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[2023] VSC 535
Supreme Court of Victoria
2023-09-07
Daly AsJ
Original judgment source is linked above.
ESTOPPEL - Proprietary estoppel - Alleged oral representations made by defendant to plaintiff that she and her late husband would receive transfer of a property - Plaintiff and her late husband lived at the property and spent funds saved for a deposit on renovations to the property - Whether representations made - Standing of plaintiff to bring a claim when husband died intestate and no letters of administration obtained - Held, no representation made, but if made, standing issue would limit the remedy available to the plaintiff.
EQUITY - Proprietary estoppel - Estoppel by encouragement or acquiescence - Extensive renovations carried out to the property by the plaintiff and her late husband in reliance on the alleged oral representations or conduct which induced an expectation that the property would be transferred to them - Held that plaintiff and her late husband funded two-thirds of the costs of the renovations - Held that defendant did not encourage the plaintiff to renovate the property - Held that the defendant stood by and allowed the plaintiff and her late husband to proceed with renovations to the property under a mistaken assumption to the future ownership of the property.
EQUITY - Remedies - Prima facie entitlement to a transfer of the property affected by the presumption in equity that co-owners of property hold their interests as tenants in common - Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 referred to - Entitlement to equitable compensation - Proper measure of equitable compensation - Insufficient evidence of counterfactual to base compensation upon loss of opportunity to purchase own home - Equitable compensation should be referable to payments made for renovations - Whether equitable compensation should be reduced or extinguished by the value of benefits received by the plaintiff during the course of her occupation of the property - Whether proper measure of damage the sums expended on renovations plus interest or the contribution made by the plaintiff to improving the value of the property.
RESTITUTION - Counterclaim by defendant for restitutionary damages - Whether express or implied agreement for possession of the property for the payment of rent - Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 referred to - Mesne profits - Mere occupation of property does not establish an agreement - Australian Provincial Assurance Association Ltd v Rogers [1943] NSWStRp 6; (1943) 43 SR (NSW) 202 referred to and applied - Held no such express or implied agreement - No entitlement to restitutionary damages - Counterclaim dismissed.
EVIDENCE - Onus and standard of proof - Court is not bound to make findings of fact on the basis of one party's version of events - Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 referred to - Consideration of the effect of the passage of time on the reliability of evidence - Use of contemporaneous documents in evaluating plausibility of events - Kalam v Kalam [2015] VSC 72 referred to - Reasonable, common sense approach to competing facts - Assessment of credibility of witnesses - Duic v Duic [2012] NSWSC 76 referred to and approach adopted.
1 These reasons concern a dispute within the Salehi family over the ownership of a two storey, five bedroom home in Ashburton ('property'). The plaintiff, Ms Marym Salehi, has lived at the property with her family since late 2001. The registered proprietor of the property is the defendant, Dr Nouria Salehi, Marym's sister-in-law. However, Marym[1] says that she is the rightful owner of the property, by reason of, among other things, representations said to have been made by Nouria to her and her late husband in 2001. The property is valued at approximately $2 million.
2 Both Marym and Nouria were born and raised in Afghanistan, and were part of the 'first wave' of Afghan migrants to Australia after what was then the USSR invaded Afghanistan in late 1979. Nouria was studying biophysics and nuclear physics in France when the invasion occurred, and after she completed her studies in 1981, she migrated to Melbourne, where two of her brothers already lived. Apparently there were only five families of Afghan origin living in Australia at that time.
3 After arriving in Melbourne in April 1981 Nouria obtained employment with the Royal Melbourne Hospital ('RMH') as a biophysicist and nuclear physicist, and worked there, largely in a research capacity, until her retirement in or around 2017. She is also a part owner of a business owned by some members of the Salehi family, the Afghan Gallery restaurant in Fitzroy, and has been involved in numerous philanthropic ventures and activities, many of which have been directed at helping with the resettlement of refugees from Afghanistan in Australia, and promoting economic development and gender equity in Afghanistan. She is now 80 years of age, but remains active in community affairs. She is very prominent and well regarded in the Afghan diaspora community and the community at large.[2] Nouria was preceded by or followed to Australia by seven of her nine siblings and her parents during the course of the 1980s. Two siblings remained in Europe.
4 By reason of her academic qualifications and professional achievements, and no doubt her personality and her status within the community, Nouria holds considerable sway within the extended Salehi family, both among her siblings and her nieces and nephews, many of whom are now adults. She describes herself as a family elder. She has never married, and has been actively involved in the lives of many family members. Marym says that family members looked to her for guidance and solutions, as Nouria was familiar with the Australian 'system'. Nouria has also been very generous to many family members over the years, including to Marym and her immediate family. The question in this proceeding is whether that generosity extended to giving Marym and her late husband a valuable property.
5 In 1985, Nouria purchased the property for approximately $120,000. The house on the property was built in the 1950s, and is reasonably large, with five bedrooms. Along with Nouria, Nouria's sister Golalai and her brother Timur were the registered proprietors of the property, despite her siblings not having made any financial contribution to the purchase of the property. Nouria explained that she wanted her siblings to have a stake in the property to encourage them to remain in Australia rather than return to Europe, as she feared they might do.
6 Nouria's parents arrived in Australia in or about 1985, and commenced living at the property along with Golalai, Timur, and Nouria's niece and nephew, Homaira and Karim. Nouria also allowed the property to be used for short stay accommodation for newly arrived Afghan refugees, some of whom were sponsored by Nouria and employed by the Afghan Gallery restaurant to assist with their applications to live permanently in Australia. It seems that no family member or other guest paid Nouria any rent for living at the property at any time prior to 1992.
7 Golalai and Timur left the property during the course of 1987, when they each married. Nouria paid them a total of $77,500 for their interests in the property, and since 1989, Nouria has been the sole registered proprietor of the property. After Nouria purchased the property, it was encumbered by a mortgage. Nouria paid all of the mortgage repayments. By the mid-2000s, the loan secured by the mortgage was almost fully paid off. In 2006, Nouria borrowed further funds (approximately $400,000), which she said were used to fund renovations to a property she owned in France, an apartment in Lyon ('Lyon apartment'), and to assist with the purchase of another property.[3]
8 In 1987, Sultan, Nouria's younger brother, arrived in Melbourne from Europe, and commenced living at the property with his parents, niece and nephew, and for a time his brother Aref. Sultan was Marym's late husband. He had been studying and working in Belgium, where he had qualified as an architect. However, his qualifications were not recognised in Australia, and while he was fluent in French and German, he never really learned to speak or write English.
9 Nouria and Sultan had a special relationship. At the age of 10, Sultan was diagnosed with a serious heart condition. Nouria, who was nine years his senior, took responsibility for his care, both in Afghanistan, and later in France, where he travelled for surgery when she was pursuing her studies in Lyon. The surgery was at least partially successful, but Sultan's health was always quite delicate.
10 In 1989, Sultan left Australia and travelled to India. In New Delhi, he met Marym, a woman then in her late twenties some 13 years his junior, who was visiting there with her family. They became engaged, and married in New Delhi soon afterwards. Some of Sultan's sisters attended the wedding.
11 In 1990, Sultan and Marym moved to Melbourne, and went to live at the property with Sultan's parents and niece and nephew, where they stayed for about a year. Marym, who had qualified in Afghanistan as a pharmacy technician, devoted herself to learning English and pursuing further studies in applied science with the aim of qualifying as a pharmacist in Australia.
12 It seems that the relationship between Marym and at least some members of the extended Salehi family was somewhat rocky. Marym said that Sultan's siblings were loud and opinionated, and were often verbally abusive to her. However, given that the children of Sultan's siblings and her children were of a similar age, and all grew up together, she did not protest her treatment or seek to distance herself from the extended family. By all accounts she and Nouria enjoyed a warm relationship until they fell out in 2017 in circumstances which will be discussed later in these reasons. Marym and Sultan lived with Nouria at her apartment in East St Kilda for about a year after leaving the property.
13 In 1993, Wais, the couple's first son was born. At around this time the family moved to a two bedroom apartment in Armadale, not far from the family fish and chip shop in Windsor, which Timur had purchased some time after his arrival in Australia. Sultan regularly worked at the fish and chip shop, and had done so since around 1991. According to Marym, he took over the running of the business in about 1994, working long and unsociable hours.
14 The fish and chip shop address was given as Sultan's business address when Marym and Sultan applied to establish an account with what Marym described as the Islamic bank in 1996.[4] The application form also (somewhat misleadingly) described Sultan's occupation as being an architect. Marym said that they established this account to save for a house deposit, and they hoped to eventually qualify to take a home loan from the MCCA. Apart from the application form itself, no records of this account have survived. Mr Musleh, a close friend of Sultan, was subpoenaed by Marym to give evidence, and confirmed that Sultan asked him about the MCCA in about 1995, and told him that he and Marym wanted to buy a house. Mr Musleh said he went with Sultan to the premises of the MCCA some time in 1997.
15 Zahra, the couple's daughter, was born in 1995. Their second son, Hassib, was born in 2000. Wais is now 29, and works as a bricklayer. Zahra, 27, has a bachelor's degree from RMIT, and works as an account manager for a fundraising organisation. Hassib, now 22, is completing his post-secondary studies. Wais and Hassib live with their mother at the property. Zahra lived there until early 2022, leaving home when she got married.
16 Marym was not employed during the 1990s, and, while Sultan presumably derived some income from the fish and chip shop, it seems that the family were largely dependent upon social security benefits from Centrelink to support themselves. Despite this, Marym says that by early 2001, she and Sultan had saved approximately $40,000, which they planned to use as a deposit for a home, preferably in the Armadale/Ashburton/Glen Iris area. They hoped to purchase an older home requiring renovation for about $120,000 to $150,000,[5] with the plan being that Sultan would undertake any necessary renovations. As well as being a qualified architect, Sultan was also quite 'handy', having worked various construction jobs in Europe.
17 While she doesn't specifically recall telling Nouria that she and Sultan had saved $40,000, Marym says that details of their financial circumstances and their plans were well known to other family members, including Nouria. The members of the extended Salehi family (with Nouria's parents and eight of her nine siblings by then living in Melbourne with their spouses and children) met regularly, generally every weekend, and property was a frequent topic of discussion. As newly arrived migrants, they were keen to settle and establish themselves, and the family was described as 'business minded'. Nouria herself has purchased and sold a number of homes and investment properties in the Ashburton/Ashwood/Chadstone area since the 1980s, and a number of her siblings had also purchased homes and were raising their children in the area.
18 In 1992, Nouria purchased another property in Ashwood for her parents to live in ('Ashwood property'), following which she leased the property to an unrelated family. By 2001, she also owned investment properties in Chadstone and Phillip Island, and was living at the Ashwood property.
19 While Nouria and other family members who gave evidence on her behalf agreed that property matters were a frequent subject of discussion within the Salehi family, and that family members were generally aware of each other's business, they gave evidence that they were not aware that Marym and Sultan had saved $40,000 for a house deposit. Nouria said that she was aware that Sultan and Marym wanted to buy a home, and as such, they would need to accumulate funds for a deposit, but she was not aware that they had saved $40,000 to put towards a deposit. However, all agreed that by 2001, it was undesirable for Marym and Sultan to continue living in a small two bedroom apartment with three growing children.
20 Nouria gave evidence that some time in 2001, she received some disturbing news about Sultan's health. Sultan, who would have been in his early fifties at the time, told her that his heart was only functioning at the '20 percent level'. She discussed what she had learnt with one of her colleagues at RMH, Dr Willy Chan (who I understand to be a highly regarded cardiologist), who told her that a person with Sultan's condition would have a life expectancy of about eight or nine years. As it turned out, Sultan died seven years later.
21 In July and August 2001, Marym travelled to Europe with the children to visit members of her family. Sultan stayed in Melbourne, and it was during this period he had a discussion or series of discussions with Nouria. Nouria gave evidence that she had been informed by the tenant at the property that he and his family would soon be vacating the property (which they did in around August 2001). She decided to offer (or, in her words, 'give' or 'leave') the property to Sultan for him and his family to live in. She said she did so because she wanted to make life easier for Sultan, by enabling him to live in a house with space for the children and a garden, where he could entertain friends and family, in a neighbourhood close to his siblings and their families.
22 Nouria said that when she discussed her proposal with Sultan at the Ashwood property,[6] he was resistant at first, but agreed to the proposal provided that he pay her rent for the property. He suggested that he pay $1,200 per month in rent, which was what he was expecting to have to pay for a larger property should they leave the Armadale apartment, and she agreed.
23 Wais gave evidence that one day he answered the phone when his father called his mother while they were visiting family in Europe. Sultan told Wais that when they returned, they would be moving to a new home, being the property. He was very excited, and passed the phone to his mother.
24 Marym gave evidence that when she spoke to Sultan, he too was very excited. He told her that the property had become vacant, that Nouria had given the property to them, and that they could renovate the house using their own savings, which would be easier than borrowing money from the bank to buy a house. Sultan said that the house on the property needed an update, but they were able to renovate, and they could discuss where to start when she returned from Europe.[7]
25 By the time the family returned to Australia at the end of August 2001, Sultan had already started some renovation works at the property. He had removed all of the carpets in the house on the property, had purchased some hardwood flooring, and had started demolishing an external laundry at the rear of the house.
26 According to Marym, the original plan was for Marym and the children to stay in the Armadale apartment for a few months until the renovations were complete. It was not clear from the evidence the exact renovations she and Sultan had planned for the property at that time, given that the plans for the renovation were not drawn up until January 2002. However, she said that one day in October 2001, Nouria telephoned her and suggested she move to the property as soon as possible.
27 Marym gave evidence that during this phone call ('October 2001 conversation'), Nouria said that she should move to the property, as it was a bigger house, with a bigger backyard and more room for the children, she would be closer to Sultan, it might be difficult, but she would stop wasting money on rent. Marym agreed to do so because she thought it was a reasonable thing to do.
28 Nouria did not dispute Marym's evidence about the contents of the October 2001 conversation. Rather, her position is that nothing she said in the October 2001 conversation could amount to a representation that she would transfer the ownership of the property to Sultan and Marym.
29 There is a dispute about whether Marym and the children moved to the property some time in October 2001 (as Marym says) or at the end of November 2001 (as Nouria says). Arguably not much turns on this dispute, given that Nouria does not dispute what was said during the October 2001 conversation, and the very nature of the October 2001 conversation indicates that it must have taken place prior to Marym and the children moving into the property.[8]
30 Marym and the children did move to the property, probably in late November 2001, with the assistance of family members. Marym says that during the course of moving house, and at family gatherings at around this time, Nouria told family members in her presence that she had given Sultan and Marym the property, and that they were free to renovate it as they wished, because it was their home. Marym says that 'people' (more specifically, family members) were congratulating her and Sultan on their new home, and knew they were renovating the property.
31 Two family members called as witnesses by Marym gave (qualified) support for Marym's evidence. Ms Marizah Samad, a distant relative of both Marym and Nouria, and a long time friend of Marym, said that she attended a family gathering at Nouria's home at around the time Marym and Sultan moved to the property, where Nouria said words to the effect that the property would be Sultan and Marym's for the rest of their lives, or as long as they wanted to live there, and when the children grew up, it would be in their name, that is, in the children's names. Ms Forozan Shapoor, Marym's friend and ex-sister-in-law (she married Timur in 1987 and was divorced from him from 2006) said that she was present when Sultan and Marym moved into the property, and Nouria said that the property was their home, and they could do whatever they wanted with the property. Later, at a family gathering at the Ashwood property, Nouria said, in respect of the property, words to the effect that it is theirs now, and if they wanted to renovate or change it, that was up to them, because it was their house.[9]
32 Marym said that she wasn't surprised that Nouria had given them the property: she helped everyone in the family with their property purchases and their education. Also, Nouria and Sultan had a very good relationship, and Nouria knew that Sultan was unwell.
33 A few weeks after Marym moved into the property, there was a further conversation between Marym and Nouria ('$600 conversation'). Both women agreed that the $600 conversation took place, that it took place some time in late 2001, and that Marym attempted to give Nouria an envelope containing $600 in cash. However, their versions of the $600 conversation otherwise diverge. Marym says that the $600 conversation took place during a visit by Nouria to the property, and that Sultan and the children were present. Marym said that she commenced by saying that she would like to have a chat about the title of the property, because if Nouria was to change her mind about giving them the property, or there was any other issue, she would stop the renovations right now. She said that she told Nouria that they still had half of the money they had saved for a house deposit, and, they could go and look for a house and buy their own home.[10] She said she told Nouria that the $600 was for rent, which was the same rent that she was paying for the Armadale apartment.
34 Marym said that Nouria told her 'don't be silly, this is your house, I don't need your money, put your money away'. Nouria said that Marym and Sultan should not stress, and they should concentrate on finishing this mess (that is, finishing the renovations) and enjoying the property, which would be beautiful after the renovations were completed, because Sultan was so skilled. Marym gave evidence that after the $600 conversation, Marym and Sultan agreed between themselves to finish the renovations.
35 Nouria said that about a week after Marym moved to the property, Marym came to her sister's home with an envelope containing $600 for rent, telling her that it was difficult for them to pay more than that. Nouria told Marym to keep the money, and no rent was ever paid by Sultan or Marym for the property. She denied that anything was said about the title to the property in the $600 conversation.
36 Both women also agree that sometime between October and December 2001, Nouria signed a certificate verifying that Marym and Sultan were paying her $1,100 per month in rent for the property for the purpose of Marym claiming rent assistance from Centrelink. Marym had been receiving rent assistance for the period in which the family lived at the Armadale apartment. Nouria says she only signed one such certificate, and she did so at Marym's request, because Marym and Sultan were both unemployed, and because it would help them to get a 'few extra dollars'.
37 Nouria said that at the time she signed the rent certificate, she believed that Sultan and Marym would be paying rent, which she, unilaterally, had decided would be $1,100 per month, not $1,200 per month. In contrast, Marym says that it was Nouria's idea to claim rent assistance, and that she initially refused to do so, but Nouria was insistent, and after her demands became more frequent and strident, Marym gave in. She said that Nouria signed rent certificates for submission to Centrelink every six months until about 2010 or 2011, when Centrelink apparently ceased requiring Marym to provide regular certificates.[11]
38 Marym received rent assistance from Centrelink with respect to her occupation of the property between late 2001 and 2018, when Hassib turned 18.[12] She may also have received additional family tax benefit payments as a consequence of her eligibility for rent assistance, but whether this was in fact the case, and if so, the amount of any additional benefits received cannot be determined upon the available evidence.
39 Marym's receipt of rent assistance for many years while she was not paying any rent is of significance to the issues in this proceeding in a number of respects. First, depending upon which version of events is accepted, the issue has the capacity to affect the credibility of one or the other of Marym and Nouria, or both of them. Secondly, it is relevant to the question of whether Marym, in seeking equitable relief in this proceeding, has come to Court with clean hands. Thirdly, this issue is also relevant to Marym's case theory: her explanation of why Nouria promised to give the property to Sultan and Marym but did not want to pass the title to them immediately was because it was in Nouria's personal financial interests to retain the title to the property. Finally, Nouria points to Marym's receipt of nearly $60,000 in rent assistance as being one of the many benefits Marym has derived from her rent-free occupation of the property, which is said by Nouria to vastly outweigh any detriment incurred by Marym in reliance upon any representations made by or conduct of Nouria, if Marym's claim that she was induced by Nouria's representations or conduct to live at the property and to use their funds to renovate the property is accepted.
40 Returning now to the chronology of events, over the following years, from around mid 2002 up until 2007, the year that Sultan became seriously ill, extensive renovations were carried out at the property, although it seems that most of the works were complete by the end of 2005. The state of the property prior to the renovations, what work was done at the property, whether that work was necessary, who did the work, who paid for the work, and Nouria's knowledge of and views about the work are matters in dispute, of varying degrees of intensity and relevance to the primary issues in the proceeding.
41 The disputes about these issues and the evidence about the renovations will be discussed in more detail later in these reasons. However, in summary, between 2002 and 2007 the house on the property was indeed transformed from a structurally sound, but somewhat tired and dated house to a more modern, spacious, and comfortable residence, with plenty of space for a family of five. All agreed that Sultan was the project manager of the renovation, and did a lot of the physical labour himself, with the help of others, both paid and unpaid, and that his poor health was an impediment to the speedy completion of the work. Indeed, some family members (and his close friend, Mr Musleh) would say that his work on the renovations hastened his death.
