assistance that he had provided to John;

(d) the plaintiff gave evidence that the Vietnamese word to which his father referred was a blend of payment and gift;

(e) the plaintiff stated that he researched the phrase 'conditional gift', in addition to 'conditional payment'; and

(f) the express terms of the deed provide for the gift to be paid, but to be returned if Anthony fails to vacate. In this sense it can broadly be described as conditional.

132 In such circumstances, the Court does not accept that the evidence establishes that 'gift' should be construed as 'to pay'. Such an approach is consistent with the purpose of the deed being to resolve the conflict between the parties concerning both the deceased's past promises of gifts and Anthony's occupation of Gipps Street.

133 Second, while it is apparent from the express terms of the deed that the gift was tied to Anthony vacating Gipps Street, the deed does not expressly impose any obligations upon the plaintiff, save that he was to provide the receipt of funds to the deceased and Anthony, and return the $300,000 if Anthony did not vacate.

134 The plaintiff argues that a term should be implied that he was to use reasonable endeavours to try to cause Anthony to vacate Gipps Street, as it is 'so obvious that it goes without saying', relying upon comments of Mason J in Codelfa.[25] There, his Honour quoted MacKinnon LJ's statement in Shirlaw v Southern Foundries that '[p]rima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying'.[26] Mason J also said that the conditions necessary to ground the implication were those summarised by the majority in BP Refinery.[27]

135 The Court does not accept that it is 'so obvious that it goes without saying' that the term submitted should be implied. The express terms of the deed are somewhat unusual in providing for a gift to one party that is tied to the actions of another. However, to imply a term that the plaintiff was to use reasonable endeavours to try to cause Anthony to vacate Gipps Street is not obvious, particularly as it is inconsistent with use of the term 'irrevocable gift' in cl 1(a) and cl 1(f). Clause (1)(e) also contemplates the return of the entire gift in the event that Anthony did not vacate, which is at odds with the funds being tied to reasonable endeavours of the plaintiff.

136 While the plaintiff has given evidence regarding the genesis of the deed, that the deceased stated he would pay the plaintiff $300,000 if he 'helped' move Anthony out, a number of points can be made in this regard:

(a) the only evidence that the deceased said that he would pay the $300,000 if the plaintiff helped resolve things with Anthony is that of the plaintiff. As discussed above, the plaintiff's evidence is to be approached with caution;

(b) in his evidence, the plaintiff also refers to the deceased wanting: the payment of $300,000 'tied to' Anthony vacating; the plaintiff to help him to get Anthony to vacate; and, the deceased wanting a document to use against Anthony; and

(c) John's evidence is that the deceased was to pay the plaintiff 'in order to get Anthony out of Gipps Street' and as a thanks to the plaintiff.[28]

137 On balance, although the Court accepts that the deceased sought the plaintiff's assistance in broadly helping to draft the deed and tying the gift to Anthony vacating Gipps Street, the submission that the genesis of the deed involved the deceased agreeing to pay the plaintiff to procure Anthony's exit from Gipps Street is rejected.

138 Overall, it cannot be said that it is 'so obvious that it goes without saying' that a term setting out an obligation on the plaintiff to use reasonable endeavours to try to cause Anthony to move out of Gipps Street should be implied. That is, had reasonable individuals in the respective positions of the deceased and Anthony turned their mind to it, it cannot be presumed that they would have adopted the term,[29] formalising the plaintiff's assistance to Anthony and changing the character of what, on the express terms of the deed, was intended by the parties to be a gift with the apparent aim of resolving conflict within the family.

139 The defendant's submission concerning the purported term being unnecessary to give efficacy to the deed is also accepted. The term proposed by the plaintiff is not necessary to avoid an unworkable situation.[30] The deed is effective in that it was possible for the deceased to gift the sum to the plaintiff, and in light of such gift, Anthony had to vacate Gipps Street. Alternatively, if the gift was not paid, Anthony was able to remain at Gipps Street indefinitely.

140 In the Court's view, the plaintiff has not established that the term contended for should be implied.

Does the deed exhaustively provide for what was to happen in the event that the deceased did not transfer the $300,000?

141 In opening submissions the defendant pressed an alternative argument that the deed expressly provides for what was to happen in the event of non-payment, and that this did not include the plaintiff suing to enforce payment. Rather, Anthony was able to remain at Gipps Street indefinitely. It was asserted that the parties turned their minds to the consequences of a non-payment and expressly provided that in such circumstances Anthony could continue to reside at Gipps Street.

142 In response, the plaintiff denies that the deed provides an exhaustive code of the parties' rights.[31] Rather, it provides for one remedy in relation to Anthony, and there are no 'clear words' excluding the plaintiff's rights. According to the plaintiff, it is apparent that the payment to the plaintiff was conditional on the plaintiff achieving the outcome of Anthony vacating Gipps Street. He is able to bring proceedings for the enforcement of the deed and/or breach of contract.

143 A common law presumption exists that a contracting party does not intend to abandon remedies for breach of a contract arising by operation of law, and that clear words are required to rebut the presumption.[32] As such, an express provision for termination for breach in certain circumstances, for example, may augment rather than 'restrict or remove the rights at common law which a party otherwise would have had on breach'.[33]

144 The defendant does not appear to have pursued this argument to the same degree in closing submissions. However, for completeness the following points are noted.

145 In the Court's view, the content of cl 1(d) and cl 1(e), weigh in favour of the view that the plaintiff's common law right to expectation damages is excluded. Clause 1(d) provides that if the gift of $300,000 is not received by the plaintiff, Anthony may reside at Gipps Street indefinitely. If it were to be read with the right to damages as implied at law, based upon the same event of non-payment by the deceased, the plaintiff could potentially seek expectation damages of $300,000, at the same time Anthony resided indefinitely at Gipps Street. This would be inconsistent with both the apparent intent of cl 1(d) and 1(e), which preclude the co-existence of the plaintiff keeping the funds and Anthony's continued residence at Gipps Street, as well as the overall purpose of the deed: using the gift to resolve the conflict in the family and address Anthony's occupation of Gipps Street.

146 However, the Court accepts that such a construction does not amount to 'clear words' as required by the authorities. As such, the deed does not exclude the plaintiff's common law remedies for breach.[34] On this point though, the Court notes as follows:

(a) the plaintiff has not made submissions as to how damages should be assessed, either with or without the implication of the asserted term; and

(b) insofar as the plaintiff relies upon Anthony vacating Gipps Street in fact, it is not immediately apparent that this was in performance of the deed. Upon proper construction of the deed and in light of the surrounding circumstances, particularly the deceased's history of unmet promises, it appears that the sequence of obligations expressed in the deed is significant. That is, the gift was to occur prior to Anthony vacating. If the gift was not transferred, the obligation upon the plaintiff to provide a receipt fell away, as did Anthony's obligation to vacate. As matters eventuated, Anthony vacated Gipps Street prior to the last day upon which the deceased had to transfer the gift.

147 On the whole, whether the plaintiff can pursue common law damages is an issue that appears to have received limited attention of the parties.

Can the plaintiff seek specific performance of cl 1(a) of the deed?

148 The defendant submits that the deed, according to its terms, provides for a gift at a later date. The gift is said to be incomplete on the facts, making it incapable of specific performance. In this regard reliance is placed upon Corin v Patton[35] and Milroy v Lord.[36]

149 Additionally, even if it could be said that the deed provided for a bargain requiring the plaintiff to use reasonable endeavours, the plaintiff's evidence that he bought Anthony meals and gave him spending money to build trust should be rejected. The Facebook messages show that he was already providing such support.

150 The plaintiff denies that the deed expresses a gift, rather he argues that he provided consideration.[37] As consideration can be anything stipulated by the promisor,[38] the plaintiff's consideration was asserted to be both:

(a) that he would cause Anthony to vacate Gipps Street, a term which is to be implied into the deed; and

(b) that he did in fact procure Anthony's exit from Gipps Street.

As to the first point, he cites a number of cases in support of the proposition that any labels given by parties to an agreement are not determinative.[39]

151 Moreover, it is submitted that even if the Court fails to find that the plaintiff provided consideration, the deceased is said to have received consideration under the deed when Anthony vacated Gipps Street. Each party to the deed had dependant obligations and Anthony provided the consideration in moving out of Gipps Street. That is, there was a binding 'casual connexion, reason or inducement',[40] such that on any view consideration was provided to the deceased, and he was bound at law.[41] At the same time, however, the plaintiff argues that he was the 'sole promisee' in respect of the deceased's payment obligation.