42 Marym said she and Sultan paid for the renovations, including purchasing materials and fittings and hiring professionals for plumbing and electrical works. She said that Nouria encouraged them to complete the renovations, and that they did so, in reliance upon their assumption that the property was theirs.
43 Nouria said that she paid for the renovations, or at least all of the expenses associated with the renovations that she knew about, despite her opposition to the renovations. She said that she was opposed to the renovations being carried out, largely because of her concerns about Sultan's health and the disruption they caused to the family, but also because she considered that the house on the property was perfectly habitable as it was.
44 Marym commenced working in March 2004 as a pharmacy technician at a pharmacy in Toorak, where she still works today. In around 2004 or 2005, the fish and chip shop business was sold. It is not entirely clear from the evidence what share of the business Sultan actually owned, but Marym says that he received approximately $40,000 from the proceeds of sale, all of which was applied to the costs of the renovations. Sultan's niece Homaira Mershedi, who was called to give evidence by Nouria, said that she believes that the fish and chip shop business was sold for approximately $70,000, but that she did not know how much of that sum Sultan received.
45 The renovations were largely complete by the end of 2005, although some of the invoices and receipts in evidence ('renovation receipts') suggest that some largely cosmetic work was still being carried out in 2006 and early 2007. The renovation receipts, which, for reasons explained later in these reasons, are not a complete record of the costs involved in carrying out the renovations, show that $39,630.45 was spent on trades, materials, and fixtures and fittings during the course of the renovations.[13] However, the renovation receipts do not include money paid to at least two labourers hired by Sultan, 'Abdullah' and Mr Rahim ('workers'). Neither of the workers gave evidence.[14]
46 Marym says that the renovations cost $156,510, based upon a record in a notebook she was using at the time, and were paid for by her and Sultan from their savings of $40,000, a further $40,000 from the proceeds of sale of the fish and chip shop, the funds raised by a personal loan taken from the ANZ Bank ('ANZ Loan') and from Marym's income from the pharmacy and Centrelink benefits. Marym said she gave Sultan cash to pay for materials and to pay the wages of Mr Rahim after she started work in March 2004. Zahra confirmed that she saw her mother preparing envelopes of cash for the workers.
47 Marym took out the ANZ loan in January 2005. She said she took out the ANZ loan to finish the renovations. By then, the structural work was largely complete, but there was still plastering and tiling left to be done. The drawdown of the ANZ loan occurred at around the time Marym and Sultan received a quotation for plumbing works at the property for $11,440, as shown by the renovation receipts. The ANZ loan was repaid in full in June 2005. Marym said that she does not recall Nouria repaying the ANZ loan, saying that she used her emergency savings to pay off the ANZ loan, as she could not afford to pay the regular instalments of $270 per month, and that Nouria told her to repay the ANZ loan. However, Nouria says that she paid off the ANZ loan at Sultan's request, by depositing a cheque at the ANZ branch at Melbourne University, but she has no record of that payment.
48 Nouria says that she reimbursed Sultan for all of the money he spent on the renovations that she knew about, largely in cash. She does not say how much she actually paid for the renovations over and above the $40,000 for trades and materials evidenced by the renovation receipts and her repayment of the ANZ loan, but she believes that some of the cash she gave to Sultan was used to pay Abdullah. She did not say when (that is, during which months or years) she made the payments. When asked about the system she had for making the payments, she said that Sultan would come to her home at 11pm at night and tell her that he needed $8,000 or $9,000 tomorrow. Sometimes her sister[15] would give money to him if Nouria was not there.
49 Sultan had little time to enjoy the fruits of his labours. In late 2007, he became seriously ill, and spent four months in hospital after surgery, much of it in the intensive care unit at the Monash Medical Centre with a post-operative infection. Some family members who gave evidence were critical of Marym for not taking the children to see Sultan often (or, according to Ms Mershedi, at all). He died in hospital on 1 April 2008. By this time, Wais was nearly 15, Zahra was 12, and Hassib was seven years old.
50 Marym gave evidence that in March 2008, while Sultan was in hospital (in a general ward rather than in the intensive care unit), she visited him, along with Nouria and Mr Musleh. She said that Nouria told Sultan that he shouldn't worry about anything, saying 'I'm here to knock off that debt'. She said words to the effect that Sultan shouldn't worry, she was there to look after them, and the family will be at the property forever, because that is their house. Mr Musleh did not give any evidence about this conversation.
51 Nouria denied telling Sultan when he was in hospital that the property was their house. Rather, she gave evidence that when she visited him in hospital on the night before his second operation in November 2007, Sultan asked her if she could look after the children's education. He also asked her what she would do if he died the following day. He said words to the effect 'what will you do with the house, will you leave my wife and children to live there or not?' In response, she assured him that Marym and the children could stay at the property until Hassib turned 18 and finished secondary school.[16]
52 On the day after Sultan died, the extended Salehi family gathered at the property to mourn his loss. There is a dispute as to what was said by Nouria at this gathering about the family's ongoing occupation of the property. There is no dispute that Mr Hassib Musleh, an old friend and former co-worker of Sultan's, conveyed to a number of family members, including Marym and Nouria,[17] what he said were Sultan's final requests, or arguably, demands. These requests included a request that Nouria and her sister Golalai be responsible for ensuring Sultan's family received everything that they were entitled to, that Marym not remarry, a request that his brother, Aref, look after the children and take Hassib to and from school because Marym was working, and a request that Nouria transfer the title of the property to Marym and the children. Marym said that, in response, Nouria said that she would transfer the title of the property to them (that is, Marym and the children) when Hassib turned 23.
53 Ms Samad gave evidence that she witnessed Nouria telling 'everybody' at the gathering that she was giving the property to Marym, that Marym could stay in the property, and when the children were grown up, the property would be in their names.
54 Mr Musleh gave evidence that Nouria, Marym and four other people, including Sultan's brother Aziz and his wife, were present when he conveyed Sultan's requests. He said that Nouria should pass the title of the property to the children. Nouria was very upset, and said, when Wais is 18,[18] when he finishes university, and Marym shouted 'Don't talk about these things'.[19] He recalled thinking that this was a strange response on Nouria's part, as an 18 year old could not have finished university.
55 Nouria and the witnesses called on her behalf who recalled the incident said that Mr Musleh's statements were met with the response from Springhar Komak, who was the husband of Nouria's sister Kaoki, that these were family matters of no concern to him, and that the family would look after Sultan's widow and children. Mr Komak is now deceased.
56 Nouria says that her position regarding the family's ongoing occupation of the property was consistent with the promise she made to Sultan in November 2007 while he was ill in hospital, and that is what she told those assembled at the gathering, and what she separately told other family members. Nouria's brother Aref and Ms Komak supported Nouria's version of what was said during the gathering. Nouria's brother- in-law, Mr Najeem, said he did not recall hearing any discussion about the property at the gathering, although he heard Nouria say in his presence on two or three occasions within a month or so of Sultan's death that Marym and the children could stay at the property until Hassib turned 18 and finished school.
57 Accordingly, nothing changed in the immediate aftermath of Sultan's death, although Marym says that Nouria started paying the rates for the property from then on. Prior to Sultan's death, either she or Sultan paid the rates, in cash, either at the offices of the City of Boroondara ('Council'), or at the Windsor or Ashburton post offices.[20] Nouria said that she always paid the rates, but prior to Sultan's death, she reimbursed him in cash for the payments that he made, because her internet banking wasn't functioning during that period.
58 In 2010, Marym bought an investment property in Hallam, which she later sold to buy another investment property in Hampton Park in 2012. At the time she commenced this proceeding in 2021, she owned another investment property in Doveton, which she purchased in 2016. She has now sold the property in Hampton Park, making a healthy capital gain, apparently in order to fund this litigation. Her only remaining asset (apart from her claim in this proceeding) is the Doveton property, which is encumbered by a mortgage.[21]
59 Marym gave evidence that she purchased the Hallam investment property after a discussion with Nouria at Nouria's home in 2010. She said that Nouria had told her in the beginning (that is, in 2001) that it was a very expensive and a lengthy process to transfer the title of a property to someone else. So she saved $20,000 and visited Nouria, telling her that she had a serious matter to discuss. She told Nouria that she had $20,000 in her bank account, and, if Nouria was happy to do so, then they should go ahead and change the title. But, once again, Nouria assured her, and said that there was no need for that, when she could do it, she would do it. Instead, Nouria suggested that $20,000 was enough for a deposit on a house in a cheaper suburb, which Marym could purchase as an investment property. Marym then proceeded to make a successful application for a loan, and purchased a property in Hallam for $320,000.[22] Nouria was not questioned by either counsel about this conversation, and therefore did not have an opportunity to either confirm or dispute this evidence.
60 Marym's older children, Wais and Zahra, gave evidence about a number of conversations that they had with Nouria between Sultan's death in 2008 and the falling out between Nouria and Marym and her children in 2017.
61 Wais gave evidence that over the course of his teenage years, he would occasionally run into Nouria at the Ashburton Recreation Centre ('leisure centre'). He regularly played indoor soccer at the leisure centre between the ages of 15 and 17 (that is, between 2008 and 2010), and Nouria regularly used the swimming pool at the leisure centre. However, the first conversation between him and Nouria about the property took place at Nouria's home in Chadstone, shortly after Sultan died. Wais said that Nouria took him into another room away from where he was sitting with his cousins and said words to the effect that 'Wais, don't tell anyone, but I have put the house in your name'. He would have been about 15 at the time of the conversation. He did not tell his mother about this conversation.
62 The next conversation took place at the leisure centre when he was about 15 or 16. Wais asked Nouria why she had not put the property in his mother's name. Her response was that 'your mum will just sell the house and move to Europe to be with her family'.
63 The next conversation also took place at the leisure centre when he was about 15 or 16. Wais said that Nouria told him that she would put the house in his little brother's name. Wais queried 'why not his sister?' In response, Nouria said that one day Zahra would get married and her surname would change (that is, she would no longer be a Salehi).[23]
64 A further conversation took place at the leisure centre when Wais was about 17. Nouria showed him a sheet of paper with an unruled table listing five or six properties, with the property being the first in the list. Nouria said 'this is how much land tax I have to pay, and I need you and your sister to start paying this now'.[24]
65 A further conversation took place at the leisure centre when he was about 17. Wais asked Nouria why she had not put the property into his mum's name, and she responded by saying that doing so would ruin Marym's Centrelink payments.
66 The last conversation Wais gave evidence about took place when he was between 18 and 20 years of age, when Nouria raised the issue of land tax again. Wais said words to the effect that 'if you had put the house in my name like you said you did all of those years ago, you wouldn't have to pay land tax'. Wais said that Nouria appeared to be quite shocked at this response, and she did not bring up the subject ever again.
67 Nouria denied that she ever had any conversations with Wais about the ownership of the property, or her concerns about how much land tax she had to pay with respect to the property. She said that she would never discuss such matters with children.
68 Zahra gave evidence about a number of conversations she had with Nouria:
(a) when Nouria visited the property in 2011 or 2012;
(b) when Nouria took her out to dinner in around 2011;
(c) during a visit by Nouria to the property in 2017 where Nouria made some angry remarks to her and her brothers about their treatment of their late father; and
(d) during two visits by Nouria to the property in 2017 where the development proposal was discussed by Nouria and Marym.
69 Nouria did not dispute the evidence given by Zahra in relation to (c) and (d) above, save that she denied that she called the children liars. In relation to (a) above, Zahra gave evidence that when she was in year 11 or year 12 (that is, in the early 2010s), Nouria came to the property with some groceries, and said words to the effect that 'the property is getting too expensive for me to maintain, with insurance, council rates and land tax, and now you guys are working, I need help to make the payments'. Zahra gave evidence that she responded with words to the effect that 'why don't you just transfer the title to our name and we'll be happy to pay and even back pay you for anything'.[25] Zahra said that Nouria responded with words to the effect that 'I'd love to put it under your name, but if I was to do that it would cut off your mum's social security benefits, so now is not the time to do that.'
70 In relation to (b) above, Zahra gave evidence that in 2011, when she was in Year 11, Nouria called her and asked her out to dinner. It was the first time that they had been out to dinner alone. Nouria started telling her about her superannuation fund, telling her that she had appointed Zahra and two of her cousins as directors of her superannuation fund (presumably, as directors of the trustee of a self-managed superannuation fund). Zahra said that during the course of this dinner, she asked Nouria why she had not put the property in her mother's name. Nouria responded by saying that if she did, Marym would sell the property and move to Europe to be with her family. Zahra says she accepted this response, as she was just being inquisitive, not trying to 'settle a matter', and she took the matter no further.
71 Nouria denied speaking to Zahra about the property or land tax in 2011 or at any other time, but agreed that she took Zahra out to dinner alone and told her that she would like to appoint Zahra (and one of Zahra's cousins) as trustees of her self-managed superannuation fund. However, she says that this dinner was in 2017 (when Zahra would have been 22 years of age), not 2011 (when Zahra would have been 16 years old). She denied that Zahra had asked her why she had not put the property in Marym's name.
72 As previously noted, it appears that until 2017 the relationship between Nouria and Marym was positive and warm. Marym had a great deal of respect for Nouria's capabilities and accomplishments. They occasionally went out for lunch or coffee together. Nouria was very generous to the family. She passed on her car to Marym when she bought a new car on at least three occasions, the last occasion being in 2017, and bought an almost new car for Zahra (who she clearly adored) when she got her driver's license. She paid for Wais and Zahra to join a family holiday in Thailand in 2010, and gave Wais some cash for a car and a holiday after he finished school, despite being disappointed that he did not go on to university. She gave Zahra $5,000 when she started university. She says she lent Marym some money to help her purchase her first investment property.
73 In about 2016, Nouria told Marym that she wanted to come and live at the property, as the house had plenty of bedrooms, and she wanted to get to know her nephews better. She also said that she 'wanted to show Marym that she was the owner of the house', and, by implication, that she could determine who could occupy the property. This was the context in which Nouria said she told the State Revenue Office ('SRO') that the property was her principal place of residence for land tax purposes.[26] However, Nouria said that while Marym verbally agreed to her proposal, Nouria believed that her expression said otherwise, and she took the matter no further. However, this incident did not lead to any serious falling out, as Nouria accepted that they had different personalities, with Nouria being more extroverted and sociable, while Marym was more introverted, and preferred to keep to herself and her immediate family.[27]
74 Zahra gave evidence that sometime in 2017, Nouria arrived at their home while just the children were there (noting that by this time, Wais and Zahra were young adults), demanding to know where Marym was, and making some angry and hurtful accusations about the children's alleged lack of care and respect for their late father. Zahra said that Nouria said, among other things, words to the effect that 'your dad died building this house for you guys and you never appreciated him'. Nouria does not deny that angry words were said by her, or that Wais asked her to leave, but said that the incident occurred after she had visited Sultan's grave and found it unkempt and untidy, which caused her to be upset with Marym and the children, who she considered were primarily responsible for its upkeep.
75 Finally, and there is no real dispute about this matter either, in early 2017, Marym and Nouria ran into each other in the leisure centre car park. Nouria told Marym that she had a plan to demolish the house on the property, and construct two townhouses on the site, giving one to Marym and keeping another for herself or to give to another family member ('development proposal'). The development proposal involved Marym selling one of her investment properties to fund the construction of the townhouses.[28] Marym gave evidence that she was shocked to hear this proposal, in particular, the prospect of telling the children that their aunt wanted to demolish the house that Sultan had built. She did not want to discuss such matters in the leisure centre car park, and asked Nouria to come to the property to discuss the development proposal there.
76 Nouria visited the property a few days later. Marym and Zahra were both present.[29] Nouria showed them some drawings prepared by her brother-in-law, Mr Najeem (who had also prepared the drawings for the renovation of the property back in January 2002). Marym said that Nouria commenced by saying that it was very expensive for her to cover the rates and land tax for the property, which Marym said she was willing to discuss. Nouria then said that she wanted to build two townhouses, with underground car parking, and that Marym's responsibility would be to sell her investment property to pay for the build. Marym gave evidence that she responded 'Okay, but if we're doing to do that, we'll have to have something in writing this time'. Nouria then got angry and left, and the two women have not spoken since. Nouria does not really dispute Marym's version of events, but said that she doesn't recall Marym saying that she wanted everything in writing. She said that she ended the discussion about the development proposal and left the property after Marym asked that the title of the property be transferred to her.
77 Zahra's evidence about what was said during this meeting largely aligned with her mother's evidence. Zahra gave evidence that at the first meeting, which was in late 2017 or early 2018, Nouria said that she wanted to demolish the house and subdivide the property. She said she and her mother were shocked, as Sultan had put his heart and soul into the renovations, and the house was perfectly fine. Nouria wanted to build two townhouses, and give one to one of her uncles. This did not make sense to Zahra, as the uncle concerned already owned an unencumbered property in Ashburton. Zahra said that when Nouria next visited the property, she told her and Marym that Mr Najeem had already drawn up plans for two townhouses. She said Marym was shocked and said words to the effect that 'No, I don't like his designs, I don't know why you'd think I'd agree to that', and 'if we are ever going to talk about this house or do anything about this house, it needs to be on paper this time'.
78 The evidence is silent as to what transpired in the months after this meeting. Mr Najeem was not questioned at any length about his role in assisting Nouria to formulate the development proposal, but during cross-examination he denied having any discussion with Marym about the development proposal.[30]
79 The date that Nouria said that Marym's occupation of the property was scheduled to end, being the end of 2018, came and went. However, nearly a year later, on 3 October 2019, Nouria's former solicitors wrote to Marym, stating that they had been consulted by Nouria about selling the property, which she wished to do in early 2020, and requested that Marym and her family vacate the property by 15 February 2020.
80 It is not clear whether Marym, or anyone on Marym's behalf, responded to this letter, as there is not a complete set of pre-proceeding correspondence in evidence. What appears from the correspondence in evidence is that the following took place over the course of 2019, 2020 and 2021:
(a) Marym lodged a caveat on the title to the property on 5 December 2019;
(b) on 6 December 2019, Marym's lawyers stated that the property was held on constructive trust for her, and that she would not be vacating the property;
(c) correspondence between the solicitors in January 2020 failed to resolve the impasse;
(d) on 23 November 2020, Nouria's solicitors wrote to Marym's solicitors providing a detailed rebuttal of Marym's claim to an equitable interest in the property, stated that Nouria wished to sell the property, demanded that Marym pay rent of $280 per week from the date that Hassib finished school in late 2018, demanded that Marym account to Nouria for the rent assistance payments she received from Centrelink, and served a notice to vacate in accordance with the Residential Tenancies Act 1997 (Vic);
(e) Marym issued this proceeding in the County Court on 4 December 2020;
(f) in 2021, Nouria unsuccessfully applied to the Victorian Civil and Administrative Tribunal ('VCAT') to force Marym to vacate the property. The VCAT proceeding has apparently now been discontinued; and
(g) the proceeding was transferred to this Court on 18 May 2021.
81 Since the proceeding was transferred to this Court, there have been some disputes between the parties concerning the discovery by Marym of the Centrelink documents, and the discovery by Nouria of her tax returns. There were also disputes about Marym's pleadings at the commencement of and during the course of the trial, with applications made by Marym to amend her statement of claim and her reply being partially successful. However, her attempts to amend her statement of claim to make a claim for a constructive trust over the property based upon the principles in Muschinski v Dodds,[31] and to amend her defence to counterclaim to assert an entitlement to adverse possession of the property were unsuccessful, largely on the basis that these claims were brought far too late, and were likely to derail the trial of the proceeding.
82 The second further amended statement of claim dated 29 November 2022 ('statement of claim') is a concise and simple document. In the statement of claim, Marym pleads, relevantly, as follows:
(a) she is the sole beneficiary of Sultan's estate, and as such the beneficial owner of Sultan's assets;
(b) in or about October 2001, Nouria repeatedly represented to Marym that the property was beneficially owned by Marym and Sultan ('representation'), relying upon the October 2001 conversation and the $600 conversation;
(c) the following particulars were provided of the alleged representation:
(i) In or about October 2001, Marym and Nouria had a conversation to the following effect:
(A) Nouria said to Marym, 'Move into this house, this property is permanently yours.'
(B) Marym said, 'What about the title?' Nouria said, 'Don't worry about the title right now. This is your house. Do not stress about the title. You are spending your own money that you could have used to buy your own house with but why should you when this house is available, and I am here. Changing the title will be expensive. When the time comes, I will do it.'
(ii) In or about November 2001, Marym and Nouria had a conversation to the following effect:
(A) Marym handed Nouria $600 in an envelope and said 'if the property is not going to be put in our names then we [Marym and Sultan] will buy your own property'. Nouria said 'you don't need to stress, this is your house, I don't need the money. Don't worry about these types of things, just concentrate on the renovation'.
(d) in reliance upon the representation, Marym and Sultan moved to the property, and did not purchase their own home as they had intended, and spent money, time and labour on the renovations;
(e) the funds spent on the renovations included their savings of $40,000, funds applied by Marym from her income from her wages and from Centrelink, $40,000 from the proceeds of sale of the fish and chip shop, the proceeds of sale of Marym's jewellery (about $20,000), and the ANZ loan of $15,000;
(f) the renovations were conducted with Nouria's knowledge, involvement and encouragement, referring to Nouria being identified on the building permit application as the owner-builder, and the fact that the renovation receipts were provided to Nouria at her request;
(g) Nouria knew or ought to have known that the money and labour spent by Marym and Sultan over a seven-year period would have otherwise been used to purchase a matrimonial home. Nouria's knowledge is to be inferred from the nature of the representation, Nouria's frequent visits to the property, the fact that the funds saved by Marym and Sultan for a house deposit was frequently a topic of discussion within the family, and what Marym says was said during the $600 conversation;
(h) alternatively, Nouria, by her conduct, including her acquiescence, encouraged Sultan and Marym to spend their money and labour on the property in return for them gaining absolute ownership of the property, and induced that expenditure by them in the expectation that an absolute ownership of the property would be conferred upon them, noting that Nouria frequently demanded that Sultan carry out the renovations more quickly;
(i) Marym and Sultan have not paid any money to Nouria for their occupation of the property;
(j) between 2001 and 2008, Marym and Sultan paid the rates for the property;
(k) Nouria has resiled from the representation, in circumstances where it was unconscionable for her to not make good the expectation that she had encouraged; and
(l) accordingly, Nouria is estopped from denying that Marym is the beneficial owner of the property and is entitled to become the registered proprietor of the property, and Marym seeks a declaration that Nouria holds her interest in the property on trust for Marym.
83 Further, Marym claimed, in the alternative, as follows:
Further or in the alternative, Sultan, Marym and Nouria formed a common intention that Nouria would hold her interest in the Property on trust for the benefit of Sultan and Marym ("the common intention").
The common intention was partly oral and partly to be inferred from the conduct of the parties.
In so far as it was oral, it was comprised by the Representation.
In so far as it was implied, it was to be implied from the following facts and circumstances.
(i) from Nouria's making of the Representation;
(ii) Marym has lived in the Property without the payment of any rent or occupation fee since 2001;
(iii) Marym and Sultan conducted extensive renovations to the Property with the express consent of Nouria;
(iv) in around early March 2008 in the cardiac ward at Monash Hospital Nouria said to Sultan, in the presence of Marym and Hassib, words to the effect that 'Never worry, the house belongs to your family'.
(v) on 2 April 2008, on the night of Sultan's burial, Nouria said words to the effect that 'the house is Marym's and the title will be put in Hassib's name when he turns 23';
(vi) in about June 2010, Marym said to Nouria, 'I have saved $20,000 that we can put towards the legal costs to change the title of the property'. Nouria said, 'you own this house, there is no point of wasting money on a title change. You are better off buying an investment property with the money';
(vii) Nouria had informed members of the Salehi family, including but not limited to Marym's children, that the Property was Marym's (and before his death Marym and Sultan's); and
(viii) Nouria had informed Marym's children that title would be transferred to Wais Salehi (see Outlines of Wais Salehi and Zahra Salehi).
84 Finally, in her prayer for relief, Marym claimed the following relief:
85 In her further amended defence dated 2 December 2022 ('defence'), Nouria denied that Marym was beneficially entitled to the assets of Sultan's estate, given that:
(a) Sultan's estate is not a party to this proceeding;
(b) Marym would not be the sole beneficiary of Sultan's estate if the assets of Sultan's estate exceeded $100,000;[32] and
(c) Marym lacks standing to bring this claim on behalf of Sultan's estate or any other person or entity.
86 Nouria denied making the representation, and said that during August 2001, discussions were held between her and Sultan at the Ashwood property, in her mother's presence (and in Marym's absence), where Nouria offered Sultan the opportunity to move into the property, and they agreed a rental of $1,200 per month.
87 Nouria admitted that Sultan expended time and labour in carrying out works at the property. She said that Sultan asked her to pay for all of the expenses associated with the renovations, and she gave him the money required to meet these expenses, to the extent she was aware of them, usually when he visited the Ashwood property, but occasionally at the property or via Timur or Golalai.
88 Nouria denied that the renovations were funded by Marym's income, and said further that Marym was not entitled to substantial parts of each Centrelink payment she received between 2001 and 2018.
89 Nouria denied the allegation that the renovations were conducted with her knowledge, involvement and encouragement, save that she said that she knew of significant changes to the property carried out or organised by Sultan, and that she paid or repaid all of the expenses associated with the renovations of which she was aware. She said further that she repeatedly and expressly discouraged Sultan from carrying out the renovations, because she was deeply concerned about Sultan's poor health, and the property was habitable and in a fit and proper state prior to the commencement of the renovations.
90 Nouria denied that she knew or ought to have known that the funds expended by Marym and Sultan on the renovations would have otherwise been used by them to purchase a home, or that this expenditure was made in reliance upon any promise made by her regarding the ownership of the property.
91 Nouria denied that Marym was entitled to the relief she claimed, and said further that there are no allegations in the statement of claim to support a claim to an equitable lien over the property. She says that Marym has come to Court with unclean hands by reasons of her seeking, accepting and retaining over $60,000 in rent assistance from Centrelink when she was paying no rent for the property, and when she has not paid any of the expenses associated with the ownership of the property.
92 In the amended reply dated 2 December 2022, Marym said, in summary, as follows:
(a) Marym does not bring the proceeding in her capacity as trustee of Sultan's estate;
(b) as a matter of fact, all or substantially all of Sultan's assets are or should be vested in Marym, such that the relief sought by her should be granted;
(c) Marym's rights alone are sufficient for the Court to grant the relief sought; and
(d) she denied that there was any agreement between Nouria and Sultan that he pay rent of $1,200 per month for the property, and at best, Sultan 'suggested' that he pay rent of $1,200 per month.
93 Nouria also brought a counterclaim with respect to Marym's ongoing occupation of the property. In her amended counterclaim dated 16 November 2021, Nouria stated, in summary, as follows:
(a) Nouria granted exclusive possession of the property to Sultan and his family in 2001 pursuant to an oral agreement;
(b) the agreement 'was agreed to terminate' when Hassib finished school at the end of 2018;
(c) since December 2018, Marym failed to vacate the property;
(d) Nouria has suffered loss and damage by reason of Marym's failure to vacate the property;
(e) alternatively, Marym has accepted the benefit of having exclusive possession of the property without Nouria's agreement, and without paying rent since December 2018; and
(f) accordingly, it would be unjust for Marym not to pay a fair and reasonable sum to Nouria for exclusive possession of the property since December 2018.
94 In her amended defence to counterclaim filed on 16 December 2021, Marym said, in summary, as follows:
(a) she was not privy to any rental agreement between Sultan and Nouria, the existence of which was denied;
(b) any such agreement was required to be in writing, and as such, was unenforceable by reason of ss 52 and 53 of the Property Law Act 1958 (Vic);
(c) she and her family have occupied the property;
(d) given that her three adult children have also occupied the property, the property would therefore not have been able to have been used for any other purpose, Nouria has suffered no loss and damage by reason of Marym's occupation of the property; and
(e) the mere fact of Marym's ongoing occupation of the property does not create a cause of action known to the law entitling Nouria to payment for Marym's occupation of the property.
95 At the conclusion of the trial, Nouria did not press her claim for rent based upon the alleged agreement between her and Sultan in August 2001, conceding that the evidence did not support any contention that the discussions between her and Sultan gave rise to any liability on the part of Marym to pay rent for the property from 2001.
96 Prior to the commencement of the trial, the parties agreed that the following issues arose on the pleadings in this proceeding:
97 Further, another issue emerged from the way that Marym presented her case at trial, being the contents of Nouria's tax returns ('tax return issue'). Essentially, Marym contended that the reason why Nouria did not immediately transfer the title of the property to her and Sultan in 2001 was that, given that Nouria earned a high salary, it was to her financial benefit to represent to the Australian Taxation Office ('ATO') that the property was tenanted and generating rental income, so that she could negatively gear the property, and thus reduce her taxable income. She also had the benefit of being able to use her equity in the property to secure borrowings made by her, and deduct the interest payments on those borrowings to reduce her taxable income. Marym contended that Nouria's demand that she claim rent assistance was part of this overall scheme, because then Centrelink's records would align with what Nouria was telling the ATO about the purported tenancy of the property.
98 A significant part of the trial was taken up with evidence and disputation about the tax return issue. Nouria objected to the tax return issue even being canvassed, on the basis that it was irrelevant, and the allegation that Nouria had engaged in tax fraud was not pleaded. However, as observed earlier in these reasons, Marym's allegations about the tax return issue were made in support of Marym's explanation as to why Nouria did not transfer the legal ownership of the property at or around the time Marym and her family moved to the property, despite Nouria having promised to give the property to them.
99 Accordingly, the evidence about the tax return issue does not go to the essential elements of Marym's claim for an equitable interest in the property: rather it was contended that this evidence made it more likely that Marym's evidence regarding the essential elements of her cause of action should be accepted. Further, the evidence does go to Nouria's credibility, which is important in a dispute of the current kind. Accordingly, strictly speaking, it was arguably not necessary for Marym to plead the allegations relevant to the tax return issue. However, I accept that the absence of any pleading about this issue did impede the smooth running of the trial, although it could be said that Nouria was on notice of this issue as a consequence of the correspondence between the parties in late 2022 regarding the discovery of Nouria's tax returns.
100 Accordingly, the following issues require resolution in this proceeding:
(a) whether Marym has standing to bring her claims in this proceeding, given that the representation was said to have been made to both her and Sultan ('standing issue');
(b) whether the representation said to have been made in the October 2001 conversation and evidenced by, among other things, the $600 conversation was made;
(c) whether the main reason that Nouria failed to transfer the legal ownership of the property to Marym and Sultan at the time the representation was made was owing to Nouria's desire to reduce her liability to pay tax;
(d) if the representation was made, whether Marym relied upon the representation to her detriment, by:
(i) refraining from purchasing another property with Sultan; and/or
(ii) carrying out the renovations at great cost and inconvenience ('detrimental reliance issue');
(e) whether Nouria's encouragement of the renovations induced an expectation on the part of Marym that she and Sultan would obtain the beneficial ownership of the property;
(f) whether Nouria's acquiescence in the carrying out of the renovations gave rise to equitable relief in favour of Marym on the basis that she knew that Marym and Sultan were undertaking the renovations in the (mistaken) belief that they held or would obtain an interest in the property;
(g) whether Marym is a beneficiary of a common intention constructive trust;
(h) how much the renovations cost, who paid for them, and the relevance of the findings regarding these matters to the issues enumerated in (b) to (g) above;
(i) if any of Marym's claims are established, what is the appropriate remedy; and
(j) whether Nouria is entitled to restitutionary damages from Marym for her ongoing occupation of the property after December 2018.
101 The parties relied upon comprehensive and helpful written and oral submissions regarding the issues in the proceeding. I do not propose to reproduce or refer extensively to these submissions in these reasons. The parties' positions with respect to the issues above are summarised in the following paragraphs of these reasons.
102 First, on the standing issue, Marym says that the promise made by Nouria with respect to the ownership of the property was made to her and Sultan jointly, and that as a co-beneficiary of the promise, she has standing to sue. Further, the practical reality of the situation is that all of the other potential beneficiaries of Sultan's estate, being Marym's children, support Marym's claim, as evidenced by their frequent attendance at Court during the trial, and it would have been costly, inconvenient, and contrary to the objectives of the Civil Procedure Act 2010 (Vic) to adjourn the trial in order to enable Marym to apply for letters of administration and amend her pleading to alter the capacity in which she brings her claims in this proceeding. In response, Nouria says that the failure of Marym to be appointed as Sultan's legal personal representative after his death and the fact that Sultan died intestate are not merely technical defects, but are fatal to Marym's claim that she is entitled to have the property transferred to her.
103 As for the question of whether Nouria represented to Marym and Sultan that they would obtain a proprietary interest in the property, Marym relies upon her evidence regarding the October 2001 conversation and the $600 conversation as supporting her contention that Nouria had told them that she intended to give the property to Marym and Sultan, and that she only failed to transfer the title of the property to them because it suited her financial interests to keep the property in her name. Marym says that the evidence of her children, her friends, and Mr Musleh support her claim that Nouria represented that she would transfer the property to her and Sultan, and that evidence was consistent with Nouria's public declarations to other family members. In response, Nouria says that, even if Marym's evidence regarding the October 2001 conversation is accepted (and it does not seem to be seriously disputed), then the words spoken by Nouria during the October 2001 conversation could not amount to a clear and unequivocal representation on Nouria's part that she would transfer ownership of the property to Sultan and Marym or either of them. Further, she disputes Marym's version of what was said during the $600 conversation, and denies discussing the ownership of the property with Marym's children.
104 Marym's theory as to why Nouria did not immediately transfer the property to her and Sultan is a little complicated. Marym asserted that:
(a) as at 2001, Nouria was a high income earner, paying tax at the top marginal rate;
(b) at the time, the property was Nouria's only investment property which was not negatively geared, that is, generating losses that could be deducted from her taxable income, thus reducing her liability to pay tax;
(c) by retaining the legal ownership of the property, and claiming that Marym and Sultan were her tenants, Nouria continued to be able to deduct the land tax, rates, mortgage interest and other property related expenses from her taxable income until Marym ceased receiving rent assistance in or about 2010 or 2011, and she was also able to utilise the equity in the property to secure borrowings for her own benefit;
(d) Nouria encouraged Marym to apply for rent assistance from Centrelink, and signed rent certificates every six months until about 2010 or 2011, when Marym's income from her employment increased. While this provided a financial benefit to Marym and Sultan, their receipt of rent assistance also provided evidentiary support for the claim made in Nouria's tax returns that the property was tenanted, thus enabling her to claim a tax deduction for expenses associated with the property;
(e) Nouria's evidence to the effect that the rental schedules in her original tax returns included the income and expenses associated with the Lyon apartment should be disbelieved, given that the amount of rent shown in the rental schedules in Nouria's tax returns corresponds exactly with the amount of rent reported by Marym to Centrelink, observing that if the rental income was referable to the Lyon apartment, it would almost certainly fluctuate from year to year, as it was paid to Nouria in euros; and
(f) Nouria's scheme not only provides an explanation of why it was in Nouria's interests to retain the legal ownership of the property, it is also consistent with her misreporting to the SRO that the property was her place of residence in the latter part of the last decade, and both matters undermined the credibility of Nouria's evidence regarding the substantive issues in this proceeding.
105 In response, Nouria denied encouraging Marym to apply for rent assistance, denied signing any more than one rent certificate, and maintained her position that the rental schedules with respect to the property in her tax returns between 2001 and 2012 included the income and expenses associated with the Lyon apartment, which was sold in 2012. As for the misreporting to the SRO, Nouria said that she told the SRO that the property was her place of residence because she intended to live there, but changed her mind. She agreed that sometime in 2020 she told the SRO that the property was no longer her place of residence because she was concerned that the SRO would discover that she had misrepresented the position as a consequence of the dispute between her and Marym about the ownership of the property. However, she said that the nomination of the property as her principal place of residence caused her to pay more land tax, not less, which in turn undermined Marym's contention that she manipulated her financial affairs to obtain a financial advantage from Marym's ongoing occupation of the property.
106 As for the detrimental reliance issue, Marym says that as a consequence of the representation, she and Sultan shelved their plan to use the $40,000 they had saved for a deposit to purchase a home of their own, and instead spent those funds, and further funds, upon the renovations. If they had bought their own home at that time, Marym would now have a substantial asset, probably an unencumbered home valued at about $1.5 million. Further, Sultan would have left any funds he had to Marym upon his death.
107 In response, Nouria expressed a great deal of scepticism that Marym and Sultan had saved $40,000 for a deposit, and that they would have been able to obtain a home loan, given that they were dependent upon Centrelink benefits throughout the 1990s and early 2000s.
108 As for the renovations, Marym says that, as at October or November 2001, the house on the property was in a very poor condition. In particular, the kitchen, downstairs bathroom and the laundry were very dated, and the appliances did not work. Nouria, on the other hand, said that the house was perfectly habitable. She had renewed some of the appliances and updated the bathrooms after she bought the property in 1985, and the previous tenants (a doctor and his family) had found the accommodation to be quite suitable, leaving only once they purchased their own home.
109 Marym said that she and Sultan organised and paid for the renovations from their own funds, and Sultan also put an enormous amount of unpaid labour into the renovations. She and her family lived on a building site for seven years, with all of the associated disruption and inconvenience. Marym asks, rhetorically: why would they have done this if the property was not their own home? She says Nouria told them (and others) that they were free to do what they wished to the property, as it was their home, and Nouria encouraged Sultan to complete the renovations quickly.
110 Nouria said that she was never in favour of the renovations. She did not know that Sultan had started the renovations until she heard about them from other family members, and she was upset when she heard about them. She did not consider them to be necessary, and was concerned about the impact of the disruptions and heavy labour upon Sultan's health. She had nothing to do with the preparation of the drawings or in obtaining the building permit, and was often overseas during the period in which the renovations were carried out.
111 Nouria said that she agreed to pay for the renovations because Sultan asked her to do so. Moreover, she offered to pay for a builder to expedite the completion of the renovations, again, in the interests of Sultan's health and quality of life, but Sultan was stubborn, and refused. She was unable to say how much the renovations cost, but noted that the total value of the renovation receipts was around $40,000, and that the value of the renovations referred to in the building permit application was $50,000.
112 Marym says that even if she cannot establish that Nouria made an express representation that she would give Marym and Sultan the property, Nouria's conduct in encouraging them to move to the property and to carry out the renovations at their expense induced in Marym and Sultan the reasonable expectation that they would obtain a proprietary interest in the property. Nouria agreed that she encouraged Sultan to complete the renovations quickly, but said that she did so because she did not want the family to continue to live amongst such a mess. That she urged Sultan to complete the renovations quickly did not mean that she approved of them.
113 Neither party directed their submissions to the question of whether Marym was the beneficiary of a common intention constructive trust.
114 As for the appropriate remedy, should Nouria be found to have made the representation or engaged in conduct encouraging the relevant expectation, Marym says the authorities establish that the prima facie position is that the appropriate remedy to give effect to the expectation engendered by the representation or conduct is to make good the expectation. Accordingly, Marym is entitled to a declaration that Nouria holds her interest in the property on trust for Marym, and, as the beneficiary of that trust, Marym would be entitled to have the legal ownership of the property transferred to her. Any concern that Marym has failed to come to Court with clean hands by reason of her receipt of rent assistance can be ameliorated by imposing a condition in the final orders that Marym reimburse Centrelink for any excess rent assistance payments received by her.
115 Nouria submitted that, in what she says was the unlikely event that I were to find that Marym had a prima facie claim to an interest in the property, the benefits that Marym has received from her lengthy, rent-free occupation of the property far outweigh any detriment she has suffered or any contributions she has made to the improvement of the property. Put another way, Nouria submitted that, even if every factual and legal issue in this proceeding was resolved in Marym's favour, then making a declaration to the effect that Marym is entitled to the beneficial ownership of the property would be an overwhelmingly disproportionate remedy to satisfy any equity in her favour, given the benefits she has received over the years, at a considerable cost to Nouria. Further, some of those benefits have been obtained through social security fraud, Marym having received approximately $60,000 in rent assistance, and probably family tax benefits to which she was not entitled, and as such, Marym is disentitled to any relief in equity by failing to come to Court with clean hands.