152 The presence of consideration can turn what otherwise may be a gratuitous promise, or gift, into a binding contractual promise. While 'consideration' can have a number of meanings depending upon the context in which it is adopted,[42] in this sense it may be defined as:

some act or forbearance involving legal detriment to the promisee, or the promise of such an act or forbearance, furnished by the promisee as the agreed price of the promise.[43]

Further, it involves the notion of bargain. That is, consideration may be viewed as the agreed 'price paid' for the promisor's promise.[44]

153 At times, particularly in the context of family relationships, determining whether a promise was gratuitous, or was supported by consideration, may be difficult to determine. In Shadwell v Shadwell,[45] for example, the testator wrote to his nephew stating that he was glad to hear of his nephew's intended marriage and that, as he had promised to assist, he would pay the nephew £150 annually. Upon the death of the testator the nephew sought to enforce the payment. Erle CJ (Keating J agreeing) determined that good consideration was provided as, inter alia, on one view the marriage could be considered a pecuniary loss at the uncle's request. In dissent, Byles J viewed the uncle's letter as one of kindness only, creating no legal obligation.[46]

154 Classically, two fundamental principles have been recognised in relation to the enforcement of promises. First, unless the promise is under seal, consideration must move from the promisee; and second, that only a party can sue on a contract.[47] Although the utility of maintaining a distinction between the two concepts has been queried,[48] in Trident General Insurance Co v McNiece Bros Pty Ltd ('Trident v McNiece') a majority of the High Court recognised the principles as separate.[49]

155 Furmston provides the following example of an application of the first principle: 'A, B and C may all be signatories to an agreement whereby C promises A and B to pay A $100 if B will carry work desired by C'.[50] Historically, although perhaps a party to the agreement, A would be unable to sue to enforce C's promise as she failed to provide consideration. However, in Coulls v Bagot's Executor and Trustee Co Ltd ('Coulls v Bagot's'), the High Court recognised that an individual in the position of A was able to enforce C's promise, if A and B could be considered joint promisees.[51] In effect, A and B are regarded as a single unit, whereby consideration moving from one, will also amount to consideration moving from the other. In attempting to rationalise the approach, Coote has suggested that in reality, the joint promisee had impliedly also accepted an obligation toward the promisor.[52]

156 Determining whether promisees are joint has been described as often involving a 'difficult question of construction',[53] aiming to give effect to the parties' expressed intention.[54] Procedurally, where a claim is brought by one promisee, all living joint promisees must be joined as parties.[55]

157 Coulls v Bagot's was referred to by Mason CJ and Wilson J in Trident v McNiece. In that case their Honours were prepared to find that a company's contractor could claim upon a contract of insurance between the insurer and the company, in circumstances where the contract defined the 'insured' as including the company's contractors. Such a conclusion, restricted to a policy of insurance, was based upon 'the injustice that would flow from the failure to give effect to the expressed intention of the person who takes out the insurance', as well as 'the common intention of the parties and the circumstance that others, aware of the existence of the policy [would] order their affairs accordingly'.[56] Toohey J similarly found that the contractor could claim, as it gave effect to the presumed intention of the insurer at the time that it issued the insurance policy,[57] while Gaudron J found in favour of the contractor based upon unjust enrichment.[58]

158 Turning to promises under seal, the solemnity of a deed means that the covenants that it contains are binding in the absence of consideration.[59] As such, a promisee may rely upon common law rights in relation to a gratuitous promise in a deed.[60] Where the deed is dispositive, that is, it immediately achieves a certain legal result such as the creation of an interest, it may be relied upon as evidence of that interest.[61] What Everett has termed 'contractual deeds', however, may raise issues concerning the particular remedy pursued. There, parties are bound to future action. Where a promise is breached, the promisee may still seek to pursue common law remedies.[62] For example, in obiter, Edelman J has quoted Treitel on Contract as stating that '[t]he common law did not specifically enforce contractual obligations except those to pay money',[63] before reviewing the history of an action for debt and concluding that '[t]he action to obtain "specific performance" of the obligation to pay money at common law, when embodied in a deed, does not require consideration'.[64] His comments, however, appear limited to actions for debt. As to pursuing damages, in the context of a promise to gift, a query may arise concerning the measure of the loss sustained.[65]

159 Insofar as an attempt may be made to pursue the equitable remedy of specific performance, of significance is the maxim 'equity will not assist a volunteer'.[66] A person is not a volunteer where they have provided valuable consideration.[67] 'Valuable consideration', broadly has the meaning given to it in the common law sense, although some distinctions exist.[68] Where equity's auxiliary jurisdiction is being relied upon,[69] 'specific performance will not be ordered of a deed which is unsupported by consideration'.[70] As stated by Knight Bruce LJ in Kekewich v Manning:

Upon one hand, it is, on legal and equitable principles ... clear that a person sui juris, acting freely and fairly with sufficient knowledge, ought to have and has it in his power to make, in a binding and effectual manner, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, and however so circumstanced, so, on the other, it is clear generally, if not universally, that a gratuitously expressed intention, a promise merely voluntary, or to use a familiar phrase, nudum pactum, does not (the matter resting there) bind legally or equitably. I have been speaking of transactions without any sealed writing. But though it is true that in cases where such an intention, such a promise, is expressed in a deed, it may bind generally at law as a covenant by reason of the light in which the particular kind of instrument called a deed is regarded at law, yet in equity, where at least the covenantor is living, or where specific performance of such a covenant is sought, it stands scarcely, or not at all, on a better footing than if it were contained in an instrument unsealed.[71]

160 A related maxim is that 'equity will not perfect an imperfect gift'.[72] For such a settlement to be effectual, the donor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to make gift binding.[73] The question is whether what the donor has done is sufficient to enable legal transfer of the property, without further action on her or his part.[74]

161 In Corin v Patton, Mason CJ and McHugh J noted that equitable maxims are broad themes underlying equitable concepts, rather than forming specific rules or principles of law. Specifically regarding the maxim that equity will not assist a volunteer it was stated:

Its precise scope is necessarily ill-defined and somewhat uncertain. It is subject to certain clearly established doctrines such as the rule in Strong v Bird [1874] UKLawRpEq 112; (1874) LR 18 Eq 315 and the doctrine of equitable estoppel, where an equity arises in favour of an intended donee from the conduct of the donor after the making of the voluntary promise by the donor.[75]

162 In relation to how equity's approach to volunteers sits with the maxim as to imperfect gifts, their Honours stated:

What is of importance is that this and the related maxim that equity will not perfect an imperfect gift are primarily associated with the rule that a voluntary covenant is not enforceable in equity, a rule which itself has become the subject of critical scrutiny in some of its applications ... Thus, a volunteer who is the object of an intended trust will only succeed if the trust has been completely constituted. This means, so it is said, that the trust must be constituted by a present declaration of trust or by transfer by the settlor of the legal title to the intended trustee. And that brings us back to the statement of principle by Turner LJ in Milroy v Lord.

But there is a distinction between the enforcement of a voluntary covenant to create a trust and the enforcement of a transfer by way of intended gift where the donor has done all that was within his power to vest title to the property in trustees for the donee or in the donee. In the first case, equity will not compel specific performance of the voluntary covenants, there being no completely constituted trust; in the second case, as the transaction is complete as far as the donor is concerned, no question of withholding specific performance can arise and equity will hold the donor to the completed transaction on the footing that title has been divested.[76]

163 The defendant relies upon Milroy v Lord and Corin v Patton. Both of those cases involved instruments purporting to immediately assign an interest in property. At issue was whether, the legal assignment having failed, there was effective transfer of the property at equity. In this regard it became necessary to consider at which point the donor's voluntary transfer became binding. On this point Mason CJ and McHugh J in Corin v Patton approved the approach of Griffith CJ in Anning v Anning, that if an intending donor of property has done everything which it is necessary for her or him to have done to effect a transfer of legal title, then equity will recognise the gift.

164 The deed in the current circumstances is distinct from the dispositive deeds at issue in Milroy v Lord and Corin v Patton. That is, the deceased did not attempt to immediately gift the sum of $300,000. The language of cl 1(a) is that the deceased 'shall' gift the sum before a specified date. As such, to speak of a gift that failed, or whether the deceased did everything to give effect to the transfer of funds, appears inapposite. Rather, the issue is whether the promise to gift in the deed can be specifically enforced.