116 In the second further amended statement of claim, Marym claimed, alternatively to her claim that the property was held by Nouria on trust for her, that she was entitled to an equitable charge or lien over the property in respect of the money she spent on the renovations, and that she was entitled to equitable compensation. However, this issue was not the subject of much attention in her final submissions, with Marym relying heavily upon her primary contention that she was entitled to the transfer of the property to her. Similarly, Nouria placed great weight upon her contention that, even if all of the factual issues in this proceeding were resolved in Marym's favour, then the benefits Marym has received from her ongoing occupation of the property far outweigh any detriment to her. However, Nouria also submitted that a remedy in the form of an equitable lien is not available to Marym based upon the facts pleaded in the second amended statement of claim, and that Marym's pleading does not support any claim for equitable compensation.
117 As for the counterclaim, Nouria accepted that the evidence led at trial did not establish any liability on the part of Marym to pay rent to her for the occupation of the property. However, she contended that the authorities provide that Nouria can claim restitutionary damages for Marym's use and occupation of the property, with the quantum of appropriate compensation to be set at the market rent for the property. Marym is deemed to have admitted that the market rent payable for the property is $900 per week, as no Notice of Dispute was served in response to a Notice to Admit served by Nouria's solicitors on 29 November 2022. Nouria submitted that Marym's argument that Nouria had suffered no loss, because Marym's adult children continued to live at the property after 2018 was spurious, because Wais and Zahra gave evidence they would follow their mother wherever she went.
118 In response, Marym said that there was no cause of action known to the law which would give rise to any claim for occupation damages. In any event, no demand has been made by Nouria to the effect that Wais, Zahra and/or Hassib vacate the property, such that they cannot be characterised as trespassers. Accordingly, no loss and damage has been suffered by Nouria.
Comments upon the witnesses and other evidentiary issues
119 Counsel for Marym observed that this case largely involves the application of settled law to disputed facts. I agree. Given the importance of the fact finding exercise in this proceeding, I will commence my discussion of the evidence given by the witnesses with an overview of the legal principles relevant to the fact finding exercise. In doing so I borrow heavily from the recent survey of the authorities undertaken by Besanko J in his reasons for judgment in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) ('Roberts-Smith'),[36] a decision published while judgment in this proceeding was reserved.
120 In his reasons, his Honour considered the following matters:
(a) the onus of proof;
(b) the standard of proof;
(c) that the Court is not bound to make findings one way or another;
(d) that the material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision, and the rule in Jones v Dunkel;[37]
(e) the effect of the passage of time on the reliability of oral testimony;
(f) the use which may be made of circumstantial evidence;
(g) the relevance and reliability of the demeanour of witnesses;
(h) the relevance of character evidence; and
(i) the application of the rule in Browne v Dunn.[38]
121 Considering each of the matters above in turn, the question of onus in this case is generally quite simple: Marym bears the onus of proof on her primary claim, and Nouria bears the onus on the counterclaim. I would qualify the above by saying that, in the event that Marym is successful in establishing the elements of a proprietary estoppel, given that the prima facie remedy would be to compel Nouria to transfer the property to her, in practical terms, Nouria would bear the onus of persuading me to order a lesser remedy.
122 As for the standard of proof, s 140 of the Evidence Act 2008 (Vic) ('Evidence Act') provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
123 In relation to s 140(2) of the Evidence Act, Besanko J in Roberts-Smith[39] stated as follows:
The matters set out in subsection (2)(a), (b) and (c) are mandatory considerations. They are not exhaustive. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 (CEPU v ACCC), the Full Court of this Court said (at [30]):
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context informing an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
It is well established that other matters may be taken into account. In Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Gama) at [138], Branson J (with whom French and Jacobson JJ agreed on this issue) identified two other matters which may be taken into account. One of those matters was identified by reference to the well-known decision of Briginshaw v Briginshaw (1938] HCA 34; [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) being the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged. The other matter identified by Branson J in Gama is the common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict. The examples given by Branson J in Gama of the "other matters" which may be taken into account are not exhaustive.[40]
124 His Honour observed that s 140(2) of the Evidence Act has been treated as reflecting, at least in part, the common law, in particular, the well known statement of Dixon J in Briginshaw v Briginshaw,[41] ('Briginshaw') as follows:
Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the tribunal.[42]
125 Besanko J also referred to other statements in Briginshaw[43] to the effect that the actual persuasion is required of the facts alleged, not just a finding based upon 'a mere mechanical comparison of probabilities independently of any belief in its reality.'[44] His Honour also referred to the following statement of the plurality of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[45]
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary" where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[46]
126 Pausing for a moment here, the factual allegations confronting his Honour in Roberts-Smith,[47] a high profile defamation proceeding, were allegations of the most serious kind, being that Mr Roberts-Smith, a decorated war veteran, had committed murder and domestic violence and had engaged in war crimes. No such heinous matters are alleged in the current case, and my reference to the decision in Roberts-Smith[48] in these reasons is not to be taken as suggesting some degree of moral equivalence between the findings made by his Honour in that proceeding with the allegations made against Marym and Nouria in this proceeding.
127 That said, serious allegations have been made in this proceeding. In Marym's case, she accepts that she has received funds from Centrelink to which she was not legally entitled. However, given Nouria's evidence to the effect that she signed only one rent certificate, and the evidence in the Centrelink documents which establishes that more than one rent certificate must have been provided by Marym to Centrelink, any finding by me regarding the question of whether or not Nouria signed more than one rent certificate has the capacity to adversely affect the reputation and/or legal exposure of either or both parties, because the rent certificates are false documents. Further, while ultimately the question of whether Nouria has complied with her obligations as a taxpayer is capable of being determined by the ATO on the basis of its analysis of the tax return themselves, the allegation that Nouria had embarked upon a deliberate tax avoidance scheme over the course of a decade is very serious indeed.
128 Finally, even the primary claim this proceeding carries with it a whiff of shame. Marym will only be successful in establishing an entitlement to a transfer of the property to her based upon the representations made by Nouria to her and Sultan if she can establish that the representation was made, and that it was unconscionable for Nouria to resile from that representation. A finding of that nature amounts to a finding that Nouria had breached a promise made to her invalid brother and his family, with the consequence of the breach being that her widowed sister-in-law may be forced to leave her home of over 20 years. Further, a successful claim by Marym would lead to Nouria losing a substantial asset. The consequences for both Nouria's financial position and her standing within her family and her community are not trivial, and these matters inform the 'forensic context' within which Marym's claims in this proceeding are to be evaluated.
129 The proposition that the Court is not bound to make findings one way or another is particularly apposite to the current case. In that regard, the following extract of his Honour's reasons summarises the position:
There is no doubt that a court is not bound to accept the case of one or other of the parties. It may reject the case of both parties. In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, the High Court said (at [60]):
In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955; [1985] 2 All ER 712 (Rhesa Shipping v Edmunds) at 718.]
A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged
...
In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.[49]
130 His Honour's reasons then continue with a lengthy discussion of the applicant's submissions to the effect that the material before the Court was so limited that it did not form an appropriate basis upon which to reach a reasonable decision.
131 The factual allegations in Roberts-Smith[50] are substantially different from the allegations in this proceeding, and the matters affecting the evidence gathering process in that proceeding bear no resemblance to the evidentiary gaps in this proceeding. However, the following extract of his Honour's reasons bears repeating:
These submissions by the applicant seem to give rise to an overarching or general submission that even if the Court was persuaded by the respondents' case, the Court would not be satisfied to the relevant standard by reason of the known vacuum in the evidence before the Court.
In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (Ho v Powell), Hodgson JA (with whom Beazley JA agreed) made the following two points. First, Lord Mansfield's maxim in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, may affect the assessment of matters which are relevant to whether the limited material before the Court is an appropriate basis on which to reach a reasonable decision. Secondly, the principle in Jones v Dunkel is a particular application of Lord Mansfield's maxim. Hodgson JA said the following (at [14][16]):
There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson, "The Scales of Justice: Probability and Proof in Legal Fact-finding").
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970: "...[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; [2001] HCA 25; 179 ALR 349 at 353 [10]. [51]
132 Later in his reasons, Besanko J referred to the operation of the rule in Jones v Dunkel,[52] stating as follows (omitting citations):
The rule in Jones v Dunkel operates in circumstances in which a party is required to explain or contradict something and so will almost always have an operation where a party bears the burden of proof on a matter: ... A Jones v Dunkel inference will not always be drawn and whether it is drawn depends on weighing all of the evidence.
The conditions for the operation of the rule in Jones v Dunkel are as follows: (1) the absent witness would be expected to be called by one party rather than the other; (2) the witness' evidence would elucidate a particular matter; and (3) the witness' absence is unexplained.
A witness may be expected to be called by one party rather than the other in circumstances where he or she might be regarded as being in the camp of one party, so as to make it unrealistic for the other party to call him.[53]
133 The relevance of the discussion above to the fact finding exercise in this proceeding is as follows:
(a) the inability of Sultan to give evidence;
(b) the lack of any real explanation by any witness apart from Marym as to why the title of the property was the subject of discussion in the family no later than when Sultan died in April 2008; and
(c) the submissions made by Nouria to the effect that a Jones v Dunkel[54] inference should be drawn from Marym's failure to call certain witnesses, such as her son Hassib, or either or both of the workers.
134 As for the issue about the effect of the passage of time upon the reliability of witness' testimony, in Roberts-Smith,[55] Besanko J heard evidence in 2021 from witnesses required to give evidence about events either nine or 12 years previously. In the current proceeding, the critical conversations took place 21 years prior to the parties giving evidence, and the evidence concerned conversations between family members and events which took place between 2001 and 2017, rendering the following observations of particular relevance to the fact finding process in this proceeding (omitting citations):
In assessing that evidence, I must take into account the effect of the passage of time on human memory and the processes of memory being overlaid by perceptions or self-interest as well as conscious considerations of what should have been or could have been said. I must also bear in mind the possible effect of rumours and discussions and the capacity of the human mind for ex-post facto rationalisation of events and the phenomenon of false memories.
In Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 (Watson v Foxman) by McLelland CJ in Eq said (at 319):
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against KE Humphreys (July 1983). His Honour said (at 9-10):
"In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be· the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance - indeed, the enormity - of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place."
Justice McHugh addressed the matter again in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. This was a criminal case, but his Honour's observations about the effects of delay apply with equal force to civil proceedings. His Honour said (at 107-108):
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling....
Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.[56]
135 As for the use which may be made of circumstantial evidence, in the current case, there is direct oral testimony from the witnesses regarding what was said and what was done. To the extent that circumstantial evidence, or evidence of other facts is relevant, I have, on occasion, had regard to that evidence and in particular, evidence derived from contemporaneous documents, when evaluating the plausibility of the direct evidence relied upon by the parties, keeping in mind the following:
In a circumstantial case, all of the circumstances that are established by the evidence are to be considered and weighed in deciding whether the circumstances raise a more probable inference in favour of what is alleged (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at f134]). Spigelman CJ considered the difference between permissible inference and conjecture and the difficulties on occasion in detecting the difference between the two in Seltsam Pty Ltd v McGuiness (2000) 49 NS WLR 262 referring to Jones v Great Western Railway Co (1930) 144 LT 194 at 202 per Lord Macmillan; Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 (Carr v Baker); and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 per Lord Wright. Sir Frederick Jordan in Carr v Baker said (at 306):
The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.
I must bear in mind, of course, that in deciding what, if any, inferences should be drawn, proper regard must be had to the effect of s 140 of the Evidence Act as described above and other evidentiary principles that may be relevant in the particular circumstances such as those in Jones v Dunkel.[57]
136 As for the demeanour of witnesses, Besanko J referred to the following statement of the High Court in Fox v Percy:[58]
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.[59]
137 In the following section of these reasons, I will on occasion comment briefly upon the demeanour and presentation of individual witnesses. However, mindful of the caution above, when evaluating the evidence of particular witnesses, I have focussed upon the contemporaneous documents, the objectively established facts, the apparent logic of events, the existence and nature of corroborative evidence, and the effect of the evidence as a whole.
138 As for the relevance of character evidence, in Roberts-Smith,[60] being a defamation proceeding, the reputation and character of the applicant loomed large. As well as going to the applicant's claim for loss and damage, evidence of what was said to be the applicant's excellent reputation and character was also said to be relevant to his credibility as a witness, and to the inherent unlikelihood that he would have committed the crimes he was accused of by the newspaper defendants, namely murder and domestic violence, and other improper conduct, such as tampering with evidence and collusion with witnesses. I understand the evidence regarding Nouria's accomplishments, generosity, and her community and philanthropic activities to be relied upon for similar purposes, and I have had regard to that evidence when evaluating the likelihood that she had engaged in deliberate tax avoidance, was complicit in a scheme to fraudulently obtain Centrelink benefits, made promises to Marym and/or Sultan that she failed to keep, and gave false evidence during the trial of this proceeding.
139 However, the evidence regarding Nouria's character and reputation cannot be allowed to unduly influence the evaluation of her credibility and the effect of the evidence at the trial, or cause me to inevitably conclude that where there is a contest about the facts, I must generally conclude that Nouria's version of events is correct.
140 During the course of the trial, including during the examination of witnesses, counsel for both parties objected to certain evidence being adduced, on the basis that the evidence, which was said to have been contradicted by evidence given by earlier witnesses, had not been put to the earlier witnesses. The failure to put the contradictory evidence was said to have been a breach of the rule in Browne v Dunn. [61] Later, during the course of final submissions, it was said that the evidence of particular witnesses about certain matters should be accepted when there had been a failure to put to that witness an alternative version of events.
141 The rule in Browne v Dunn[62] is essentially a rule of procedural fairness. As stated in the well-known passage of that decision:
[...] I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit ... I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.[63]
I observed questions that half hinted at some imputation, and yet that imputation was never followed up, was never carried through, and was never put fairly and squarely to a witness so as to enable him to cope with it. Then what was sought to be done was that such answers as the witness was able to give with respect to the hinted imputation were used as the basis for an address to the jury and inviting them to draw an inference that carried the imputation. I regard such a course of cross-examination and address as unfair. It represents the sort of conduct described by Alexander Pope in the well known passage in which he condemned those who were willing to wound, and yet afraid to strike.[66]
143 While the rationale behind the rule in Browne v Dunn[67] is readily comprehensible, its application can be problematic. The need for extensive 'puttage' lengthens the duration of a trial and raises the temperature in the court room, which may outweigh the forensic benefit of the rule, particularly in circumstances where it is clear from the pleadings and the other evidence the case each party is required to establish and meet. Further, the consequences of an asserted failure to comply with the rule are not entirely clear. In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 36),[68] an application was made by the newspaper respondents during the course of the trial to exclude evidence given by a witness which contradicted the evidence of their witnesses, when that quite different version of events had not been put to their witnesses, in circumstances where it was impractical to recall those witnesses. Besanko J rejected such an extreme course of action, having some doubt of the source of his power to do so. He noted that the usual course of action would be to permit the recall of witnesses, or in the case of a jury trial, the giving of an appropriate direction.
144 Ultimately, the number of occasions during the course of the trial of this proceeding where it could be said that there had been a clear breach of the rule in Browne v Dunn[69] was relatively small. Given that there were no applications to either recall witnesses or to exclude particular evidence, it seems to me that any breaches of the rule goes to the weight to be afforded to evidence of particular conversations or events involving an earlier witness where the contrary version of events was not put to that witness.
145 Finally, inherent in a proceeding of this nature, involving alleged oral representations said to give rise to an interest in property, assessing the credibility of the witnesses, especially the main protagonists, and their evidence is a critical part of the fact finding exercise. As will be seen from the discussion in the following section of those reasons, I have some reservations about the credibility of both Marym and Nouria, and some concerns about the reliability of the evidence of other witnesses, affected as it was by the passage of time and some degree of partisanship. The following remarks of Rush J in the decision of Kalam v Kalam[70] carry some resonance:
This proceeding requires consideration of transactions and conversations extending back to June of 1982. Many records relating to those transactions no longer exist, and some witnesses involved in the alleged conversations and events are now deceased or infirm. Further, fractured family relationships appear to have coloured the recounting of relevant evidence to the Court.
...
The lack of availability of witnesses, a lack of corroborative evidence and the effluxion of time has presented me with great difficulty in resolving conflicts in the evidence. My factual analysis is developed by determining, based on a reasonable commonsense approach, what is more likely than not to have occurred, balancing concerns as to the credit of the principal witnesses.[71]
146 Turning now to the evidence of the witnesses called by the parties, these reasons commence with an extended narrative of the relevant conversations and events, spanning a period of over 30 years. The critical conversations and events largely took place in the first decade of this century, and the parties to this proceeding have been estranged and in dispute for more than five years. Almost all of the protagonists and the witnesses are related. No doubt this dispute and its potential consequences are very distressing to them. Understandably, given the nature of the dispute, the documentary record is relatively slim. Accordingly, issues of credibility and recall necessarily affect the assessment of the reliability of the evidence of each witness.
147 As can be seen from the narrative, the number of conversations and events where there is a direct conflict of evidence is relatively small, although there are clearly differences in the understandings and perspectives of different witnesses. There were no truly disinterested witnesses, although there were some witnesses who seemed less partisan than others. There was of course, a critical missing witness, being Sultan. However, as stated by counsel for Marym early in the trial, if Sultan was still alive, it would be very unlikely that these parties would be in Court. Indeed, I expect that the family would still be living at the property with Nouria's blessing.
148 I do not propose to recount in detail the evidence of each witness in turn. The narrative to which I have referred is based upon the evidence of the witnesses, and the key factual disputes have been identified. The evidence of particular witnesses will be referred to in the discussion of the issues in this proceeding later in these reasons when highlighting and resolving any conflicts in the evidence.
149 However, in the following section I will make some brief observations regarding the evidence given by each of the witnesses called by the parties and my views concerning the reliability of their evidence, along with the matters which have informed my assessment of the reliability of each of the witnesses.
150 Prior to turning to each of the individual witnesses, I would make the following overarching observations:
(a) while I accept that the evidence of the family members and friends was somewhat coloured by the interests of the party whose case they were called to support, I also accept that the non-party witnesses largely endeavoured to give truthful and honest evidence, with the exception of the evidence of the witnesses called by Nouria regarding what she said at the family gathering after Sultan's death regarding Marym and her family's ongoing occupation of the property;
(b) given the passage of time, minor lapses in recall or confusion about dates were not major factors influencing my view about the credibility of particular witnesses. By way of example, Marym's children were quite young at the time of the relevant events, and, to the extent that I accept their evidence, I can accept that they would not have necessarily appreciated the full import of what they had been told at the time. As for more mature family members, I accept that their recall of what may have been to them passing conversations not of direct personal significance may be less than perfect; and
(c) mindful of the judicial cautions about the reliability and demeanour of a witness as an indication of honesty or otherwise, and being conscious that in the case of many of the witnesses, English was not their first language, I have commented upon the demeanour of some of the witnesses. However, I have had only limited regard to the demeanour of witnesses in resolving any doubts about the credibility and reliability of any particular witness.
151 Finally, the resolution of many of the factual issues in this proceeding turns upon whether I accept the evidence of the main protagonists, Marym and Nouria. As will be seen from the discussion in the following section of these reasons, I have some reservations about the reliability of the evidence given by both parties on controversial matters, and as such, I do not conclusively prefer the evidence of one over another. Instead, I have adopted the approach referred to in the decision of Einstein J in Duic v Duic,[72] as follows:
...There are elements of truth in both party's cases but there are also significant fictions which were clearly constructed by the parties in an effort to either strengthen their respective cases or hide the true state of facts from various government authorities. In such circumstances I am forced to reject the whole of Emil and Josip's evidence and reconstruct the true state of affairs from the independent contemporaneous records with assistance from the other witnesses where appropriate.[73]
152 I preface my observations about the evidence given by Marym regarding the representations and the renovations by saying that I accept that Marym held, or at least over time came to hold, a genuine belief that she (or she and her family) had an entitlement to an interest in the property. However, as will be seen later in these reasons, I am not satisfied that genuine belief was induced by any representations made by Nouria or any conduct of Nouria.
153 Subject to one significant exception, Marym's evidence was largely consistent with the matters pleaded by her in the statement of claim. The main exception is that Marym's evidence regarding the October 2001 conversation made no reference to Nouria saying anything about the title to or the ownership of the property, as set out in the particulars in the statement of claim referred to in paragraph 82 of these reasons. However, that does not mean that the credibility of Marym's evidence is not in issue. In particular, Marym relies upon the $600 conversation, where the question of the transfer of the title was said to have been directly raised by her, to support her claim that the representation was made. There is a direct conflict of evidence between Nouria and Marym regarding this matter, such that only one of them can be telling the truth. There is also a direct conflict of evidence as to whether Nouria signed the rent certificates submitted by Marym to Centrelink, and as to who repaid the ANZ loan. There is also a dispute about who paid for the renovations, although I accept that it is possible that Marym may not have known if Nouria was giving Sultan cash to pay for the renovations, or for at least part of the cost of the renovations.
154 Accordingly, Marym's credibility is relevant to the reliability of her evidence, which is in turn of critical significance to the outcome of the proceeding, in part because of the nature of her claim (based on an alleged oral representation) and in part because the onus of proof on all critical issues rests with her.
155 Of course, if Marym has failed to tell the truth in relation to a critical conversation or a critical issue, then that detracts from the credibility and reliability of her evidence in relation to all disputed matters. Matters detracting from Marym's credibility include the following:
(a) her tendency to overexaggerate, such as her reference to living on a construction site for seven years, when the evidence shows that most of the structural work was carried out over a three year period. A further example is that she said she and Sultan paid $5,000 for a structural engineer's report to submit to the Council, while Mr Najeem, who was in a position to know, was adamant that a report of that nature would have cost less than $1,000;
(b) the lack of conformity of her evidence with her statement of claim and her outline of evidence (which were presumably drawn upon her instructions) with respect to the October 2001 conversation;
(c) the contrast between her evidence regarding her relationship with Nouria, including Nouria's generosity to her over the years, and the negative and ungracious statements she made about Nouria in her outline of evidence;
(d) the implausible evidence she gave about having spent half of their savings on renovations in the first few weeks after moving to the property, and the source of the funds she used to repay the ANZ loan;
(e) her contention in her statement of claim that the renovations continued into 2008 was demonstrably false, raising a concern that this assertion was made in order to meet an argument that she could not rely upon any representations Nouria was said to have made in early 2008 because she had suffered no detriment after that time;
(f) her tendency on occasion to avoid directly answering the questions she was asked, but rather to make speeches in support of her position;
(g) her failure to take steps to assert her claim to ownership of the property after the discussions between her and Nouria regarding the 2017 proposal, although I accept that there may be other reasons why this path was not pursued at this time, such as a lack of understanding of her legal position, and any concern she might have had that Nouria would take steps to evict her from the property (as she eventually did); and
(h) her dealings with Centrelink over the course of nearly two decades. Marym's dealings with Centrelink are relevant to the question of her credibility in two respects. First, she has admitted that she has misrepresented the position regarding her occupation of the property, and secondly, the misrepresentation itself was inconsistent with what she says is the true position, being that she is and was the rightful owner of the property.
156 In relation to Marym's dealings with Centrelink, Marym accepts she received approximately $60,000 in rent assistance between late 2001 and late 2018 to which she was not entitled. Further, the Centrelink documents show that she did not declare her ownership of three different investment properties to Centrelink, which may have also affected her entitlement to rent assistance. Marym said she did not know that she had to declare her ownership of her investment properties to Centrelink, as she left such matters to her accountant, and she had never been provided with a form to list her assets. In any event, she did not consider her investment properties to be 'assets', as they were heavily mortgaged. That evidence is rather disingenuous.
157 Marym accepts that she should not have claimed rent assistance during the period that she lived at the property, because she paid no rent during that time. She asserts that she did so under duress from Nouria, as part of the alleged scheme whereby Nouria retained the legal title to the property for the purpose of obtaining tax deductions and other financial benefits.
158 However, even if I accepted Marym's version of events in that regard, it only lessens her culpability. It does not completely exonerate her or substantially diminish the impact of her false claims for rent assistance upon her credibility. Further, while it is not clear from the evidence what impact Marym's ownership of various investment properties would have had upon her eligibility for rent assistance and other Centrelink benefits, I can assume that there may have been, given that the income statements amongst the Centrelink documents expressly refer to there being 'no assets to report', which suggests that a claimant's assets are relevant to their eligibility for rent assistance.
159 Of course, the issues associated with Marym's dealings with Centrelink do not mean that I cannot accept any uncorroborated evidence given by Marym. However, I can draw the inference that Marym is prepared to misrepresent the true position for her financial benefit, noting of course there is a difference between doing so in impersonal dealings with government departments and not telling the truth under oath while present in Court. However, these matters, along with the other matters enumerated in paragraph 155 of these reasons, and the less than perfect corroboration of her evidence by the other witnesses called by her, means that I must treat Marym's evidence on controversial issues with some degree of caution.
160 That said, my reservations about the credibility of Marym's evidence do not lead to the inevitable result that, to the extent that there are conflicts of evidence between Marym and Nouria, I must prefer Nouria's version of events.[74] As will be seen from the discussion later in these reasons, there are difficulties with the credibility of some of Nouria's evidence as well. Indeed, I have found on a number of occasions that Nouria has given untruthful evidence. However, given the burden of proof that Marym bears in this proceeding, any concerns I may have about the credibility of her evidence makes the task of upholding her claims in this proceeding more difficult.
161 It was put to Wais that his evidence concerning the conversations he had with Nouria was a complete fabrication, and that he simply regurgitated the contents of his witness outline when he gave evidence in Court. Nouria denied ever discussing matters such as property ownership or land tax with Marym's children.
162 However, I see no reason to reject Wais' evidence out of hand. While it may seem unlikely to some that senior members of a family would discuss financial matters with teenagers, every family is different. There was other evidence to the effect that the Salehi family was very business minded, cared very much about property and property ownership, and were very close, spending a lot of time together. No doubt these attitudes and interests percolate down to the next generation. Also, while Wais was only 15 years old at the time of Sultan's death, I can accept that his father's death would have, in the eyes of some family members, made him the head of the family, not Marym. Further, Wais is a blood relative of Nouria's, while Marym is not.
163 There is also evidence that during the course of the past decade or so, Nouria was becoming increasingly concerned with her land tax obligations, understandably so given that she was approaching retirement. To illustrate this, at the time of Sultan's death in 2008, she paid $4,184 in land tax for her investment properties: by 2012 this amount had almost doubled to $7,967, representing nearly a quarter of her taxable income for the 2012 tax year. By the 2017 tax year, the year she retired, she was required to pay $27,810 in land tax, more than three times the amount she was required to pay five years earlier, and, after 2012, she had received no tax benefit from her payment of land tax for the property.
164 Accordingly, I cannot accept unquestioningly Nouria's assertion that she would not discuss financial and property matters with Marym's children. After all, her own evidence was that she was prepared to appoint Zahra as a trustee of her superannuation fund when she was only 21 or 22 years of age.
165 Further, Wais' evidence about the contents of his conversations with Nouria is otherwise quite plausible. I have already referred to Nouria's concerns about land tax. While I accept that his evidence to the effect that Nouria had a sheet of paper listing her properties and the land tax payable on them at the leisure centre was odd, but it is possible that Nouria may have deliberately sought him out at the leisure centre: after all, they were both regular visitors there.
166 Further, Wais' evidence about Nouria's responses to his questions about transferring the title of the property to his mother or himself or his brother is plausible. As indicated earlier in these reasons, it is apparent that the issue of the title to the property was 'on the table', so to speak, no later than April 2008, at around the time of Sultan's death. What was not entirely clear was why that was the case: whether it was because of representations made by Nouria to Marym, representations made by Nouria to Sultan and repeated (accurately or otherwise) to Marym, what was said during the family gathering after Sultan's death, or something else. What was also not clear from Wais' (or Zahra's) evidence was the source of their belief that Nouria would or should transfer the property to their family or a member of their family.
167 Also plausible is Wais' evidence about Nouria's responses to his questions. If Nouria knew that the title to the property was an issue, as I believe she did by that time, she may have preferred to prevaricate rather than definitively say no, and her reasons have the ring of plausibility about them. First, I agree that Nouria knew that Marym was receiving rent assistance and/or other Centrelink payments, at least up until about 2010. Further, I accept that Nouria would have been very concerned about any risk that Marym might sell the property and move to Europe, if she thought that risk was material. Indeed, Wais' evidence is consistent with my view that Nouria was considering gifting the property to someone in Sultan's family, but not Marym. That evidence does not, however, conclusively prove that many years earlier she had promised Marym that she would give the property to her and Sultan, or, for that matter, that she had not done so.
168 There were some incongruities in Wais' story. While Wais gave evidence that during one conversation he asked Nouria why she had not transferred the property to his mother, this conversation was said to have followed a conversation where Nouria had told him that she had transferred the property to him. He also could not recall the venue of their last conversation about the property, which is inconsistent with his generally good recall of most matters about which he gave evidence. However, I do not place great weight on the fact that his description of the document listing Nouria's properties which she showed him did not marry up with the land tax assessment notices in evidence, as she may well have showed him a document of her own creation.
169 Finally, the nature of the evidence given by Wais about his conversations with Nouria means that, if I did not accept his evidence, it must follow that I must also conclude that his evidence was fabricated. However, one might think that if Wais had made up his evidence to support Marym's claims, his evidence would be better tailored to align with Marym's claim that Nouria had promised to give the property to her and Sultan. The fact that Wais' evidence in fact detracts from Marym's claim with respect to the character of any representation made by Nouria to her lends greater credibility to that evidence.
170 Zahra, Marym's daughter, presented as a bright, warm and genuine young woman (noting, however, my reservations about placing great weight upon the demeanour of witnesses). I largely accept her evidence regarding the conversations she had with Nouria, although I also accept that it was far more likely that she had a conversation with Nouria about becoming a trustee of Noura's private superannuation fund in 2017 (when she was 22) than in 2011 (when she was 16 and still at school). The time discrepancy is significant, and accordingly, difficult to explain, but in any event, Nouria does not dispute much of the evidence given by Zahra. Nouria simply denies speaking with Marym's children about land tax and the title to the property. However, I do not accept this denial for the reasons set out in my earlier comments regarding Wais' evidence, including, for completeness, my observations about the lack of alignment between the character of the representation said to have been made by Nouria to Marym and the evidence given by Marym's children.
171 Mr Musleh presented as a forceful person with strong opinions. He was clearly extremely fond of Sultan, and he clearly does not like Nouria, and his evidence needs to be evaluated with those matters in mind. It is not clear whether his unfavourable views of Nouria arise from the issues in this proceeding or from other unrelated matters. He gave the impression of having a good recollection of the relevant conversations and events. He came to Court pursuant to a subpoena, and he confirmed that he had not spoken to Marym's counsel prior to giving evidence. I generally accept his evidence.
172 Mr Musleh gave evidence about the following matters:
(a) he told Sultan about the MCCA and accompanied Sultan there in about 1997;
(b) when he asked Sultan why he had moved to the property when he was supposed to buy his own home, he said Sultan told him that Nouria had told Sultan that this is your house;[75]
(c) he helped Sultan with the renovations, but only after Sultan assured him that the property was his, not Nouria's. Mr Musleh said that Sultan told him that Nouria had given the property to him and Marym and the children;
(d) he questioned Sultan about the funds he spent on the renovations and asked him whether he was certain his position at the property was secure, saying words to the effect 'how do you know that she won't change her will?';
(e) he had an argument with Sultan (probably in 2006) when Sultan told him that he had spent $145,000 on the renovations. Mr Musleh said that he told Sultan that 'he could have bought a home but instead he bought his death';
(f) he gave evidence largely consistent with Marym's evidence about what was said during the family gathering at the property after Sultan's death; and
(g) he did not give any evidence at all about any conversation between Nouria and Sultan in hospital when he was said by Marym to be also present.
173 I will comment further on the evidence about what happened at the family gathering after Sultan's death later in these reasons, save to say that the evidence of Nouria's witnesses about what was said in response to his statements at the gathering (being to the effect that Mr Musleh should mind his own business, and the family would take care of Sultan's family) seems quite plausible. That said, everyone who gave evidence with respect to this conversation said that Nouria said something in response to Mr Musleh's demands, although they disagree as to what was said. In terms of the discussions he had with Sultan about the property, I accept that his memory about these discussions is likely to be quite good: these were significant matters in the life of a very dear friend.
174 Indeed, Mr Musleh's evidence about his discussions with Sultan, including the reference to Nouria's will tends to support any view that Sultan, for reasons not clearly illuminated by the evidence, truly believed that Nouria would ultimately transfer the property to his children, which is also consistent with my view that Marym's belief that she and her family have an entitlement to the property is genuine.
175 Ms Samad is a distant relative of both Marym and Nouria, but is in Marym's camp, insofar as she is a friend of Marym's. She gave evidence that in 2001 or 2002, she witnessed Nouria tell family and friends at a gathering at Ms Samad's home in Ashburton that the property would be Marym and Sultan's home for the rest of their lives, and when the children grow up, the property will be in the children's names.[76] She gave evidence that Nouria said words to a similar effect in her presence at the gathering at the property after Sultan's death. She believes the latter statement may have been made by Nouria in response to a question along the lines of 'Do you need them to move out?'.
176 Ms Samad presented as an open and honest witness. Her statement to the effect that her purpose in coming to Court was to support Marym's story does not detract to any great extent from the credibility of her evidence. Rather, I interpreted this statement to mean that she understood that in coming to Court to give evidence, she was supporting Marym, not that her evidence was tailored to support Marym's claim. Further, I repeat my earlier observations to the effect that, if Ms Samad was fabricating her evidence to support Marym's claim, then I expect that she would have ensured that her evidence better aligned with Marym's claim.
177 Accordingly, I generally accept Ms Samad's evidence.[77] It was not put to Ms Samad that her version of events was incorrect. However, given the substance of the words said to have been said by Nouria in her presence, her evidence does not particularly assist Marym's claim regarding the character of the representations said to have been made to her by Nouria.
178 Ms Shapoor is Marym's former sister-in-law, having been married to Timur until 2006.[78] She is also Marym's friend, and in the course of her evidence exhibited some degree of hostility towards Nouria and her siblings, saying that they were always interfering in her life, and that Nouria was the controlling person in the family. In that regard, it seems that Marym and Ms Shapoor share some common views.
179 Ms Shapoor gave evidence that she was present when Marym moved into the property. She witnessed Nouria telling her mother that this is Sultan and Marym's home, and telling Marym and Sultan that they could do whatever they want with the property. She gave evidence that at another family gathering at the Ashwood property after Sultan and Marym moved to the property, where a number of the Salehi siblings were present, including Sultan, Nouria said words to the effect that 'the property is theirs now, and if they want to renovate or change it, it is up to them, it's their house'. She also gave evidence that she visited the property regularly during the period during which the renovations took place, often taking food to them because of the condition of the kitchen. Sultan worked very hard on the renovations, and told her that he was doing the renovations for the children and their future.
180 Despite the fact that Ms Shapoor was clearly a partisan witness, I have no particular difficulty in accepting her evidence. Again, it was not put to her that her version of events was incorrect. However, her evidence regarding what Nouria told other family members at the time Marym and her family moved into the property does not greatly assist Marym's case. In particular, her evidence about what Sultan told her when he was working on the renovations is consistent with my view that Sultan may well have believed that Nouria would ultimately transfer the property to his children, and may have held that belief based upon his discussions with Nouria.
181 As will be seen from the discussion later in the reasons, while I have accepted Nouria's evidence about many of the critical conversations, I do not uncritically accept Nouria's evidence on all matters in dispute. There are a number of reasons for this. First, while Nouria was generally quite direct and emphatic in her evidence about most matters, and I accept that she has a very good recall of relevant matters, she was quite vague and evasive about matters which I would have expected her to have better recall about.[79] An example of this kind is Nouria's evidence about the payments she made for the renovations, which I will discuss in more detail later in these reasons, and her evidence regarding the purpose for which she borrowed $400,000 (secured by the property) in 2006.
182 Further, given that on some occasions, I have preferred the evidence of others which was expressly denied by Nouria, I necessarily have to treat all of Nouria's evidence with some caution. An example of this kind is the evidence about her discussions with Marym's children regarding land tax and the title to the property. As discussed earlier in these reasons, I found Wais' and Zahra's evidence to be credible and plausible, and have accepted that evidence, such that I must find that Nouria's denials of those conversations were false.
183 Further, there are other specific instances where Nouria's evidence was contradicted by other witnesses, or where contemporaneous documents cast real doubt on the veracity of her evidence. Examples include the extract of the Centrelink documents which shows that Marym told Centrelink that there was a delay in providing a rent certificate because the landlord was overseas, when the travel records showed that Nouria was in fact overseas at the relevant time. This casts doubt on her evidence that she signed only one rent certificate for Marym, as does the reference in her affidavit of documents to no longer having in her possession 'Marym Salehi's Centrelink application for Rent Assistance forms dated on or about 2001 and 2007', the reference to 'Centrelink application forms' in a letter from Nouria's solicitors to Marym's solicitors dated 4 November 2021 which was in evidence, and Nouria's reference to signing 'forms' under cross-examination.
184 The travel records also show that she was only overseas for a few weeks in the first part of 2005, returning at least two months before the ANZ loan was repaid, which she said was paid by her 'the day after' after she returned from Afghanistan. She said she rarely visited the property while Sultan and Marym were living there and carrying out the renovations: her brother Aref said she visited them nearly every week. Mr Najeem contradicted her evidence that the state of the property in 2001 was excellent, although I accept that reasonable minds may differ on that question. Her statement to the effect that she only discovered that Marym had received payments of rent assistance three months prior to trial was somewhat disingenuous, although I accept that there may be an innocent explanation for that evidence.
185 I also accept that Nouria has shown, on occasion, that she is prepared to misrepresent her financial affairs to the revenue authorities. There were two examples of this: first, her reporting of the property in her tax returns for about 10 years as earning rental income, when it was not, and her explanation of her rationale for doing so was less than satisfactory. Secondly, she represented to the SRO that the property was her principal place of residence in 2016, when it was not, although it is not clear that she derived much, if any financial benefit from doing so.
186 Throughout the course of the trial, Nouria gave evidence with the benefit of an interpreter. This decision was criticised by counsel for Marym, and, upon reflection, there were solid grounds for that criticism. Of course, the first interpreter created particular difficulties, which are documented elsewhere, but no blame for that can be levelled at Nouria. However, it became clear during the course of the trial that Nouria's comprehension of English is excellent, and while her speech is heavily accented, she was no more difficult to follow than some of the other witnesses, or indeed the first interpreter. I also accept that Nouria has difficulties with her hearing, and may have been put off balance by pain and fatigue caused by her orthopaedic problems as the trial progressed, and the combative manner in which the trial was conducted.
187 Finally, some of my reservations concerning Nouria's evidence stem from the pervasive feeling I have that the evidence adduced at the trial is incomplete. In particular, given that I accept that Marym's belief that she and her family have an expectation or entitlement to the property is genuine, although, as shall be seen from the discussion later in these reasons, a question mark remains over the source of that belief, and what assumptions Sultan and Marym were proceeding upon when they carried out the renovations. Further, what appears from the evidence is that the question of the title to the property was being publicly discussed no later than at the time of Sultan's death in April 2008, but Nouria has provided no explanation as to why the title was an issue at all, if the arrangement between her and Sultan was merely a tenancy agreement.
188 Of course, in our adversarial system of civil justice, no party is obliged to provide an explanation, or to adduce evidence they do not wish to adduce. Further, in this proceeding, the burden is upon Marym to establish her claim, not upon Nouria to explain why Marym might genuinely consider that she has a claim. However, the gaps in the evidence, along with Nouria's vagueness about some matters one might expect her to be quite certain about, such as the amount of money she paid for the renovations, does cause me to approach Nouria's evidence on controversial matters with some caution. That said, any concerns I have about the accuracy and reliability of Nouria's evidence does not absolve Marym of the responsibility to positively establish the material facts necessary to support her claim.