165 As provided for in recital D of the deed, Anthony, the plaintiff and deceased were agreeing to its clauses. Although the clauses are not in the language of promises, upon a natural reading and as in Coulls v Bagot's, in cl 1(a) of the deed the deceased promised that he shall expressly and irrevocably gift the plaintiff an amount of $300,000 by 28 July 2017. In order to seek specific performance of the clause at equity, it must be supported by consideration. The plaintiff relies upon two arguments in this regard: first, that he provided consideration in promising to assist Anthony; and second, that even if he did not provide consideration, consideration flowed from Anthony.[77]

166 As to the first point, the Court rejects the proposition that the plaintiff himself provided consideration either by promising to assist Anthony or by taking steps in this regard. Insofar as any promise to assist is relied upon, for the reasons set out above, the Court does not accept that there is an implied term to that effect. In relation to the assertion that the label 'gift' as used in the deed is not determinative, the plaintiff relies upon Re Porter[78] and Massey v Crown Life Insurance.[79] However, those cases concern identifying the type of relationship between parties for the purposes of industrial relations law, specifically, whether an employee-employer relationship existed. As such, they are of limited assistance in identifying consideration in relation to a promise under seal.

167 While the steps taken by the plaintiff in assisting Anthony may be considered a detriment, the conclusion that such detriment was the 'agreed price' of the deceased's promise is not established on the evidence. Even if the plaintiff's evidence that the deceased stated that he would pay the plaintiff $300,000 if he helped move Anthony out is accepted, this is to be viewed against:

(b) the purpose of the deed in resolving two overlapping issues concerning the longstanding promises of gifts and the occupancy of Gipps Street;

(c) the evidence of John that the deceased stated he was paying the plaintiff $300,000 'in order' to get Anthony out of Gipps Street; and

(d) the demands of Anthony that he be paid before vacating Gipps Street, alongside the Facebook messages indicating that he believed the funds were owed to both himself and the plaintiff to secure their future.

168 In circumstances where Anthony, the deceased and the plaintiff have reduced their agreement to writing, involving executory consideration, it also appears at odds to recognise consideration in the form of the plaintiff's actions. Ultimately, while the Court accepts that to a degree, the plaintiff provided more assistance and support to Anthony in the period after the deed was signed, such as paying his motor vehicle tolls, it has not been established that such detriment was part of an 'agreed price' between the plaintiff and deceased for the payment of $300,000.

169 Insofar as the plaintiff relies upon the consideration provided by Anthony, Anthony's consideration was his promise, in cl 1(c), to vacate Gipps Street upon notification of the receipt of payment from the plaintiff. In order for the plaintiff to rely on this consideration, it is necessary to establish that he and Anthony were joint promisees. That is, the intention as gleaned from the proper construction of the deed, is that they were akin to a single entity relative to the promise. Of note, somewhat at odds with this approach, the plaintiff submitted that the plaintiff was the sole promisee in respect of the deceased's obligation in cl 1(a).

170 Determining whether, upon the construction of the deed, the plaintiff and Anthony were joint promisees is not without difficulty. On the one hand, it can be accepted that the promise of the deceased was a promise to both the plaintiff and the deceased. In this sense they may perhaps be described as 'co-promisees'. Further, their interests in the promise were linked. The plaintiff received the $300,000 and Anthony was to vacate, if he failed to vacate, the $300,000 was to be returned. Clause (1)(h) also states: 'obligations under this deed affecting more than one party bind them jointly and each of them severally'. On one reading, it may be that when applied to Anthony's promise to vacate, which 'affected' the plaintiff's retention of the $300,000, this clause would mean that the two were jointly obligated.

(a) the promise is to pay the plaintiff only. The circumstances are distinct from Coulls v Bagot's, in which the promise of the company was to pay both the husband and wife;

(b) the deed expressly states that it is between the deceased 'AND' Anthony 'AND' the plaintiff, rather than the deceased AND Anthony and the plaintiff as some sort of unit;

(c) although the gift was tied to Anthony vacating, the phrase 'irrevocably gift' in cl 1(a), the agreement of the deceased and Anthony in cl 1(f) that the $300,000 was an irrevocable gift to the plaintiff to use at his discretion, and the content of cl 1(g), that the deceased and Anthony agree that the plaintiff 'shall not be liable for any costs or damages arising from non-performance of obligations by the Father and or the Son' under the deed, suggest that the intention of the parties to the deed was to keep the gift as distinct as possible from the obligations of Anthony; and

(d) clause 1(h) may be given a narrow construction, such that 'affecting' is limited to the obligation in question. Upon such a construction, the obligation of Anthony in cl 1(c) to vacate would not extend to the plaintiff jointly, whereas, if cl 1(g) was construed as imposing an obligation on the deceased and Anthony, it would bind them jointly and severally.

172 Overall, the above points weigh in favour of a finding that the plaintiff and Anthony were not joint promisees. This is consistent with the two fold purpose of the deed, albeit those purposes were overlapping: to make the gift to the plaintiff and to procure, by way of the gift, Anthony's exit from Gipps Street. Anthony and the plaintiff could not be regarded as a single unit in receiving the promise.

173 The plaintiff also relies upon comments of Windeyer J in Brooks v Burns Philip Trustee Co Ltd.[80] However those comments concerned whether covenants could be considered independent or dependent for the purposes of severing one, not the issue of 'valuable consideration'. Additionally, the circumstances are not apt to apply the reasoning from Trident v McNiece, such that the plaintiff can enforce cl 1(a) as a contractual agreement between the deceased and Anthony. In particular, the reasoning of Mason CJ and Wilson J was limited to insurance policies.

174 If, as contended by the plaintiff (but which the Court doubts), the consideration provided by Anthony was not his promise in cl 1(c) but his actions in vacating Gipps Street, the Court refers to the point made earlier in these reasons that it is not immediately apparent that Anthony vacating Gipps Street was in performance of his obligations under the deed. In any event, such consideration would not be viewed as moving from the plaintiff.

175 As it has not been established that valuable consideration flowed from the plaintiff, either directly or as a joint promisee, he is considered a volunteer at equity. Consequently, he cannot enforce cl 1(a) based upon the equitable remedy of specific performance. The plaintiff's common law rights, however, remain.

176 In the event that the Court's finding on the issue of joint promisee is incorrect, it is necessary to join Anthony as a party to the proceeding.

Is the defendant estopped from denying that the deed is enforceable?

177 The plaintiff pleads that deceased represented to him or otherwise induced him to believe that the parties had entered into the deed as a binding enforceable agreement. Reference is made to evidence that the deceased: directed key terms of the deed; executed the deed; and, received the benefit of the deed, in that Anthony vacated Gipps Street. Additionally, the deed specifically provides that it is binding upon executors.

178 On the basis of promissory estoppel, he submits that in reliance upon the deceased's promises to pay him $300,000, he spent significant time, effort and financial expense to gain Anthony's trust and convince him to move out of Gipps Street. This is said to have been particularly taxing, as he was under significant personal and professional pressures at the time, and it would be unjust to deny the payment that he was promised.

179 The defendant did not make submissions specific to the plaintiff's claim of estoppel. However, it is apparent that the facts upon which the plaintiff relies to establish detriment are disputed.

180 The principles of promissory estoppel were discussed in FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd.[81] There, it was noted that the applicable principles were those encapsulated by Brennan J in Waltons Stores (Interstate) Ltd v Maher ('Waltons Stores'),[82] such that in order to establish an equitable estoppel based upon a representation, promise or assurance, it is necessary to prove that:

(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected 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.[83]

181 The Court of Appeal also noted authority supporting aspects of a more traditional formulation of promissory estoppel, limiting application of the principles to circumstances where it is a restraint on enforcement of the promisor's contractual rights. However, it found it unnecessary to resolve the issue.

182 The purpose of estoppel is not to 'serve as a substitute for consideration ... to make promises or representations binding in the same way as contracts'.[84] As discussed by Brennan J:

The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon.