189 Hamid Najeem is Nouria and Marym's brother-in-law. He currently lives with his wife, Nouria's sister Golalai, and Nouria at Nouria's Chadstone home. When it comes to critical conversations, he either could not recall the conversations (such as the conversation initiated by Mr Musleh at the family gathering after Sultan's death), or his evidence (such as his evidence regarding Nouria's plans for the property after Sultan's death) was consistent with Nouria's evidence about her statements regarding how long Marym and the children could stay in the property after Sultan's death. I have some reservations about the truth of his evidence that he did not hear Mr Musleh speak at the family gathering, given that there was no dispute that Mr Musleh made certain demands at the family gathering,[80] and Marym was quite certain that Mr Najeem was present during this conversation.
190 Where Mr Najeem's evidence was of greatest assistance was with respect to the timing, process, and the likely cost of the renovations, and I accept that his evidence in relation to those matters was admissible and reliable. While he was not put forward as an expert witness, I accept that he was qualified by his experience in building and building design to give admissible opinion evidence regarding the likely cost of the renovations.
191 Geoffrey Westcott is Nouria's long term accountant. He prepared her tax returns and the amended tax returns. A great deal of time and effort was expended upon attempting to undermine Nouria's credibility through the evidence of Mr Westcott. These efforts were moderately successful, but ultimately, the tax returns and the amended tax returns speak for themselves on the questions of whether, first, Nouria is the kind of person who would misrepresent her financial position to the revenue authorities, and secondly, whether the tax return issue supported Marym's case theory as to why Nouria did not fulfil her promise to transfer the property to Marym and Sultan in the years after 2001.
192 Mr Westcott was a helpful and reliable witness. His explanation of the process by which the tax returns and the amended tax returns were prepared was useful, as was his insight into Nouria's involvement in and understanding of the management of her financial affairs. His expertise was also helpful in providing an understanding of what matters might be of concern to the ATO.
193 Aref Salehi is Nouria's brother, and is clearly in Nouria's camp. His evidence was supportive of Nouria's contention that she invited Sultan and his family to stay at the property because of her concerns about Sultan's health, that the state of the property at the time was perfectly fine, and that Nouria and all the other family members were opposed to Sultan undertaking the renovations. He gave evidence, contrary to Nouria's evidence, that Nouria regularly visited the property during period in which the renovations were carried out. He gave evidence that he helped Sultan with the renovations, but said he did so because it was his sister's house. He said that in or around 2002 or 2003, when he questioned Sultan about how he had obtained the money for appliances and materials, Sultan told him that Nouria had given him the money.
194 Aref did give what I consider to be a plausible account of what happened during the family gathering after Sultan's death. He said that Mr Musleh said in front of everyone that Nouria should give the property to Marym. He denied that Nouria said that she would pass the title of the property to 'them' when the youngest child, Hassib, finished university, and that it was their home. He gave evidence that his late brother-in-law, Springhar Komak, said words to the effect that 'this is not your business, it is our family's business, and you shouldn't be involved'. That to me sounds entirely plausible, given the timing, venue and context of the conversation, and the no doubt forceful and dogmatic manner in which I expect Mr Musleh would have conveyed Sultan's requests or demands.
195 Ms Komak is Nouria's sister, and is also clearly in Nouria's camp. She is also a major beneficiary of Nouria's generosity, having been recently gifted a property (a townhouse in the street in which Nouria lives) valued at $800,000. Her evidence was largely consistent with the evidence of Nouria and Aref about the renovations, saying further that she knew that Nouria made all of the payments for the renovations. She said that she saw Sultan go to Nouria's room and that Nouria would give him money, and that Nouria would sometimes leave money for Sultan to take. She said Sultan also asked she and her husband for a loan of $8,000 for the purpose of the renovations.
196 Ms Komak said that Marym was the driving force behind the renovations, because she wanted a bigger house for the children. She wanted the renovations to progress more quickly, and treated Sultan poorly. I largely accept Ms Komak's evidence about the renovations.
197 Ms Komak gave evidence that, at the memorial gathering, Mr Musleh wanted Nouria to transfer the property to Marym, but her late husband stopped him, and said words to the effect 'you are just working in a fish and chip shop, and it is not your business'. Again, this evidence is consistent with what I consider to be the most plausible version of events. Ms Komak also gave evidence that she heard Nouria saying that Marym and the children could live at the property until the youngest child finished school, and that she never heard Nouria say during this conversation that she would transfer the title of the property to Marym and her children.
198 Ms Mershedi is the niece of Nouria and Sultan, and lived with Sultan at the property for some years while she was being raised by her grandparents.[81] She also helped him out in the fish and chip shop. She considered herself to be very close to him. She said that at one stage, she was very close to Marym and one of her sisters, but in her evidence she was very critical of Marym, particularly with respect to her alleged failure to take the children to visit Sultan while he was in the hospital. She gave evidence that when she asked Sultan to stop working on the renovations (at Nouria's behest), Sultan told her that Marym would not be happy if he did so. I have no reason to doubt this evidence, I accept that Marym would have been unhappy if the renovations were stopped mid-stream.
199 Ms Mershedi gave evidence that she was not sure who owned the fish and chip shop. She believed that the proceeds of sale were about $70,000. I have no reason to question this evidence.
200 The parties relied upon an agreed court book, largely comprising of tax returns for both parties, the renovation receipts, land tax assessments issued by the SRO, the Centrelink documents, land title records, rates notices and other like documents associated with the property, sundry documents associated with the renovations, such as plans, engineering drawings, permit and compliance documents, and photographs taken at the property during the course of the renovations. A modest number of other documents, largely originals of the documents already in the court book, were tendered in evidence.
201 Also tendered into evidence was a bundle of affidavits deployed in pre-trial interlocutory disputes, largely concerning discovery. These affidavits were of limited relevance to the issues in the proceeding, but do highlight some concerns that the Centrelink documents may be incomplete. Further, they show that pre-trial preparation was hampered by funding issues between Marym and her previous solicitors, and that the discovery of her tax returns was incomplete. These affidavits also show that Nouria did not discover her tax returns until being pressed by Marym's solicitors to do so, despite their relevance to the issues in this proceeding.
202 In order to establish a proprietary interest in the property as a consequence of relying upon the representation, Marym needs to establish that:[82]
(a) Nouria made a representation to Marym that Marym would acquire an interest in the property;
(b) Marym reasonably believed that she had acquired, or would acquire in the future, an interest in the property;
(c) Nouria knew that Marym held that belief or expectation and would act (by, for example, undertaking the renovations) or abstain from acting (by, for example, foregoing the opportunity to purchase her own home) in reliance upon that belief or expectation;
(d) Marym reasonably acted to her detriment and/or changed her position in reliance upon the expectation or belief induced by the representation; and
(e) the detriment incurred by Marym is such that it would be unconscionable for Nouria to assert her legal rights against Marym by not fulfilling Marym's expectation and demanding that Marym vacate the property.
203 In Merrett v Mackay,[83] I observed, relevantly, that:
'...while it is not necessary for a representation to be as precise as a contractual promise to be enforceable [in equity] it must be clear, unequivocal, and unambiguous'.[84]
204 However, my recent review of the authorities indicates that a requirement that any actionable representation be clear, unequivocal, and unambiguous may somewhat overstate the position. In the decision of Harrison v Harrison,[85] the Court endorsed the following statement of the trial judge regarding the degree of precision required to found an estoppel:
Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promissor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.[86]
205 The trial judge also paraphrased the following statements of Dodds-Streeton JA in Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd:[87]
... from an early stage, a representation in estoppel was to be assessed by how it would be reasonably understood by the addressee in the context of the surrounding circumstances.
Equity does not shrink from ascribing meaning to a representation and mere imprecision or loose definition will not preclude a remedy for unconscionability, at which proprietary estoppel is ultimately directed.
The relevant authorities exemplify a wide variety of apparently vague, imprecise and incomplete representations which have been construed in context and given effect.[88]
Estoppel by encouragement and/or acquiescence
207 The former is derived from the decision in Dillwyn v Llewelyn,[91] and 'binds the donor of property where, after the making of an imperfect gift, the donor induces the donee to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective.'[92] The learned authors refer to the following statement of Kitto J in Olsson v Dyson[93] as providing the 'most satisfying analysis' of the principle underpinning the decision in Dillwyn v Llewelyn:[94]
'...the father's conduct amounted to a promise that if the son should build the house the land should be the son's, and that the son, by building the house, accepted the offer and so concluded a binding contract. The only signed memorandum in the case, however, was insufficient to enable the contract to be specifically enforced, and for that reason the ultimate basis of the decision must be on the footing that the land would be his, when acted upon by the son, created an equity which bound the father to make good the son's expectation. Thus in a case of this kind what gives rise to an equity which the attempted making of the gift did not by itself create is the conduct of the intending donor after the act of incomplete gift.'[95]
208 The principle in Dillwyn v Llewelyn[96] is an exception to the principle that equity will not compel the completion of an incomplete gift, an exception which arises by reason of the conduct of both the donor and the donee of the gift. Applying the above to the circumstances of the current case, then in order to establish the necessary elements of an estoppel by encouragement, Marym would need to establish that Nouria had gifted the property to her and Sultan (or represented to them that she would do so) and encouraged them to use their funds to renovate the property, such that it would be an equitable fraud to fail to complete the gift.
209 As for estoppel by acquiescence, in order to establish a right to relief, Marym does not need to establish the existence of any overt words or acts of gift, or any express representation by Nouria as to the interest Marym and Sultan had, or would have, in the property.
210 The line of authority commencing with the decision of the House of Lords in Ramsden v Dyson[97] refers to estoppel by acquiescence, which is an exception to the general principle that if one party spends money on the property of another, there is prima facie no acquisition of an interest in the property concerned. The doctrine:
... prevents a person, who has knowingly permitted another to act, through mistake, to his own detriment and to the advantage of the former, from profiting from the other's mistake.[98]
...a person improves land in the mistaken assumption that it is his own, the true owner being aware of the mistake and deliberately doing nothing to undeceive the other; in such a case a Court of Equity, so far as it can, will prevent the owner from profiting by the mistake.'[99]
212 Accordingly, the key elements of an estoppel by acquiescence are:
(a) a mistaken assumption by the claimant as to their ownership of property;
(b) the claimant carried out improvements to property on the faith of the mistaken assumption;
(c) the true owner of the property knew of the mistaken assumption;
(d) the true owner deliberately failed to correct the mistaken assumption, at least prior to or contemporaneously with the making of the relevant improvements; and
(e) the true owner profited from the improvements carried out by the claimant acting under the mistake.
213 Applying those principles to the facts of the current case, Marym would therefore need to establish:
(a) she and Sultan believed that the property was theirs or would be theirs;
(b) they carried out (and paid for) the renovations with funds they intended to use to purchase a home of their own as a consequence of that belief;
(c) Nouria knew that Marym and Sultan believed that she had given or would give the property to them;
(d) Nouria failed to disabuse them of their mistaken assumption until after the renovations were complete; and
(e) by reasserting her proprietary rights, Nouria has profited from the mistaken assumption of Sultan and Marym by taking the benefit of the renovations.
214 The purpose of the doctrines of proprietary estoppel by encouragement or acquiescence is not to perfect imperfect gifts, but to prevent the owner of a property from taking unconscientious advantage of the mistaken assumptions of others. Given the emphasis upon preventing a property owner from profiting from the expenditure made by others on improvements to their property on the mistaken assumption that the property is theirs, one might expect that the proper remedy would be the disgorgement of any profits made by the person who induces or acquiesces in the expenditure. However, as will be discussed in more detail later in these reasons, the prima facie remedy in cases of proprietary estoppel of any kind is the fulfilment of the expectation induced by the estopped party's words or conduct.
215 In Merrett v Mackay,[100] I observed that '... a common intention constructive trust arises out of the actual intention of the parties, that is, the intention which a reasonable objective by-stander would ascertain from the words and conduct of the parties.'[101] Matters relevant to ascertaining and giving effect to the requisite common intention include the following:
(a) a common intention constructive trust may arise after the relevant property has been acquired;[102]
(b) the inquiry is focussed upon the actual intention of the parties, not what a court might consider to be what fair and reasonable people in the position of the parties would have intended had they turned their minds to the issue;[103]
(c) the intention may be established by agreement between the parties, or express statements by the parties, or inferred from their conduct, including the making of direct and indirect financial contributions to the acquisition of property. In the case of the latter, the inquiry is broader than what might be required to establish the existence of a resulting trust;[104]
(d) the commercial or other context and the subject matter of the communications are relevant;[105]
(e) communications subsequent to the relevant transaction are relevant, to the extent that those communications shed light upon the meaning of the contemporaneous communications;[106]
(f) the lack of any objective record to corroborate the relevant communications is not necessarily fatal to establishing the existence of a common intention constructive trust;[107]
(g) declarations of the parties before, at the time of, or shortly after the relevant transaction may be evidence of the requisite intention;[108]
(h) a claimant for a constructive trust must establish detrimental reliance referrable to the asserted agreement or common intention;[109]
(i) it has been said that the conduct said to amount to detrimental reliance 'must be such that the plaintiff could not reasonably have been expected to embark upon it unless she were to have an interest in the property';[110]
(j) the size, nature and extent of the beneficial interest in the property will be that which the parties agreed or intended;[111] and
(k) if it is not possible to establish the precise nature or value of the interest, the presumption is one of equality, save where there is evidence of disproportionate contributions to the acquisition of the property.[112]
216 Marym is correct to say that in cases where a party has established a claim for an equitable interest in land based upon an estoppel by representation or conduct, the prima facie remedy is to give effect to the expectation engendered by the representation or conduct.[113] However, the position may be different if the detriment established by the claimant is modest and/or readily quantifiable, or where third party interests would be affected by an order for conveyance of the property concerned, or where giving effect to the representation would be completely disproportionate to the claimant's outlay in reliance upon the expectation induced by the representation or conduct.[114]
217 Nouria relied upon a number of authorities to support her contention that, even if Marym was to overcome all of the hurdles before her in establishing that Nouria had made an actionable representation, or had engaged in actionable conduct, she ought not be entitled to any relief, because the benefits she had gained from her occupation of the property far outweighed any contributions she made towards the improvements to the property. Those benefits are discussed in further detail later in these reasons.
218 Nouria's submissions referred to the decision in the New South Wales Court of Appeal in Milling v Hardie,[115] a proceeding involving an estoppel by encouragement. I consider that the following summary of the relevant principles are equally applicable to estoppel by acquiescence (omitting citations):
(1) "A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation".... In a Ramsden v Dyson type of case such as the present, particular attention needs to be given to determining whether the plaintiff's expectation was reasonably capable of being derived from the defendant's conduct. If it was, the corollary will be that the defendant should have realised that his or her conduct could lead to that expectation being formed.
(2) To determine whether equitable intervention is required, the court needs to consider whether circumstances have arisen which would render it unconscionable for the defendant to depart from a promise or representation that he or she has made or to disappoint an expectation that has arisen reasonably from the defendant's conduct. The court thus looks backwards rather than forwards... The court may therefore take account of a supervening circumstance, such as a defendant's unexpected financial reverse, which might justify departure from a promise that has given rise to a proprietary estoppel. On the other hand, in a contract action supervening events would not relieve the defendant of contractual obligations unless those events were catered for in the express or implied terms of the contract or amounted to frustration of the contract.
(3) It follows from these principles that when a proprietary estoppel is sought to be enforced, the court may consider the extent to which the plaintiff's equity has been diminished by time... Thus, whilst a plaintiff's effecting of improvements in reliance upon a defendant's conduct may be of considerable significance soon after the improvements are made, the passage of time before the estoppel is sought to be enforced may indicate that the plaintiff has had the full benefit of those improvements and that they have effectively been amortised...
(4) The court must look at all the circumstances of the case to determine in what way the plaintiff's equity may be satisfied ... This requires consideration of practical matters such as the impact of the court's orders on third parties... Nevertheless, the court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged...but relief should not be "out of all proportion to the detriment" suffered by the plaintiff...[116]
219 In Milling v Hardie,[117] Macfarlan JA referred to decisions of the New South Wales Court of Appeal in Duic v Duic[118] and Delaforce v Simpson-Cook.[119] In the latter decision, Handley AJA referred to the decision of the High Court in Giumelli v Giumelli,[120] where the Court rejected the proposition that the appropriate remedy in a case of proprietary estoppel was limited to reversing the detriment incurred, or the 'minimum equity' required to do justice to the parties, stating that:
The prima facie entitlement [to have the expectation made good] ...would be qualified if that relief would "exceed what could be justified by the requirements of the conscientious conduct and would be unjust to the estopped party".[121]
220 Handley AJA also referred to the decision of Jennings v Rice[122] where Robert Walker LJ said as follows:
...there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract... In such a case, the court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or a lot of all proportion to the detriment that the claimant has suffered, the court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way.[123]
221 His Honour went on to refer to the decision of the House of Lords in Thorner v Major,[124] where it was said that:
...equitable estoppel [by contrast with contract]... does not look forward into the future [it] looks backwards from the moment the promise falls due to he performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.[125]
222 A statement to similar effect was made in Evans v Evans,[126] where the Court stated:
The relevant time for consideration is the time when the defendant seeks to disappoint [the] ...expectation.[127]
Cases of proprietary estoppel differ from equitable estoppel in that the remedy in cases of proprietary estoppel is founded in the understanding of the parties and the expectation that has been encouraged. By contrast, equitable estoppel is concerned with what needs to be done in order to avoid detriment to the party who has relied on the assumption induced by the party estoppped.[131]
224 Garde AJA then went onto summarise the relevant principles as follows:
(a) A proprietary estoppel may be established where the conduct of the party estopped did not define the expectation;
(b) The quality of the assurances which give rise to the claimant's expectations is an important factor and may influence the issue of reliance which is often intertwined with detriment;
(c) The court must look at the circumstances in each case to decide in what way the equity can be satisfied;
(d) There is no requirement that the court frame the relief to enforce the minimum equity to do justice to the plaintiff - rather prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation that he or she has encouraged;
(e) Where the plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the plaintiff's equity may be better satisfied in another and possibly more limited way;
(f) Relief may be moulded to meet practical considerations, and take into account the impact of its orders on third parties and any hardship or injustice they may suffer;
(g) Relief may be limited if the plaintiff's expectation would be out of all proportion to the detriment; and
(h) The court should prime facie enforce a reasonable expectation which the party bound created or encouraged.[132]
225 In her final submissions, Nouria relied heavily on the decision of the English Court of Appeal in Sledmore v Dalby,[133] where the facts and circumstances were said to be substantially similar to the current case. In Sledmore v Dalby,[134] the registered proprietor of a residential property sought to recover possession of the property from her son-in-law, who had lived in the property for some 20 years rent free, and had, during the early stages of his occupancy, carried out certain improvements to the property. It was accepted that the appellant and her late husband had led the respondent and his late wife (the appellant's daughter) to expect that they and their family could occupy the property indefinitely. The appellant was now in difficult financial circumstances, the respondent did not occupy the property full-time, and the children were now adults.
226 The Court of Appeal overturned the decision below to award the respondent a 'non-assignable, non-transmissible personal licence to occupy the house so long as he wishes',[135] stating that the judge below failed to:
...ask himself the question whether it was still inequitable to allow the respondent's expectation to be defeated by permitting the appellant to enforce her legal rights, as owner of the property.[136]
227 Roch LJ answered the question above in the negative, stating as follows:
The conclusion that I have reached is that it is no longer inequitable to allow the expectation created in the respondent's mind by Mr Sledmore's oral statements and by his encouragement of the respondent to carry out the improvements to the house which were carried out between 1976 and 1979 to be defeated. The respondent has lived rent free in this accommodation for over 18 years.
During that time the insurance of the property has been paid for by the Sledmore family and the property has been reroofed at their expense. The use made by the respondent of the house at the time of the trial was minimal and it is clear that there was accommodation for him elsewhere. He is a man in employment and therefore capable of paying for his accommodation. Whilst the respondent has lived in this house his elder daughter has married and left home and his younger daughter has reached the age of 27 and is able to maintain herself.
On the other hand, the evidence indicates that the appellant is vulnerable in that she is liable to lose her present accommodation and that she has a pressing need for this house which is her property.[137]
228 Further, in reaching the same conclusion, Hobhouse LJ stated as follows:
...Therefore there is no assumption in the relevant sense which was ever falsified. The assumption upon which the Defendant was entitled to say that he incurred the expenditure was in fact fulfilled.