If this object is kept steadily in mind, the concern that a general application of the principle of equitable estoppel would make non-contractual promises enforceable as contractual promises can be allayed.[85]

183 Similar comments were made by McPherson J in Riches v Hogben, as quoted by the joint judgment in Giumelli v Giumelli ('Giumelli'):

The equitable principle has no application where the transaction remains wholly executory on the plaintiff's part. It is not the existence of the unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives to rise.[86]

In Giumelli, the joint judgment also discussed the discretionary basis of equitable remedies, and the conduct of the representor, as factors distinguishing contractual promises from those enforced upon the basis of estoppel.[87]

184 Of relevance in establishing inducement are any representations or promises made by the party against whom the equity is being raised. A representation relied upon must be sufficiently certain to found the estoppel,[88] although of significance in this regard is whether the plaintiff's adoption of the assumption and reliance in acting upon it was reasonable.[89] In Varma v Varma, Ward J noted that the question of reasonableness may turn on whether the promise was understood to be revocable.[90]

185 In Sidhu v Van Dyke ('Sidhu'),[91] the majority determined that reliance was a fact to be found. Although Sidhu was a case concerning proprietary estoppel, when discussing equitable estoppel more broadly, French CJ, Kiefel, Bell and Keane JJ stated that reliance:

Is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract.[92]

186 On the element of knowledge, in Waltons Stores Brennan J referred to a person who 'knows or intends that the other person should conduct his affairs' on the assumption. In such a case, the person has the option to deny the correctness of the assumption or to act so that the other person avoids detriment. However, the possibility that constructive knowledge is enough has been raised by Nettle JA (as his Honour was at the time).[93]

187 The detriment is that which 'would flow from the change of position if the assumption were deserted that that led to it'.[94] It should not be approached in a narrow or technical sense, and it is not necessarily financial.[95] The detriment, however, must be something substantial,[96] that is, a 'material disadvantage' flowing from an inducement to act.[97]

188 As to the appropriate remedy, in Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) ('Bullhead'), the Court of Appeal appeared to accept that where the elements of promissory estoppel were established, the approach is that adopted in Walsh v Walsh,[98] which is consistent with the joint judgment in Giumelli. As stated by Kyrou, McLeish and Hargrave JJA:

In the course of the joint judgment, the Court referred with approval to the statement by Deane J in Commonwealth v Verwayen that:

Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.

To similar effect are the statements in Delaforce. For example, Allsop P described the weighing exercise as requiring a court of equity to:

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. ...

Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration.[99]

The relevant passage from Walsh v Walsh provides:

There is no governing principle that requires that the relief granted be that which is the minimum necessary to do justice ... To the extent that there is a prima facie entitlement to relief on the basis that the adopted expectation is to be made good, that entitlement must be weighed against any injustice to the estopped party in doing so and the detriment suffered by the party who has acted upon the induced expectation. Consideration should also be given to whether the proposed relief has any adverse effects on the interests of third parties.[100]

189 Specifically in the context of imperfect gifts, it has been acknowledged that the conduct of the donor and reliance of the donee may provide the equity necessary to complete the gift.[101] The relevant conduct being that subsequent to the failed gift.

190 As pleaded, the plaintiff's estoppel case asserts that the defendant is estopped from denying that the deceased entered into a binding, concluded and enforceable agreement. Reliance is placed upon the deceased's actions in directing the drafting of the deed and executing it, as well as receiving the benefit of Anthony vacating Gipps Street.

191 The plaintiff's submissions refer to the defendant being estopped from denying liability to make the payment. Specifically, that in reliance upon his father's 'promises to pay him $300,000', including in the deed, the plaintiff suffered emotional, personal and financial detriment in convincing Anthony to move out of Gipps Street.

192 Approaching the case from the perspective of Brennan J's analysis in Waltons, it appears that the assumption adopted by the plaintiff was that he and the deceased had entered into a binding agreement that he would receive the $300,000.

193 On the element of inducement, the evidence discloses that the deceased made a number of representations. The Court accepts that in January 2017 the deceased promised to give the plaintiff Gipps Street in return for a payment by the plaintiff, which the plaintiff declined. The promise is consistent with the evidence of John that the deceased had made previous statements regarding his intention to gift properties to his sons, the plaintiff and to a degree, references to an argument between the deceased and plaintiff in the Facebook messages.

194 Regarding later representations the evidence is less clear. The plaintiff deposes to a single discussion that he had with the deceased after the failed VCAT proceeding, during which the deceased stated that he would pay the plaintiff $300,000, if the plaintiff helped him to move Anthony out of Gipps Street.

195 The pt IV affidavit, refers to two conversations, one in March, in which the deceased stated that he wanted to give the plaintiff $300,000 as a thanks for looking after John, and a later conversation, in which the deceased is said to have promised the plaintiff $300,000 if he helped move Anthony out of Gipps Street. The plaintiff's oral evidence accepted that both conversations in the pt IV affidavit were the same as the discussion deposed in this proceeding, yet at the same time conceded that the later conversation set out in the pt IV affidavit was referring to statements made in the earlier conversation. As such, it is difficult for the Court to accept that the representation occurred in the single conversation as the plaintiff has deposed in this proceeding. Rather, it appears that there were two representations: an initial one in which the $300,000 was to be paid as a thanks; and a second one in which the gift of $300,000 was to be paid in connection with Anthony vacating Gipps Street.

196 For the reasons earlier outlined,[102] while the Court accepts that in the second conversation the deceased tied the gift of $300,000 to Anthony vacating Gipps Street, and represented that he would make the gift if the plaintiff helped in this regard, the evidence does not support the conclusion that the deceased represented that he would pay the plaintiff in return for the plaintiff convincing Anthony to vacate Gipps Street.

197 In agreeing to and executing the deed, the Court accepts that the deceased induced the plaintiff to believe that the gift was to be binding and enforceable. However, the terms of the deed also contemplated that the gift had to be returned, should Anthony fail to vacate.

198 While the plaintiff deposed to the deceased stating sometime in July 2017, in the presence of John, that he 'wanted to do everything that he promised', no detail is provided in this regard, and John does not mention the conversation in his evidence. As such, the evidence has limited weight.

199 On the question of whether it was reasonable for the plaintiff to rely upon the representations, upon his own evidence, the deceased had repeatedly made promises which he did not keep. Consequently, to the extent that the plaintiff relies upon actions taken prior to entering into the deed, it was unreasonable to assume that the earlier representations were binding. Upon execution of the deed, reasonable reliance on the assumption that the gift was binding is to be viewed against the representation in the deed that the gift may have to be returned, in the event that Anthony failed to vacate. Within this limit, acting to encourage Anthony to vacate appears reasonable in the circumstances.

200 The question arises as to whether the deceased knew or intended that the plaintiff would act upon the assumption that the gift in the deed was binding. The evidence on this point is limited. The plaintiff's evidence that the deceased promised to pay him if he helped Anthony vacate has not been accepted. On one view, that the gift of $300,000 was tied to Anthony vacating, perhaps supports an inference that the deceased intended that the plaintiff would assist Anthony, or otherwise, that he should have known that the plaintiff would act. On another, however, it may be that the gift to the plaintiff of itself was seen by the deceased as incentive enough for Anthony to move, and there is no evidence that he was aware of the additional actions that the plaintiff was taking. Even if the former approach is adopted, however, the chief difficulty with the plaintiff's estoppel claim concerns his detriment.

201 As to the existence of detrimental reliance in fact, two issues arise. First, although the plaintiff deposes that he had a 'fractured relationship' with Anthony and that between 2010 and around March 2017 the two did not have many interactions, save for at Sunday gatherings, this is at odds with the Facebook messages. As the defendant contends, those messages reveal a degree of trust between the two, as well as the plaintiff offering Anthony assistance and advice.

202 Second, to establish the estoppel, the detriment is to be substantial. Here, as determined above, the period of reasonable reliance is from the date of the deed, 6 June 2017, to 17 July 2017 when Anthony vacated. While it is accepted that the plaintiff provided greater assistance to Anthony during this period, in the Court's view, the assistance provided was not a 'material disadvantage' or 'significant disadvantage' for the purposes of establishing an estoppel. There is no evidence that the payment of $1,000 or motor vehicle tolls was a significant imposition upon the plaintiff's finances,[103] and while it is possible for non-financial detriment to form the basis of an estoppel, the plaintiff's references to increased stress in the current circumstances appear distinct from the leading cases.[104]

203 Finally, even if the preceding findings as to the period of reasonable reliance and detriment are incorrect, the Court does not accept that the appropriate remedy is enforcement of the $300,000 gift. Adopting the approach discussed in Bullhead, had the plaintiff established the elements of promissory estoppel then prima facie he would have been entitled to relief on the basis that the adopted expectation be made good. That is, the gift of $300,000 was binding in circumstances where Anthony vacated Gipps Street. That entitlement, however, is to be weighed with the all of the circumstances of the case touching upon conscionability including the nature and character of detriment, how the detriment can be cured, its proportionality to the terms and character of the encouragement, and proportionality of the remedy to the detriment incurred.

204 In the current circumstances, the deceased made representations as to a $300,000 gift to the plaintiff that was tied to Anthony vacating Gipps Street. Beyond the discrete representations, there is no evidence that he further encouraged the plaintiff to act in assisting Anthony, or had actual knowledge that the plaintiff was doing so. Although he entered into the deed, its structure was prefaced upon the deceased making the gift prior to Anthony vacating Gipps Street. If the gift was not paid, Anthony was not required to vacate. The evidence is that Anthony vacated prior to the gift being paid, with Ms Nguyen suggesting that this was at Anthony's instigation.

205 After the deed had been executed, the evidence that the deceased continued to encourage an assumption by the plaintiff that the gift set out in the deed was binding is sparse. That is, the circumstances are distinct from those in which a court has been willing to perfect an imperfect gift.

206 The detriment upon which the plaintiff bases his claim is limited to that which he sustained in relying upon the deceased's representations. There is no evidence that he detrimentally changed his financial position based upon the expectation that the gift was binding. Rather, the evidence is that in March 2017 he told the deceased that he did not want the $300,000.

207 The plaintiff has broadly identified his reliance detriment. Reference has been made to payments of $1,000 and 'hundreds of dollars'. While he deposed to great strain on his work life-balance, the evidence is limited to excusing himself to take phone calls that may have lasted 30 minutes to two hours. As was stated by Nettle JA in Donis v Donis,[105] it is not necessary for there to be substantial correspondence between the expectation and detriment suffered. However, proportionality is relevant. Here, a remedy of $300,000 appears disproportionate to the detriment sustained. It is also a significant sum in circumstances where the encouragement provided by the deceased was chiefly limited to discrete representations, rather than ongoing conduct, and it is possible for the detriment to be cured by a lesser sum.

208 In the circumstances, regarding the issues that touch upon the deceased's conscionability and the overall justice of the case, it would be inequitably harsh if the defendant was ordered to pay $300,000.

209 The defendant contends that even if the deed recorded the deceased's agreement to pay the plaintiff $300,000 in consideration for the plaintiff persuading Anthony to leave Gipps Street, it was an unconscionable dealing. That is, that by preparing the deed and procuring its execution, the plaintiff took unconscientious advantage of the deceased.

210 He asserts that it was part of a plan between the plaintiff and Anthony to obtain as much money from the deceased as they could before he died. Although the plaintiff sought to distance himself from Anthony, deposing that he moved out of Gipps Street before Anthony moved in, he gave oral evidence that that was only a 'half-truth'.

211 The plaintiff and Anthony knew that the deceased: was unwell and looking to get his financial affairs in order; had a significant debt; and wanted Anthony to vacate Gipps Street and had applied to VCAT in this regard. The defendant contends that as such, they were in a position of strength in relation to the deceased, who 'by reason of his health and financial stress', was unable to make a judgment in his own best interest.[106]

212 Although the conduct of both Anthony and the plaintiff is referred to in the plaintiff's submissions, as framed, the defendant's case is that the plaintiff himself took unconscientious advantage of his position.

213 According to the plaintiff, the only relevant pleaded issues going to special disability are that the deceased was suffering from leukaemia and was very ill, and that the deceased was unable to work, was under financial pressure and had significant debt. It is contended that these do not establish the requisite special disability. Although the deceased was suffering from leukaemia, there is no evidence that it affected his ability to make a judgment as to his best interests. Rather: in January 2017 he executed his final will; in March 2017 he was engaged in VCAT proceedings; and in July 2017 he entered into an agreement with Anthony. Additionally, the deceased discovered the Facebook messages in January 2017 himself.

214 The plaintiff also denies that the deceased was under financial pressure, and contends that the defendant has provided no particulars to explain the allegation. Moreover, the defendant has not established that the plaintiff had knowledge of the claimed special disabilities at the time that the deed was executed.

215 Unconscionable conduct may be established where a 'stronger party' is attempting to enforce, or retain the benefit of, a dealing with a person under a special disability, in circumstances where 'it is not consistent with equity or good conscience' that she or he should do so.[107] In Thorne v Kennedy, the majority stated that a conclusion of unconscionable conduct requires:

the innocent party to be subject to a special disadvantage 'which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests'. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring 'victimisation', 'unconscientious conduct', or 'exploitation'. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.[108]

216 The abiding principle is ensuring that it is fair, just and reasonable for the stronger party to maintain the benefit of the impugned transaction.[109]

217 The Court of Appeal has described both the need for the disability or disadvantage to affect the ability of the party said to be suffering from it to make a judgment in her or his best interests, and the need for the disadvantage to be sufficiently evident to the other party, as threshold requirements.[110] Only after they have been established does consideration turn to whether or not the party acted unconscionably.[111] The application of such principles calls for:

A precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition.[112]

Was the deceased under a special disadvantage that seriously affected his ability to make a judgment as to his best interests?

218 The defendant founds his claim of special disability on the basis of the deceased's health issues, and associated financial pressure.

219 The Court accepts that in the context of the deceased's diagnosis, his health fluctuated in the months leading up to execution of the deed. He was admitted to hospital in January 2017, and the medical notes of 6 June 2017 appear to refer to an additional 'recent' hospital admission for an infection. However, it is apparent that the medical review on that day was as an outpatient, and no specific issues are raised concerning the deceased's cognition or immediate health concerns. Rather, a review was scheduled for four weeks' time.

220 Even if the evidence of the defendant's witnesses is accepted, that the deceased: had increased bruising and was fatigued; suffered weight-loss; and at times would collapse and have difficulty talking, such evidence is generalised and does not assist the Court specifically regarding 6 June 2017 or when key discussions took place leading up to that date. In contrast, John gave evidence that on 6 June 2017, the deceased was 'in fine condition'. The Court accepts that the morning the deed was executed, the deceased read it through and sought the hand-written amendments.

221 Further, as the plaintiff contends, the deceased undertook a number of actions in the months either side 6 June 2017, suggesting that he was capable of managing his affairs in this period despite his fluctuating health:

(a) making a statement to police in January 2017 and recovering the $400,000;

(b) executing his last will on 23 January 2017;

(c) appointing a power of attorney on 23 February 2017;

(d) commencing VCAT proceedings in March 2017;

(e) requesting an amendment to be made to the deed on 6 June 2017;

(f) executing a contract of settlement with Anthony on 14 July 2017.

222 Although the transfer of Baker Street dated 30 May 2017 was executed by the deceased's attorney, none of the other documentary evidence supports the defendant's submissions as to the significance of the deceased's health issues in June 2017. Rather, they demonstrate that the deceased was actively taking steps to protect his interests.

223 Lanna deposes to the deceased having difficulty reading English, however, the evidence is non-specific and was not relied upon in the defendant's submissions.

224 In relation to the submission that the deceased was under financial pressure, it is apparent that in light of his ongoing illness, he was seeking to arrange his financial affairs. He stopped working full time at the end of 2016. Liston Drive was sold in late 2016 and Baker Street, where the mechanic workshop was located, was sold sometime prior to May 2017 for consideration of $791,000.

225 The plaintiff's evidence, that in the relevant period the deceased was living in property owned by the Department of Housing, was not challenged by the defendant.

226 Bank records indicate that the deceased had a loan outstanding of around $1.1 million in May 2017, and at the same time, cash in an offset account of $180,133. It is apparent that significant transfers were made from the offset account to a business account, but only limited records from the business account are before the Court. Further, there is no evidence concerning Dinnell Street, which was owned by the deceased.

227 Given the lack of evidence regarding: the deceased's day to day finances; significant transactions from the deceased's offset account to the business account; and equity and income concerning Dinnell Street in 2017, the Court is unable to make any finding regarding the deceased's overall financial position at that time, let alone whether he was under financial stress.

228 The deceased was in a difficult position regarding Gipps Street. It can be inferred that Anthony had damaged the property, he was demanding a significant payment in order to vacate, and he had not vacated in response to the commencement of the VCAT proceeding. Further, he had attempted suicide in the period prior to execution of the deed.