The other aspect clearly illustrated by the quotations which I have made from Mason CJ is the need for proportionality. This is to say little more than that the end result must be a just one having regard to the assumptions made by the party asserting the estoppel and the detriment which he has experienced. Here it is unreal to suggest that the conclusion of the County Court Judge is proportionate to what happened over 15 years earlier. Similarly, it is unreal to say that the Defendant has suffered any injustice. He expended money in 1976 to 1978 upon his then family home and he and his family fully enjoyed the benefits of such expenditure. he has also enjoyed within the same framework over a period of over 15 years the rent-free occupation of the property. By the same token it cannot be property said that there was anything unconscionable in Mrs Sledmore seeking the possession of number 15A in 1990.
In my judgment there is no estoppel operating against the Plaintiff. Her claim in this action falsifies no legitimate assumption or expectation. The effect of any equity that may at any earlier time have existed has long since been exhausted and no injustice has been done to the Defendant.[138]
229 The decision in Sledmore v Dalby[139] has been referred to with apparent approval in a number of Australian decisions.[140] However, I do not see that decision as standing for the principle that, when determining an appropriate remedy in cases where the words or conduct of one party has given rise to an expectation of another as to an interest in property, the rent-free occupation of the property by the party labouring under the expectation must necessarily be taken into account.[141] Rather, this decision represents an orthodox application of the principle that the question before the Court is what remedy is necessary to alleviate the unconscionable conduct of the estopped party, and in doing so, the Court has the benefit of hindsight when evaluating whether to make good the relevant expectation or to award some lesser remedy, and in some cases, grant no relief at all.
230 In the counterclaim, Nouria seeks to be returned to the position she would have been in but for Marym refusing to vacate the property in late 2018. Nouria relied upon the decision of the Court of Appeal in Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd ('Ovidio').[142] In that decision, VCAT had made an order requiring a landlord to repay a tenant sums paid by the tenant to it as rent by way of restitution, in circumstances where the failure of the landlord to comply with the disclosure requirements in the Retail Tenancies Reform Act 1998 (Vic) meant that the tenant had no liability to pay rent pursuant to the lease agreement between it and the landlord. The tenant remained in occupation of the property, and operated its business from the property.
231 Chernov JA summarised the landlord's arguments as follows:
... the landlord argued that, even if paragraph (b) operated independently of paragraph (a), it was nevertheless entitled to retain the money because it had given good consideration for the payment, consisting of the provision to the tenant of exclusive use and occupation of the premises. Moreover, it was said for the landlord, it had a good claim against the tenant for use and occupation of the premises in an amount equal to the rent and that, too, was a good defence to the tenant's restitutionary claim.[143]
232 The Court accepted that the landlord had a good defence to the tenant's restitutionary claim, on the basis that, given that the tenant had the benefit of the occupation of the premises, the landlord had provided valuable consideration.
The second, and additional, reason for my conclusion that it would not be unjust for the landlord to retain the money notwithstanding that it was paid under mistake is that I consider that the landlord has a sound claim against the tenant for use and occupation of the premises for the relevant period, in an amount broadly equal to the rent reserved under the lease. As is explained in Woodfall's Laws of Landlord and Tenant, a restitutionary claim based on use and occupation arises where the respondent has been given permission by the claimant to occupy its land without there being any binding term as to payment. The essential elements of this cause of action were described in Australia Provincial Assurance Association Ltd v. Rogers and Zegir v. Woop, in slightly different terms, namely, the existence of an agreement between the parties - express or implied - to the effect that the occupant/respondent will be the tenant of the claimant and shall pay for the occupation. In my view, there is no difference of substance between those tests. In any event, I think that each is made out in the present case, given the existence of the lease and lack of any suggestion by the tenant that there was an agreement that it was to occupy the premises rent free... And, as has been recognised in Pavey, the landlord could establish the amount of compensation to which it was entitled for use and occupation by relying on the rental provisions in the lease as evidence of what was fair and reasonable in that regard.[144]
234 Nettle JA agreed that the landlord had a good defence to the tenant's restitutionary claim given that the tenant had the benefit of the use and occupation of the land. His Honour then went on to consider the authorities regarding a lessor's right to recover or retain compensation for the tenant's use and occupation for the premises in circumstances where the obligation to pay rent under a lease was unenforceable, saying that the matter before the Court was 'the sort of situation in which the restitutionary principles essayed in Pavey & Matthews Pty Ltd v Paul[145] may apply'.[146]
235 Nettle JA went on to consider a number of Australian and English authorities which held that 'at common law an action for use and occupation of land did not lie unless the plaintiff were able to provide the existence of an agreement, express or implied, between him and the defendant to the effect that the latter be at least the tenant at will of the former of the lands or premises occupied and shall pay for that occupation.'[147]
236 Nettle JA held that the landlord's entitlement to sue for 'counter restitution' was a complete answer to the tenant's action for money had and received, stating that:
Logic implies that similar considerations should govern a lessor's claim to recover restitution arising from a tenant's acceptance of the benefits of occupation of demised premises under an unenforceable lease. The lease shows that the benefits of occupation were not intended as a gift, and the claim to recover reasonable compensation for use and occupation is to be characterised as a claim dehors the contract.[148]
237 Nettle JA considered that this logic operated to overcome what he described as the 'complication' caused by the decision of Lane J in Morris v Tarrant,[149] where it was held that:
...there is no sufficient precedent for holding that the plaintiff should recover from the defendant in this case under the doctrine of unjust enrichment simpliciter, albeit, as Mr. Goodenday pointed out, the defendant was enriched by his free occupation of the property, both as a dwelling-house and as an office inasmuch as he enjoyed the capital or the interest thereon which he would otherwise have required to use for the provision of alternative accommodation. It seems to me that it would be undesirable and would lead to uncertainty of the law if the doctrine of unjust enrichment were arbitrarily extended, at any rate where an alternative remedy was available to the plaintiff, as it is in this case [mesne profits for trespass to land].[150]
238 As far as the measure of damages payable pursuant to the landlord's counter-restitutionary claim, Nettle JA concluded as follows:
Since the only evidence of the amount of a reasonable satisfaction for the use and occupation of the demised premises is the lease itself, I see no reasons why the amount to be allowed for use and occupation should not be equal to the rent. It has not been suggested that it is more than a reasonable amount. It follows in my judgment that the tenant's claim to recover the rent it paid should have been held to fail.[151]
239 The decision of the Court of Appeal in Ovidio[152] has been followed and applied by Osborn J in R&C Mazzei Nominees Pty Ltd v Aegean Food Import Export Pty Ltd[153] and in a number of decisions of VCAT. It has been referred to with apparent approval by the Queensland Court of Appeal in Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd[154] and Redland City Council v Kozik.[155] It was referred to in the decision of a single judge of the Supreme Court of Western Australia in Broadway Pty Ltd v Lewis[156] in support of the proposition that:
The essential element of a cause of action for use and occupation is the existence of an agreement between the parties, whether express or implied, to the effect that the defendant will be the tenant of the plaintiff and shall pay for the occupation. If there is no tenancy, no action for use and occupation will lie.[157]
240 The question before her Honour in Broadway Pty Ltd v Lewis[158] was whether the occupant of the property was a tenant or a trespasser, in circumstances where the procedural rules governing actions for ejectment did not permit a landowner to bring a claim for mesne profits in the same proceeding as an action for ejectment. Relevantly for present purposes, in that case, Pritchard J found that if the defendant was a tenant at will or sufferance (which he was not, he was a trespasser) the appropriate measure of damages would have been the market rent achievable for the property.
241 The question of whether a person in the position of Nouria has a claim for restitutionary damages for Marym's use and occupation of the property was recently considered by Jackson J of the Supreme Court of Queensland in Harro Group Pty Ltd v Aspire Pty Ltd[159] where his Honour said:
In my view, the weakness of the plaintiff's argument on this point is better identified by recalling that historically at common law there was a common money count in an action either in debt or indebitatus assumpsit by a landlord against a tenant for payment for use and occupation by the tenant of premises with the agreement of the landlord, including cases where no rent had been agreed for the use and occupation. Neither of the parties referred to this form or cause of action. ... But, for present purposes, the existence of the action tends to negate the broad submission of the defendants that there can be no restitutionary cause of action in respect of a non-money benefit provided by way of use and occupation of premises by a tenant from a landlord.[160]
242 The authorities provide that the agreement founding any restitutionary claim may be express or implied. It seems that the bar for implying the necessary agreement is not particularly high. In the Australian Provincial Assurance Association Ltd v Rogers,[161] Jordan CJ stated as follows (omitting citations):
In order to recover the ordinary action for use and occupation, the plaintiff must prove the existence of an agreement, express or implied, between him and the defendant, to the effect that the latter shall at least be the tenant at will of the former of the lands or premises occupied, and shall pay for the occupation: Attorney-General v De Keyser's Royal Hotel Limited. 'Where nothing appear except that one person is entitled to land which another has occupied and enjoyed, an action for use and occupation may be maintained, because a contract may be implied: Churchward v Ford. But the circumstances may negative the implication of a contract to pay for the occupation, as where the occupier is a purchaser who has been let into possession pending completion" Howard v Shaw. It will be observed that the plaintiff may rely upon the existence of an agreement, express or implied, to occupy, and to pay for the occupation.[162]
243 Accordingly, what can be gleaned from the authorities is that:
(a) there is no barrier in principle to a landowner recovering restitutionary damages for the use and occupation of land;
(b) an express or implied agreement is required for the occupation of the property in question before a landowner can recover restitutionary damages (as opposed to mesne profits);
(c) given that any agreement may be express or implied it is arguable that all that the landowner is required to establish is that the occupier entered into occupation with the landowner's permission or consent and upon the understanding they were obliged to pay something for the occupation of the property; and
(d) what is the appropriate measure of damage will be informed by the terms of any agreement found to have been made, but may, in appropriate circumstances, be equivalent to the market rent for the property.
244 Accordingly, the issues required to be addressed in the determination of the counterclaim include the following:
(a) whether Marym entered into possession of the property in accordance with an express or implied agreement between her and Nouria;
(b) if yes to (a), what were the terms of that agreement;
(c) whether the statements said to have been made by Nouria before and after Sultan's death amounted to a variation of any agreement, and if so, the terms and effect of that variation; and
(d) if Nouria is entitled to restitutionary damages for Marym's use and occupation of the property, the proper measure of those damages, including the duration of any period in which Marym is required to pay damages, and the appropriate rate of 'rent' to be struck.
245 The standing issue is more significant than contended for by Marym, in that it is not a mere technical defect capable of being cured by a robust common sense approach to case management. However, in my view, the standing issue is not fatal to Marym's claim.
246 As I understand it, Marym's pleading that she would have been the beneficiary of Sultan's assets is put forward in order to support Marym's claim that she relied upon the representation to her detriment, and is not put forward in order to advance a claim on behalf of Sultan's estate. Because Sultan expended his time and money on the renovations, the family's resources were diminished, such that, at his death, any cash that Sultan may have had (such as the proceeds of sale of the fish and chip shop) had been exhausted by the cost of the renovations, so that she was left with nothing after his death. In any event, Marym says that, as the co-beneficiary of Nouria's promise, Marym has standing to sue in her own right.
247 I accept that, if it is established that Nouria made the representation (or otherwise induced an expectation on the part of Marym and Sultan that they would have an interest in the property) then a Court exercising its equitable jurisdiction is unlikely to deny relief on the grounds that Marym has not sued on behalf of Sultan's estate as well as on her own behalf. However, the standing issue is relevant to the nature and extent of any relief available to Marym should she succeed in establishing an equitable interest in the property.
248 Marym did not plead that the representation was to the effect that Nouria would transfer the property to her and Sultan as joint tenants, or that the necessary consequence of the representation was that if Nouria had made good her promise to Marym and Sultan prior to Sultan's death, the property would be owned by Sultan and Marym as joint tenants. If that were the case, then Marym would be entitled to Sultan's interest in the property upon his death by reason of survivorship, such that any claim by Sultan to an interest in the property would not be an asset of his estate.
249 Further, neither party specifically addressed the question of whether, if a successful claim had been brought in relation to the beneficial ownership of the property by both Marym and Sultan (either while Sultan was alive, or by Sultan's legal personal representative after his death), and they had established that they were entitled to the transfer of the legal title of the property to them, whether an order would be made for a transfer to them as joint tenants or tenants in common.
250 There is a common law presumption that co-owners of real property own the property as joint tenants, while equity presumes they hold their interests as tenants in common in shares reflecting their contributions.[163] However, the latter presumption tends to arise for consideration in circumstances where there is a dispute between co-owners, not between the co-owners and a third party in the position of Nouria. It seems to me that it is at least arguable that the necessary elements of a joint tenancy are present in the current circumstances, being unity of possession, unity of interest, unity of title, and unity of time.[164] Further, given that Marym contends that she and Sultan would have been entitled to a conveyance of the title to the property to them while Sultan was still alive, it is arguable that Marym would be able to rely upon the deeming provision in the Transfer of Land Act 1958 (Vic), where s 30(2) provides that:
Two or more persons who are registered as joint proprietors of land shall be deemed to be entitled thereto as joint tenants...
251 But I have not been taken to any evidence or authority to support the making of a positive finding that Sultan and Marym should be found to have held their interests in the property as joint tenants, and arguably, the deeming provision in the Transfer of Land Act 1958 (Vic) only applies to registered proprietors, not to those where the entitlement arises from equity, rather than registration.
252 Accordingly, taking an already somewhat artificial analysis even further, it seems to me that in order to establish an entitlement to an interest in the whole of the property, Marym must have been able to successfully argue that, had she and Sultan brought a claim against Nouria claiming an entitlement to the property while Sultan was alive (which all consider would have been highly unlikely), and were wholly successful in that claim, they would have held the property as joint tenants, either by reason of the terms of any court order, or by agreement, such that Marym would have been entitled to the property by way of survivorship after his death. If that could be established, then the question of whether Marym has standing to bring any claim on behalf of Sultan's estate becomes irrelevant, as Sultan's interest in the property would not have been an asset of his estate.
253 There is some authority for the proposition that Sultan and Marym would have held their interests in the property as joint tenants. In Delehunt v Carmody,[165] the High Court considered the question of whether the registered proprietor of a property and a party entitled to an interest in the property pursuant to a resulting trust held their interest as tenants in common or joint tenants. The High Court upheld the decision of the New South Wales Court of Appeal to the effect that s 26 of the Conveyancing Act 1919 (NSW)[166] removed the basis of the presumption made in equity that if two people advance the purchase money in equal shares they intend to be joint tenants of the land purchased.
254 The Court held that, as equity follows the law, the parties held their interests as tenants in common, stating as follows:
There seems to be no authority which decides the precise question whether, when a resulting trust was raised in favour of purchasers who had contributed to the price in equal shares, the beneficial interest of the purchasers would have been that of joint tenants or of tenants in common. However, it would seem to follow, by analogy with the case where a conveyance is made to all the contributors, that (apart from the effect of s.26 of the Conveyancing Act) they would be equitable joint tenants, and this conclusion is accepted as correct in Hanbury and Maudsley, Modern Equity, 12th ed. (1985), at p.254 and Ford and Lee, Principles of the Law of Trusts (1983), at p.966. It would further seem to accord with principle that if there were an express trust in favour of A and B who had contributed equally to the purchase price of the property the subject of the trust, equity, again following the law, would have held (before the amendment effected by s.26) that A and B took beneficially as joint tenants. In either case slight circumstances would have been enough to indicate that it was intended that there should not be a joint tenancy. Equity had a dislike for joint tenancies, because their effect was to make the ultimate ownership of the property depend on the chance of survivorship, and, in the words of Snell's Principles of Equity, 28th ed. (1982), at p.37: "There is here no equality except, perhaps, an equality of chance."
It would be indeed surprising if the rules of equity required the courts to follow a rule of the common law that no longer existed and in doing so to reach a result which equity generally tried to avoid. However the doctrines of equity are not so inflexible. If equity follows the law, it will follow the rules of law in their current state. Where, as a result of following the law, a beneficial joint tenancy would formerly have been created, now a beneficial tenancy in common will (in New South Wales) come into existence. In other words, although s.26 of the Conveyancing Act has no direct application to the present case, its indirect effect is to require it to be held that there was a resulting trust for the purchasers in an interest of the same kind as that which would have resulted if the land had been conveyed to them at law, i.e. as tenants in common.[167]
255 However, as noted above, the question of whether Marym and Sultan would have held their interests in the property as joint tenants or tenants in common has not been the subject of evidence or argument, despite the standing issue being clearly raised in the pleadings and by Nouria's submissions. Given the absence of any attention to this issue, it seems to me that if Marym is successful in establishing an entitlement to equitable relief, then in the absence of any evidence to rebut the presumption, I should apply the equitable presumption that co-owners hold their interests as tenants in common in equal shares. There is some evidence to suggest that Sultan made a greater financial contribution to the renovations than Marym, given that the proceeds of the sale of the fish and chip shop went towards funding the renovations. The practical consequences of that presumption is that, as at the time of Sultan's death, Marym's potential interest in the property may well have been limited to a half-share of the property, plus her entitlements under the intestacy provisions of the Administration and Probate Act 1958 (Vic) at the time, being $100,000 (plus interest) and one third of the balance of the estate, with the children to share the remaining two thirds of the balance of the estate.
256 Accordingly, I do not accept that the claims of the children as beneficiaries of Sultan's estate can be disregarded. I accept that Marym's children are supportive of Marym's claim in this proceeding, and they themselves have made no claim. However, I cannot be satisfied that they have received independent legal advice regarding the value and prospects of any claims they might have, and, setting aside the question of the prospects of success of any such claims, the value of their potential claims is not insignificant, given the value of the property. Accordingly, while the standing issue does not preclude Marym from bringing her claims in this proceeding, it does affect the remedy available to Marym should any of her claims be successful. In particular, I consider that the primary remedy sought by Marym, being a declaration that Nouria holds the whole of the property on trust for her, would not be available by reason of the standing issue alone.
257 The critical issue in this proceeding is whether Nouria, either by her words or her conduct, knowingly induced in Marym the belief that she (or she and Sultan) would obtain a beneficial interest in the property, and that she reasonably relied upon those words or conduct to her detriment.
258 Turning first to the question of whether Nouria made the representation, Marym relies upon both the October 2021 conversation and the $600 conversation.
259 While there is a dispute on the pleadings as to what was said during the October 2001 conversation, there ultimately was no real dispute on the evidence. I agree with the submissions of Nouria to the effect that, accepting that Marym's evidence as to what was said during the October 2001 conversation is correct, then the words said to have been spoken by Nouria cannot be characterised as a representation that Nouria would pass the beneficial ownership of the property to Marym and Sultan. The words spoken by Nouria are as consistent with the family occupying the property as tenants or licensees under a formal or informal family arrangement as with Marym and Sultan obtaining ownership of the property. The statement to the effect that 'this is your house' is ambiguous, in that it could be interpreted as no more than a statement of welcome, as opposed to expressing an intention to make a gift of property.
260 It is correct to say that, during the October 2001 conversation, Nouria was attempting to persuade Marym to move into the property.
261 However, the context in which this conversation took place, and the reasons advanced by Nouria as to why Marym and the children should move to the property are important. First, the context. Marym said that, at the time the October 2001 conversation took place, she had planned to remain in the Armadale apartment with the children while Sultan stayed at the property and carried out some (as yet unspecified) renovations. Perhaps no one at the time had contemplated how extensive those renovations would ultimately be. Accordingly, the focus of the conversation seemed to be when Marym and the children would move to the property, not whether the family would move there at all.
262 Secondly, the evidence shows that Nouria's arguments as to why Marym should move to the property all related to the attributes of the property and the benefits of living there, such as the size of the property, Sultan's presence at the property and that there was a backyard and a park nearby, not the ownership or prospective ownership of the property. Nouria's statement to the effect that Marym shouldn't waste her money on rent does not go any further than state the obvious: why should the family continue to pay rent for the Armadale apartment when they had immediate access to the property, rent free or otherwise? The evidence given by Marym regarding the October 2001 conversation made no reference to Nouria telling her that 'this property is permanently yours', or any reference to the title of the property, despite what I agree were valiant efforts by her counsel to elicit that evidence.