229 The evidence is that the deceased approached the plaintiff in relation to Gipps Street. In this regard, he was in a somewhat weaker position. According to the plaintiff, he considered that the lawyers who had managed the VCAT proceeding on his behalf had failed him, and he wanted a document to cause Anthony to vacate Gipps Street. The plaintiff was legally trained and the deceased trusted him to draft the document. Additionally, the Facebook messages demonstrate that in January at least, Anthony and the plaintiff were on good terms, were concerned for each other's welfare and that Anthony sought the plaintiff's advice.

230 The deed itself is unfavourable to the deceased. Even if, in contrast to the findings above, a term is to be implied that the plaintiff was to use reasonable endeavours to encourage Anthony to vacate Gipps Street, such endeavours were purportedly in exchange for a $300,000 payment. While the deceased was afforded a degree of latitude in that cl 1(d) contemplated that the funds may not be paid, in that event, Anthony was able to reside at Gipps Street indefinitely. The structure of the deed, however, must be viewed in light of the surrounding circumstances, particularly the longstanding conflict concerning the deceased's earlier promises in relation to the property portfolio. To a degree, the resolution of this conflict may have been of benefit to the deceased, particularly in the context of his fluctuating health and apology to the plaintiff in March.

231 Overall, the defendant has not established that due to his health concerns and financial position the deceased was under a special disability or disadvantage that seriously affected his ability to make a judgment in his best interests. The deceased was in a difficult position, particularly as Anthony was occupying Gipps Street, and he placed trust in the plaintiff in drafting the deed, but in the Court's view, his position was not so compromised that he was unable to act in his best interests.

232 Given the reliance that the defendant placed upon them, the Court will briefly consider the Facebook messages. The messages suggest that in mid-January 2017, Anthony and the plaintiff showed little care for the deceased's health. They also indicate:

(a) that at that time the two were contemplating the deceased's assets;

(b) Anthony in particular appeared to be seeking to obtain what he believed he and the plaintiff had been promised, and did in fact transfer funds from the deceased's account; and

(c) that the two brothers were concerned for each other's welfare.

233 The messages are consistent with evidence of the plaintiff and John that the deceased had promised each of his sons certain assets, and that this was a source of conflict. However, in the Court's view the messages are to be read in a context where they were written in the immediate aftermath of significant separate arguments that the deceased had with Anthony and the plaintiff, at a time when the deceased was hospitalised and unwell. Viewed in this context, they provide limited assistance on the issue of whether the deceased was under a special disability in June 2017. Additionally, the deceased himself became aware of the messages in January 2017; a fact that perhaps may have put him on greater alert of what was contended to be the 'stronger position' of his sons later that year.

234 The plaintiff submits that a Jones v Dunkel[113] inference should be drawn, as the defendant failed to call Anthony. As set out in greater detail below, the Court does not consider that such an approach to reasoning is applicable where Anthony cannot be considered 'in the camp' of the defendant. This is particularly so where the unconscionable conduct defence involves questions of fact concerning Anthony's conduct.

Was the special disadvantage sufficiently evident to the plaintiff, and did the plaintiff take unconscientious advantage of the deceased?

235 Given the Court's finding that the plaintiff was not suffering from a special disability or disadvantage that seriously affected his ability to make a judgment in his best interests, it is strictly unnecessary to consider both whether the special disadvantage was known to the plaintiff, and whether the plaintiff took unconscientious advantage of his position. In the event that the finding is incorrect however, and for completeness, the Court will briefly consider the remaining elements of the claim.

236 The Court accepts that the position of the defendant was known to the plaintiff. The plaintiff was aware that: the deceased was seeking to rearrange his assets in the context of his ill-health; damage had occurred to Gipps Street; Anthony had made demands of payment; and that the deceased was wanting Anthony to vacate and the VCAT proceedings had not achieved this end. While there is no evidence that the plaintiff had detailed knowledge of the deceased's finances, he was aware of the deceased's chief assets and the aim to deal with Gipps Street. Further, the plaintiff knew that: the deceased was unhappy with the lawyers he had engaged for the VCAT proceeding; did not want lawyers involved; and was seeking 'a document' to procure Anthony's exit from Gipps Street. That document was to address a family matter and, upon the plaintiff's evidence, was not to be a 'full blown legal document'. The plaintiff was in a position of trust and strength relative to the deceased in seeking to achieve this end. In such circumstances, he drafted a deed, which was then executed in a binding fashion. The terms of the deed were favourable to the plaintiff and Anthony, at the expense of the deceased. In the Court's view, such circumstances amounted to the plaintiff taking unconscientious advantaged of the deceased.

Was the intention of the deed to establish a trust?

237 Relying upon both the terms of the deed, and Ms Nguyen's evidence of a family meeting, the defendant asserts that the deceased was to pay the plaintiff $300,000 on the basis that the funds would be held on trust, for the benefit of Anthony. He contends that the trust never came into existence as the property never transferred from the deceased, or alternatively, that if a trust was created, it was terminated by Anthony when he entered into the contract of settlement with the deceased dated 17 July 2017.

238 The plaintiff denies that there was a trust, asserting that the deed clearly shows an intention contrary to a trust relationship. That is, a trust will not be created where language is used that clearly negates any intention to impose a trust,[114] and that it should not be indiscriminately inferred where there is a contractual relationship between the parties.[115]

239 Further, there is no evidence to support Ms Nguyen's allegation that there was an alleged 'family agreement' that the funds would be held on trust, and an adverse inference should be drawn in respect of Anthony failing to give evidence. The plaintiff also contends that in any event, as trustee, he may sue on behalf of the trust.

240 As French CJ stated in Korda v Australian Executor Trustees:

The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.[116]

241 The principal question is the outward manifestation of intention within the totality of the circumstances, that is, to determine the meaning of what the parties have said, rather than what they meant to say.[117]

242 The express language of the deed is not consistent with an intention of the deceased, as purported settlor, that the $300,000 was to be held by the plaintiff for Anthony's benefit. Although it is possible for a trust to be found where the language of a gift has been used,[118] here, cl 1(a) refers to the transfer of funds as an irrevocable gift and cl 1(f) states '[the deceased] and [Anthony] agree that the [p]ayment is an irrevocable gift to [the plaintiff] for use at his discretion.

243 As discussed above, the deed's text, and the surrounding circumstances, support the conclusion that its purpose was to resolve two overlapping points of disagreement between the parties: first, the payment of a gift to the plaintiff, and second, Anthony vacating Gipps Street. The purpose does not appear to have been for the plaintiff to receive the funds for the benefit of Anthony.

244 Weighing against such a finding are three specific pieces of evidence. First, Ms Nguyen deposed that the deceased stated that a family meeting occurred between the deceased and his sons, at which he agreed to give 'Anthony $300,000 to leave Gipps Street, but on the basis that [the plaintiff] would hold the money on trust pending Anthony completing his studies'. Additionally, during cross-examination the plaintiff conceded that there were discussions concerning using the funds to find accommodation for Anthony, but that they fell away when it became known that Anthony's name was on the public housing lease. As such, it may be that the deceased and plaintiff contemplated that the funds were to assist Anthony in some way. This is consistent with the final piece of evidence, that the deceased said to the plaintiff that he wanted to give the plaintiff money to help him move Anthony out of Gipps Street. On one view, this could be construed as applying the money toward finding alternative accommodation for Anthony.

245 However, the evidence of Ms Nguyen is general, failing to detail when, or in what circumstances, the deceased recounted the family meeting, and it is unclear when the discussions referred to by the plaintiff in cross-examination are said to have occurred. Further, the statement of the deceased, as recounted by the plaintiff, is somewhat ambiguous. As such, on balance, and in light of the express terms of the deed, the Court cannot conclude that the intention of the deceased was to establish a trust.

246 For completeness, it is noted that the plaintiff submits that an adverse inference should be drawn against the defendant, as he did not call Anthony as a witness after issuing a subpoena and informing the Court that Anthony would be called.

247 The rule in Jones v Dunkel is an approach to reasoning that may be applicable in certain circumstances. Where it applies, it involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default. In Payne v Parker,[119] Glass JA noted the three conditions required before such an approach is permissible: the missing witness would be expected to be called by one party rather than the other; her or his evidence would elucidate a particular matter; and her or his absence is unexplained.[120] Regarding the first condition, his Honour explained that the witness may be regarded as 'in the camp of one party, so as to make it unrealistic for the other party to call him'. Further, 'the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary'.[121]

248 In the current circumstances, it has been unnecessary to draw inferences from limited evidence regarding the intention to create a trust. Rather, the text of the deed itself chiefly precludes such a finding. However, even if 'uncertain inferences' were relied upon, the reasoning in Jones v Dunkel would not have applied. While Anthony would be able to elucidate evidence regarding any intention to create a trust and his absence as a witness is unexplained, in the Court's view, he cannot be considered 'in the camp' of the defendant. The evidence discloses a degree of disharmony between Anthony and Ms Nguyen, and Ms Nguyen is the primary beneficiary of the deceased's estate, which will retain $300,000 should the defendant succeed. Further, although the relationship between the two may have changed after the events of July 2017, Anthony is the plaintiff's brother, and at times the plaintiff was his father figure. On the whole, the Court is not satisfied that he was 'in the camp' of either party.

249 In relation to the plaintiff's claims, the Court has determined as follows:

(a) in cl 1(a) the deceased covenanted to gift the plaintiff $300,000 before 28 July 2017. The gift was to be repaid if Anthony did not vacate Gipps Street. The plaintiff has not established that there was an implied term that he was to use reasonable endeavours to cause Anthony to vacate Gipps Street. That is, there was no contractual bargain that he was to provide such services in consideration for payment of $300,000;

(b) the plaintiff cannot seek the equitable remedy of specific performance of cl 1(a) as he did not provide consideration and was not a joint promisee with Anthony;

(c) while the plaintiff's common law rights remain, he did not plead any loss or make submissions in this regard; and

(d) the claim of promissory estoppel fails, chiefly due to substantial detriment not being established.

250 As to the other issues raised by the defendant:

(a) the plaintiff did not engage in unconscionable conduct in entering the deed with the deceased; and

(b) it was not the intention of the parties to establish a trust.

251 Accordingly, the Court orders that the plaintiff's proceeding be dismissed.

252 Subject to any submissions to the contrary, the Court proposes to order that the plaintiff pay the defendant's costs of and incidental to the proceeding assessed on the trustee basis, and the plaintiff bear his own costs.

[1] Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77, [2] (Harper J); Countryside Austral Pty Ltd v Emergency Media Pty Ltd [2018] VSC 540, [36] (Riordan J).

[2] Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] VicRp 58; [1996] 2 VR 79, 80 (Beach J).

[3] Evidence Act 2008 (Vic) s 55(2)(a).

[4] Ibid s 135(b).

[5] Goddard Elliot (a firm) v Fritsch [2012] VSC 87, [63] (Bell J).

[6] Relying upon Evidence Act 2008 (Vic) s 59 and the lack of a s 67 notice.

[7] See John Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2020) [37085].

[8] See Lithgow City Council v Jackson (2011) 244 CLR 352, 373 (French CJ, Heydon and Bell JJ).

[9] In this regard, reliance is placed on Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347 (Mason J) ('Codelfa').

[10] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 (Viscount Dilhorne, Simon and Keith LJJ) ('BP Refinery').

[11] Laszczuk v Bendigo & Adelaide Bank Ltd (2020) 61 VR 1, 11-12 [38] (Whelan, Hargrave and Emerton JJA).

[12] Ibid 12 [40] (Whelan, Hargrave and Emerton JJA).

[13] Morley v Boothby [1825] EngR 575; [1825] 130 ER 455, 456-7 (Best CJ).

[14] Nicholas Seddon, Seddon on Deeds (Federation Press, 2015) 174, citing Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45, 51-2 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[15] Seddon (n 14) 174; Intel Corporation v Unwired Group Ltd [2008] FCA 1927, [32] (Rares J); LexisNexis Butterworths, Halsbury's Laws of Australia (7 October 2016) [140-490], citing Throckmerton v Tracy (1555) 1 Plowd 145; 75 ER 222; Hilbers v Parkinson [1883] UKLawRpCh 245; (1883) 25 Ch D 200, 203-4 (Pearson J); Schenker & Co (Aust) Pty Ltd v Maplas Equipment & Services Pty Ltd [1990] VicRp 74; [1990] VR 834, 840 (McGarvie JA).

[16] Adaz Nominess Pty Ltd as trustee for the Rado No 2 Trust v Castleway Pty Ltd as trustee for the Castleway Trust [2020] VSCA 201, [70] (Whelan JA and Riordan AJA) ('Adaz Nominees').

[18] See generally LexisNexis Butterworths, Carter on Contract (2002) [12-030] ('Carter on Contract').

[19] Seddon (n 14) 174.

[20] BP Refinery (n 10), adopted in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 605-6 (Mason J), as cited in Adaz Nominess (n 16) [71] (Whelan JA and Riordan AJA); Codelfa (n 9) 346-7 (Mason J).

[21] See discussion in Hawkins v Clayton (1988) 164 CLR 539, 571 (Deane J).

1. [22] As to recitals forming part of the material the Court can consider, see Longdale Pty Ltd v Vence Pty Ltd [2009] VSC 471; Seddon (n 14) 175-8.

[24] This issue was not raised by the defendant. The Court is prepared to accept, without deciding, that the plaintiff's evidence was admissible as evidence of surrounding circumstances.

[25] Codelfa (n 9) 346-7 (Mason J).

[26] Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227 (MacKinnon LJ) ('Shirlaw').

[27] BP Refinery (n 10).

[29] Codelfa (n 9) 346 (Mason J); Shirlaw (n 26); Carter on Contract (n 18) [11-080], citing Heimann v Commonwealth [1938] NSWStRp 47; (1938) 38 SR (NSW) 691, 695 (Jordan CJ).

[30] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 66 (Gibbs CJ).

[31] See, eg, Baese Pty Ltd v RA Bracken Building Pty Ltd (1990) 6 BCL 137, 142 (Giles J).

[32] Concut Pty Ltd v Worrell (2000) 176 ALR 693, 699 [23] (Gleeson CJ, Gaudron, McHugh, Gummow and Kirby JJ).

[34] Cf Carter v Dennis Family Corporation [2010] VSC 406, [22] (Habersberger J).

[35] (1990) 169 CLR 549 ('Corin v Patton').

[36] (1862) All ER 783 ('Milroy v Lord').

[37] Anning v Anning [1907] HCA 13; (1907) 4 CLR 1049, 1074 (Isaacs J) ('Anning').

[38] See, eg, Chappell & Co Ltd v Nestle Co Ltd [1959] UKHL 1; [1960] AC 87.

[39] Re Porter [1989] FCA 342; 88 ALR 621; Massey v Crown Life Insurance [1977] EWCA Civ 12; [1978] 2 All ER 576, 579 (Lord Denning MR) ('Massey'), approved in AMP v Chaplin [1978] UKPC 7; (1978) 18 ALR 385, 389 (Diplock, Simon, Fraser, Russell and Scarman LJJ).

[40] Brooks v Burns Philip Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432, 464 (Windeyer J) ('Brooks v Burns').

[41] Anning (n 37); Olsson v Dyson [1969] HCA 3; (1969) 120 CLR 365, 386 (Windeyer J).

[42] Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516, 556 [103] (Gummow J) ('Roxborough').

[43] Scaddafi v Chief Executive officer, Department of Local Government [2017] WASCA 222; (2017) 52 WAR 368, 394-5 [133] (Buss P, Mitchell and Beech JJA), quoting John Carter, Contract Law in Australia (6th edn, 2013) [6-11].

[44] Carter on Contract (n 18) [06-050]-[06-060].

[45] (1860) 142 ER 52.

[46] See also Tanner v Tanner [1975] EWCA Civ 4; [1975] 3 All ER 776, which was a case in which a married man purchased a house for a woman and their children to live in. An issue arose as to whether the woman was living in the house as a bare licensee or as a contractual licensee. Lord Denning MR determined that a contract existed, as in giving up her rental property the woman had provided consideration.

[47] Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1; [1915] AC 847, 853 (Viscount Haldane, Dunedin, Atkinson, Parker, Sumner and Parmoor LJJ) ('Dunlop Pneumatic'); see Coulls v Bagot's Executor and Trustee Co. Ltd [1967] HCA 3; (1967) 119 CLR 460, 494-5 (Windeyer J) ('Coulls v Bagot's'); Trident General Insurance Co v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 114 (Mason CJ and Wilson J) ('Trident v McNiece').

[48] See, eg, discussion of Windeyer J in Coulls v Bagot's (n 47).

[49] Trident v McNiece (n 47) 115-116 (Mason CJ and Wilson J), 126-127 (Brennan J), 164 (Toohey J) and 173 (Gaudron J).

[50] Michael Furmston, Cheshire, Fifoot and Furmston's Law of Contract (Oxford University Press, 16th ed, 2012) 106.

[51] Coulls v Bagot's (n 47) 478-9 (Barwick CJ); Trident v McNiece (n 47) 145 (Deane J); see also McEvoy v Belfast [1935] AC 24, 43 (Atkin LJ); New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1974] 1 NZLR 505, 522 (Simon LJ, dissenting).

[52] Brian Coote, 'Consideration and the Joint Promisee' (1978) 37(2) Cambridge Law Journal 301, 307.

[53] N Seddon et al, Cheshire and Fifoot's Law of Contract (LexisNexis, 10th ed, 2012) [4.8].

[54] Carter on Contract (n 18) [18-080]; see also Seddon (n 14) 207 regarding multiple obligees.

[55] Carter on Contract (n 18) [18-100].

[56] Trident v McNiece (n 47) 123 (Mason CJ and Wilson J).

[59] Carter on Contract (n 18) [06-070]; Dunlop Pneumatic (n 47) 853 (Viscount Haldane, Dunedin, Atkinson, Parker, Sumner and Parmoor LJJ); Morley v Boothby (n 13).

[60] See Cannon v Hartley [1949] Ch 213 (Romer J), and discussion in Dianne Everett, 'The Role of Deeds in Property Transactions - Contractual and Dispositive Acts' [1989] BondLawRw 5; (1989) 1(1) Bond Law Review 94; Myles McGregor-Lowndes, Gifts, the law and functional rationalism (Queensland University of Technology, 1993) 9-10.

[61] Seddon (n 14) 17.

1. [62] Cannon v Hartley (n 60) 223 (Romer J); see also Roxborough (n 42) 556 (Gummow J); Netglory Pty Ltd v Caratti [2013] WASC 364, [728]-[729] (Edelman J) ('Netglory').

[63] Netglory (n 62) [732] (Edelman J).

[65] See discussion in Samuel Stoljar, 'Enforcing Benevolent Promises' [1989] SydLawRw 3; [1989] 12 Sydney Law Review 17, 17.

[66] Corin v Patton (n 35) 557 (Mason CJ and McHugh J).

[67] Conlan (as liquidator of Oakley Acquisitions Pty Ltd) v Registrar of Titles [2001] WASC 201; (2001) 24 WAR 299, 338 [203] (Owen J).

[68] For example, love and affection, blood and marriage may be regarded as good consideration in family settlements: see Seddon (n 14) 217-8.

[70] Netglory (n 62); Cannon v Hartley (n 60) 217 (Romer J); Roxborough (n 42).

[71] Kekewich v Manning [1851] EngR 997; [1851] 42 ER 519, 524 (Knight-Bruce LJ); Anning (n 37) 1081 (Higgins J).

[72] Milroy v Lord (n 36) 1189 (Knight-Bruce LJ).

[73] Ibid 1189 (Knight-Bruce LJ); Corin v Patton (n 35) 550 (Mason CJ and McHugh J).

[74] Corin v Patton (n 35) 559 (Mason CJ and McHugh J), 582 (Deane J).

[76] Ibid 557-8 [34] (Mason CJ and McHugh J).

[77] Although on a natural reading of the deed the plaintiff promises to provide a receipt and to return the funds in the event that Anthony failed to vacate, these were not relied upon as consideration.

[78] Re Porter (n 39).

[79] See generally Massey (n 39), approved in AMP v Chaplin (n 39).

[80] See generally Brooks v Burns (n 40).

[81] [2019] VSCA 236 ('FJ & PN Curran Pty Ltd').

[82] (1988) 164 CLR 387 ('Walton Stores').

[83] FJ & PN Curran Pty Ltd (n 81), [253] (Whelan, Niall and Ashley JJA), quoting ibid 428-9 (Brennan J).

[84] Carter on Contract (n 18) [07-010].

[85] Waltons Stores (n 82) 423 (Brennan J); see also Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1; Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, 547 (Dixon J); Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 437 (Mason J and Deane J).

[86] Giumelli v Giumelli (1999) 196 CLR 101, 121 (Gleeson CJ, McHugh, Gummow and Callinan JJ), quoting Riches v Hogben [1985] 2 Qd R 292, 300-1 (McPherson J).

[88] See Carter on Contract (n 18) [7-060]; Workplace Safety Australia v Simple OHS Solutions Pty Ltd [2015] NSWCA 84; (2015) 89 NSWLR 594, 621 (Bathurst CJ) ('Workplace Safety Australia').

[89] Workplace Safety Australia (n 88) 621 [140] (Bathurst CJ); Standard Chartered Bank Australia Ltd v Bank of China (1991) 23 NSWLR 164, 180-1 (Giles J); Murphy v Overton Investments Pty Ltd [2001] FCA 500; (2001) 112 FCR 182, 202 (Branson J); John Heydon et al, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) [17-265].

[90] Varma v Varma [2010] 6 ASTLR 152, [486] (Ward J).

[91] (2014) 251 CLR 505.

[92] Ibid 522-3 [58] (French CJ, Kiefel, Bell and Keane JJ) (citations omitted).

[93] See New Zealand Pelt Export Co Ltd v Trade Indemnity New Zealand Limited [2004] VSCA 163, [99] (Ormiston JA, with whom Nettle JA and Hansen AJA agreed).

[94] Walsh v Walsh [2012] NSWCA 57, [13] (Meagher JA, with whom Macfarlane and Barrett JJA agreed), quoting Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 (Dixon J) and stating that the quote applied equally to promissory and proprietary estoppels.

[95] Ibid [14] (Meagher JA, with whom Macfarlane and Barrett JJA agreed).

[96] Sullivan v Sullivan (2006) 13 BPR 24, [20]-[24] (Handley JA); see Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) (2018) 58 VR 91, 124 (Kyrou, McLeish and Hargrave JJA) ('Bullhead'); Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205, [462] (Ginnane J) ('Moala').

[97] Moala (n 96) [461] (Ginnane J); Thompson v Palmer (n 85) 547; Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298.

[98] [2012] NSWCA 57.

[99] Bullhead (n 96) 126 (Kyrou, McLeish and Hargrave JJA) (emphasis in original) (citations omitted).

[100] [2012] NSWCA 57, [31] (Meagher JA, with whom Macfarlane and Barrett JJA agreed).

[101] See generally Olsson v Dyson (n 41); Dillwyn v Llewelyn (1862) 4 De GF & J 517.

[102] See paras [136] and [137] above.

[103] Cf Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101, 116 (White J).

[104] See, eg, Commonwealthth v Verwayen (1990) 170 CLR 394 (stress and ill-health associated with pursuing litigation over more than 12 months on the understanding that the Commonwealth were not challenging liability, in a context where the damages claimed included those for a high level of anxiety and depression); W v G (1996) 20 Fam LR 49 (expensive and onerous task of raising two children).

[105] (2017) 19 VR 577, 583 (Nettle JA).

[106] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85, 112 [64] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392, 426-7 [124] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) ('Kakavas'); Mentink v Olsen [2020] NSWCA 182.

[107] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 474 (Deane J).

[108] Thorne v Kennedy (n 106) 103 [38] ('Kiefel CJ, Bell, Gageler, Keane and Edelman JJ') (citations omitted).

[109] Kakavas (n 106) 425 [118] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).

[110] Mackintosh v Johnson [2013] VSCA 10; (2013) 37 VR 301, 304 [11] (Buchanan, Whelan JJA and Hargrave AJA).

[111] Ibid 304 [12] (Buchanan, Whelan JJA and Hargrave AJA).

[112] Thorne v Kennedy (n 106) 105 [43] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ), quoting Jenyns v Public Curator (Q) [1953] HCA 2; (1953) 90 CLR 113, 118-9 (Dixon CJ, McTiernan and Kitto JJ).

[113] [1959] HCA 8; (1959) 101 CLR 298.

[114] Marks v CCH Australia Ltd [1999] 3 VR 513, 532 (Mandie J).

[115] Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62, 73 [11] (French CJ).

[117] Alston v Cormack Foundation Pty Ltd (2018) 358 ALR 263, 310-1 [187]-[193] (Beach J); Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493, 525 [119] (Bell, Gageler and Keane JJ); Trident v McNiece (n 47) 121 (Mason CJ and Wilson J).

1. [118] See Westlaw AU, Ford and Lee: the Law of Trusts (2012) [2.040], citing Robertson v Allen (2003) 11 BPR 21, 213 (Bryson J).

[119] [1976] 1 NSWLR 191.