263 Even if the standard of clarity required for a representation to be actionable falls short of requiring that the representation be 'clear, unambiguous, and unequivocal', Marym's evidence regarding what Nouria told her in the October 2001 conversation fell well short of even a less exacting standard. On the basis of Marym's evidence at trial, no mention was made about the ownership of the property at all.
264 Marym's evidence fell well short of what was pleaded in the particulars to the allegation that the representation was made. I agree that, given that Marym's evidence did not support the allegations made in her pleading, it was not necessary for Nouria's counsel to put to Marym that she was not telling the truth about the version of the October 2001 conversation contained in the particulars. Essentially, Nouria does not dispute the version of the October 2001 conversation which emerged from Marym's evidence.
265 The absence of any evidence to the effect that Nouria told Marym that the property was 'permanently yours', or that they had a discussion about the title to the property, or there being no need for Marym and Sultan to spend their own money to buy a house has a cascading effect upon Marym's claims in this proceeding, and the credibility of her claims in this proceeding.
266 To explain further, the starting point is that it is inherently more unlikely than not that Nouria would make an irrevocable gift of a reasonably valuable property to Marym and Sultan in 2001 or, for that matter at any time.[168] Of course, it is not impossible that she would do so, given her renowned generosity and her close relationship with Sultan, and given that Nouria has made gifts of property to other family members. She bought out her siblings' interests in the property in the late 1980s, despite the siblings not having made any contribution to the purchase price or the mortgage payments for the property, and various family members lived at the property rent free between 1985 and 1992. She has also sold properties to her brother-in-law and her nephew at a discount, and she gave evidence that she provided $180,000 on an unspecified date to a nephew in Europe to help him to purchase a property, which seems to me to be remarkably generous. In 1992, Nouria purchased another home for her parents to live in (while keeping it in her name), and has recently gifted a home to her sister, Ms Komak.[169] Even the development proposal in 2017, which would have required some financial contribution from Marym, would have been a gift to Marym.
267 Nouria's known generosity is relied upon by Marym to support her contention that Nouria's gift of the property to her and Sultan was not out of character. Less charitably, she has said that Nouria uses her wealth and generosity to build and maintain her dominance in the extended Salehi family.[170] Perhaps she does. However, as discussed later in these reasons, it could be overstating the position to say that Nouria is wealthy, such that she can easily afford to give people valuable real estate without having regard to her own needs and circumstances.
268 I accept that Nouria has shown that she has been prepared to deploy her financial resources to achieve the outcomes she wants to achieve in the family. For example, one of the reasons advanced by Nouria for inviting Marym and Sultan to live in the property was to have them living closer to other family members. Further, she said that she initially gave two of her siblings an interest in the property to encourage them to stay in Australia rather than return to Europe.
269 However, a gift of the property to Marym and Sultan in 2001 would have been a gift out of all proportion to gifts that she has made to other family members over the years, and would have amounted to a divestment of a substantial portion of Nouria's property portfolio at the time.
270 As noted earlier in these reasons, the unimproved value of the property as at 31 December 2001 for land tax assessment purposes was $275,000. At the time, Nouria was living at the Ashwood property, and her other investment properties had a total unimproved value of $292,678. That is, the value of the property represented nearly half of the value of Nouria's investment property portfolio at that time. Notwithstanding Nouria's obvious affection and concern for Sultan, it seems to me to be at least improbable, without more, for Nouria to irrevocably give one of her nine siblings, the father of only three of her 24 nieces and nephews, a property representing half of her investment portfolio, particularly in circumstances where she understood that his life expectancy was limited, and therefore she would have appreciated that if she gifted the title of the property to Sultan and Marym, the ownership of the property would pass to Marym in the not too distant future, either by bequest or by survivorship, and while Nouria was likely to be still alive and approaching retirement age.
271 In her evidence, Marym described Nouria as wealthy. Certainly she earned a good income during her working life, and her asset position is solid. While she supported her parents when they came to Australia from Afghanistan and, presumably also helped support her niece Homaira and nephew Karim while they were young, she has had no other children to raise and educate.
272 However, it seems to me that to say that Nouria is wealthy is somewhat overstating the position. She earned a good salary as a scientist, but at no time during the period between 2001 and 2012 did her income from her salary ever exceed $100,000. Based upon her tax returns, she made modest losses from her investment properties and her interest in the Afghan Gallery restaurant, which she was able to apply against her salary income to reduce tax. But, it could hardly be said that she was in the top echelon of income earning professionals. And, while as a single woman she has no dependents to support, no one is or was obliged to look after her either, and the evidence of Marym and her children is that Nouria complained to them about the financial burden of having to pay the rates and land tax for the property.
273 This is not to say that it was impossible, or unforeseeable, that Nouria would have promised Marym and Sultan that she would give them the property, given her generosity to other family members before 2001 and since. But, given that the property was a major component of her investment portfolio, and that in 2001 Nouria may have at least been beginning to contemplate retirement, it seems inherently unlikely that Nouria would have been liberally disposing of valuable properties. While she has recently given a property to her sister, common sense suggests that different considerations might come into play when one is approaching 80 than when one is approaching 60, as Nouria was in 2001.
274 Accordingly, the burden rests upon Marym to establish, with persuasive, if not compelling evidence that Nouria made the representation to her, and Marym's evidence about the October 2001 conversation does not go anywhere near discharging that burden.
275 In my view, in the absence of evidence of a representation by Nouria to Marym to the effect that Sultan and Marym would acquire an interest in the property, any neutral observer viewing the evidence as a whole would form the opinion that Nouria had generously made available the property to her invalid brother and his family for an indefinite period of time, giving them free rein to make any improvements they wished to make.
276 The failure of Marym to give evidence to the effect contended for in the particulars provided in the statement of claim has consequences for the other allegations she has made about her conversations with Nouria regarding the title to the property, in that it makes her version of events in those conversations less credible. Further, while the evidence of the witnesses called by Marym, which I have accepted, lends some support to Marym's claim, that evidence does not go far enough to compensate for the absence of any direct evidence from the person who claims to have been the recipient of the alleged representation, and that evidence also largely contradicts Marym's evidence about the nature of the representation said to have been made by Nouria to her and Sultan.
277 Marym relied upon the evidence of Ms Shapoor and Ms Samad to support her contention that the representation was made. That evidence was said to be a contemporaneous corroboration of what Nouria had told Marym in the October 2001 conversation and the $600 conversation. However, the evidence of both women is to the effect that Nouria told other family members at around the time Sultan and Marym moved into the property that they could do whatever they wanted with the property, and that Nouria would put the title of the property in the children's names once they grew up.
278 Given that Hassib was little more than a baby in late 2001, then taken at its highest and best, that evidence goes no further than establishing that the family would be able to live at the property until the children were adults (that is, some 20 years hence) and then the title to the property would be transferred to the children. It is hardly evidence in support of the contention that Nouria made a representation that she would give Marym and Sultan the property. Indeed, that evidence is more consistent with Nouria having told Sultan that when his children grew up, Nouria would transfer the title of the property to the children, noting at the time of these discussions took place, Nouria knew that Sultan had a limited life expentancy.
279 Turning now to the $600 conversation, there is a direct conflict of the evidence of the two women regarding the $600 conversation. Both women agree that Marym proffered $600 in cash in an envelope. However, Marym's evidence is that she directly raised the transfer of the title to the property to her and Sultan with Nouria, and that she told Nouria that if she had changed her mind, she would stop the renovations and she and Sultan would use the rest of their savings to purchase another home instead. Marym's evidence on the reason why she tendered $600 cash was not entirely clear, but I understand it to be that, if the title of the property was not transferred, she wanted to pay rent (possibly, but not certainly, the amount they were paying for the Armadale apartment)[171] in the period before leaving the property to move into a home of their own. However, she said Nouria told her not to be silly, to keep her money, and to concentrate on finishing the renovations.
280 Nouria's evidence is that Marym gave her the envelope, telling her that $600 was all they could afford by way of rent, and Nouria told her to keep the money. Nouria gave evidence that there was no mention of the title of the property during this conversation.
281 If Marym's evidence regarding the $600 conversation is accepted, then that would be powerful support for her contention that Nouria had promised to convey the property to her and Sultan, given that this conversation took place within a matter of weeks after the October 2001 conversation. I doubt that any other inference could be drawn from the words Marym said were spoken during the $600 conversation. Contrary to the submissions advanced on behalf of Nouria, I do not see the timing of the $600 conversation (not long after Marym and the children moved to the property) as being fatal to any claim by Marym based upon the representation. It is not the mere making of a representation which gives rise to an actionable equity, but rather the detrimental reliance upon the representation which engages the conscience of the maker of the representation.
282 While Marym and her family had moved into the property at the time of the $600 conversation, mere occupation of the property could not have amounted to relevant detriment, particularly given that they ultimately occupied the property rent free. Rather, the relevant detriment was the carrying out of the renovations (the bulk of which were carried out years later), the expenditure of what was said to be their funds on the renovations rather than those funds being used a deposit for a house of their own, and the inconvenience and hardship associated with the renovations (which I accept was real, if a little overstated). While at the time of the $600 conversation the renovations had commenced, no significant structural alterations (apart from the demolition of the laundry) had been made, and the plans for the renovations had not been formally drawn up.
283 Accordingly, if I am satisfied that Marym's evidence regarding the $600 conversation is correct, then her claim to a beneficial interest in the property would be well advanced. However, I am not so satisfied. I am not satisfied because of my conclusions about the ultimate fact in issue in this proceeding: that is, I am not convinced that Nouria promised Marym and Sultan that she would transfer the title of the property to them. While for reasons I shall explain later in these reasons, I accept that Nouria may have given Sultan some promises or assurances that ultimately the title to the property would pass to his children, I do not accept, for the reasons discussed in the preceding paragraphs of these reasons, that Nouria intended or promised Marym that she would have a beneficial interest in the property. As a consequence, I cannot accept Marym's evidence about the $600 conversation.
284 While this reasoning may seem a little circular, ultimately I need to be comfortably satisfied that Marym's version of the $600 conversation is correct, and I am not. My doubts about the reliability of Marym's evidence were reinforced by Marym's evidence to the effect that during the $600 conversation she told Nouria that they still had half their savings left, and could use that as a deposit for a home. While I accept that Marym and Sultan had some savings, the proposition that Marym and Sultan had already spent $20,000 on the renovations by December 2001 cannot be correct, given that the drawings were not finalised until January 2002, the building permit was obtained in May 2002, and the renovations did not get underway until about mid 2002, and continued slowly after that. While I accept that Marym is prone to exaggeration, that statement makes no sense, and undermines the credibility of Marym's evidence about the $600 conversation.
285 Further, Marym gave evidence that, during the $600 conversation, Nouria told her to finish the renovations. However, while the exact date is uncertain, both women agree that the conversation took place within a few weeks of Marym and the children moving into the property, so sometime in late 2001. However, apart from some minor alterations, the renovations had not started, and did not start in earnest until around mid 2002. That further undermines the credibility of Marym's evidence about the $600 conversation.[172]
286 Marym also relied upon the evidence given by her, Ms Samad, Ms Shapoor and Mr Musleh regarding various statements Nouria was said to have made about the ownership of the property after Sultan and Marym moved into the property namely:
(a) the conversations between Nouria and other family members at around the time that Marym and Sultan moved into the property;
(b) the conversation while Sultan was in hospital;
(c) what took place at the family gathering at the property immediately after Sultan's death; and
(d) the conversation between Marym and Nouria in about 2010.
287 In relation to the conversations between Nouria and other family members at around the time Marym and her family moved into the property, Marym relied upon that evidence to establish that:
(a) Nouria publicly acknowledged that she had given the property to Marym and Sultan; and
(b) Nouria knew about the planned renovations, and was content for them to be carried out, because the property was no longer hers.
288 I do not doubt that there were conversations between Nouria and other family members about Marym and Sultan moving to the property at that time, and the planned renovations. After all, the Salehi family is a close knit family, who met and talked regularly. All seemed to agree that Marym and Sultan and the children moving to the property was a positive development, regardless of the nature of the arrangement between them and Nouria, as the family would be moving out of cramped accommodation to a larger home close to other family members. As for the renovations, in my view, even if Nouria had said words to the effect that they could do whatever they like, because it is their house, which I accept that she may well have done, I do not consider that such statements provided conclusive support for the contention that Nouria had transferred the ownership of the property to them, or planned to transfer the title of the property to them.
289 Further, even if Nouria had used the word 'give' in relation to Marym and Sultan's occupation of the property in her conversations with others, that does not necessarily equate to her having made a decision to transfer the beneficial ownership of the property to them. After all, she used the words 'give' and 'leave' during the course of her evidence at trial, in which context it was clear that those words were synonymous with 'make available'.
290 As for Nouria's apparently permissive approach to the renovations, and her statements to the effect that Marym and Sultan could do what they wished with the property, those matters do not of themselves provide unambiguous support for Marym's claim. Indeed, why would family members be asking Nouria whether she had given Sultan permission to carry out the renovations if she had already told them that she had given the property to them?
291 It seems to me that Nouria's apparent acceptance of the renovations is explicable by the following matters:
(a) while Nouria says she and Sultan reached what amounted to a tenancy agreement, I accept that Nouria intended that Sultan and his family would be occupying the property for a considerable period of time, perhaps indefinitely;
(b) while this was a matter of dispute, it seems that the house on the property was tired and dated, and as Sultan was a trained architect, she may well have been happy to leave the renovations in his hands; and
(c) by the time, Marym and the children moved into the property, Sultan had already started carrying out some works, such that she may have become resigned to the fact that Sultan was going to carry out the renovations, noting her evidence to the effect that Sultan was proud and stubborn, and had a high estimation of his capabilities. Indeed, her evidence to the effect that she could not deny his wishes rang true, given the evident emotional attachment she had to Sultan.
292 As previously noted, Marym relied upon the evidence of Ms Shapoor and Ms Samad regarding what Nouria had told them she had done or had intended to do with the property to support her contention that Nouria had promised to give the property to her and Sultan. However, that evidence, which I accept, detracted from rather than supported the proposition that Nouria had made a representation that the ownership of the property would pass to Marym and Sultan, as these witnesses referred to Nouria saying that she would give the property to an unspecified 'them', or the children, or to 'them' when the children grew up. In my view, this evidence is also consistent with Nouria having made no representation or promise with respect to the property at all: she may well have contemplated at various points over the course of nearly two decades gifting the property to one or more of Marym's children, and communicated these musings to other family members, but that conduct is inconsistent with already having made a promise to give the property to Marym and Sultan.
293 As for the conversation said to have taken place between Sultan and Nouria at the hospital in November 2007, there is a direct conflict of evidence regarding what was discussed between Sultan and Nouria about the property and his family's ongoing occupation of the property, in that Marym said that Nouria told Sultan that his family would be there forever because it is their house, while Nouria said that she told Sultan that his family could stay in the house until Hassib turned 18 and finished his baccalaureate.[173]
294 If Marym's version of events is correct, then Nouria's assurance that the property was 'their house' could not of itself amount to an actionable representation, because it was ultimately common ground that Marym incurred no detriment after 2007 (indeed, her contention that the renovations continued into 2008 is demonstrably false), but that these assurances were consistent with the representation said to have been made in the October 2001 conversation. Marym said this conversation took place in March 2008, not long before Sultan's death, at which Mr Musleh was also present.[174] Nouria in turn relies upon a conversation she had with Sultan in November 2007.
295 It does seem possible that there were two conversations, and I consider that it is possible that both versions of events were correct. The two conversations were said to have taken place several months apart. While Nouria said that Sultan told Marym of her decision regarding the ongoing occupancy of the property in November 2007, Nouria did not give evidence that she was present during any such conversation, such that this evidence is of little value. It may well be that during a later conversation in March 2008, with Sultan's death being imminent, Nouria was keen to reassure Sultan that his family could remain at the property indefinitely. However, saying words to Marym and Sultan to the effect that Sultan's family 'will be there forever because this is their house', is hardly a convincing corroboration of a representation said to have been made nearly seven years earlier. Indeed, to the contrary, if Sultan and Marym had relied upon any representation made by Nouria in 2001, one would have expected the conversations during Sultan's illness to take quite a different course. Sultan would be insisting that Nouria fulfil her promise, he would not be, in effect, asking Nouria's permission for his family to stay in the property.
296 The witnesses all gave slightly different versions of what was said at the family gathering at the property immediately after Sultan's death, unsurprisingly, given the passage of time, the number of people in attendance and moving about, and the nature of the occasion upon which the family gathered. As indicated earlier in these reasons, I consider that the version of events which has Springhar Komak telling Mr Musleh to, in effect, mind his own business seems the most plausible. However, it seems that, notwithstanding Mr Komak's rebuke, Nouria did say something in response to what Mr Musleh said were Sultan's final requests.
297 All of the witnesses who gave evidence about what Nouria said during the family gathering were partisan witnesses, and each gave evidence that was consistent with their side of the divide.
298 The witnesses called by Marym largely supported Marym's version of what Nouria said in response to Mr Musleh's statements, that is, that Nouria said that she would look after Sultan's family, and when Hassib turned 23, Nouria would transfer the title of the property to Marym, Wais and Hassib. Mr Musleh said that Nouria said that she would pass the title to the house to them when Hassib turned 18, and then she said that she would do that when Hassib finished university. Ms Samad said that Nouria said that Marym would stay in the house and she would be there for the rest of her life, and once the children grew up, the house would be in their names.
299 Nouria's siblings, Aref and Ms Komak gave evidence which largely supported Nouria's version of events, that is, that the family could stay at the property until Hassib turned 18 and finished school. Mr Najeem said that he did not recall there being any discussion about the property at the family gathering. However, he looked uncomfortable in the witness box when he gave his evidence, in contrast with his open demeanour in the witness box when he gave evidence regarding the renovations.
300 There is something inherently implausible about Nouria's evidence about what she said about in response to Mr Musleh's demands, being the implication that, when Hassib turned 18 and finished school, the family would have to leave the property. That requirement seems to me to be inconsistent with Nouria's passionate commitment to education, and also the cultural mores prevalent in the family referred to by Zahra in her evidence, being that young people would live with their parents until they married, as she did, and her brothers still do.
301 Nouria's educational ambitions for her nieces and nephews and her support for them to achieve those ambitions clearly extend beyond them simply completing secondary school. She was disappointed that Wais did not go to university after he finished school. She made a substantial cash gift to Zahra when she enrolled in her university course. I find it very difficult to believe that she would consider that any responsibility of Sultan's children would end simply once Hassib turned 18. Her evidence about her intentions, and what she said about those intentions, would have been far more credible had she said that the family could stay in the property until Hassib finished university, or until Hassib turned 23.
302 Accordingly, I prefer the evidence of Marym and the witnesses called by her over the evidence of Nouria and the witnesses called by her regarding what was said at the family gathering after Sultan's death.
303 However, a statement by Nouria in April 2008 to the effect that when the children grew up (or when Hassib turned 23, that is, this year) she would give the property to them (which I interpret to be a reference to the children) does not materially advance Marym's claims in this proceeding. First, any such statement is inconsistent with Nouria having previously made a representation to anyone that she would give the property to Marym and Sultan. It is far more consistent with the evidence given by Ms Samad and Ms Shapoor about what Nouria said to other family members at around the time Marym and Sultan moved into the property. It is also far more consistent with what I expect that Nouria always intended: that is, to provide secure accommodation for Sultan for the rest of his life, to be able to assure him that his wife and children had secure accommodation close to the rest of their family while the children were growing up, and, if her circumstances allowed it, to transfer the title of the property to Sultan's children (or perhaps just his sons) once they had grown up.
304 In any event, even if Nouria had promised to pass the title to Marym and the children, or the children alone when the children reached adulthood, that of itself is not an actionable representation. The children are not parties to this proceeding. Equity will not perfect an imperfect gift, and there was no evidence whatsoever of any detrimental reliance by Marym and/or her children upon anything said by Nouria in 2008. Nouria commenced paying the rates, and, on Wais' evidence, when Nouria asked him to pay the land tax, he did nothing about it.
305 What is significant about the evidence about what was said at the family gathering after Sultan's death is that, regardless of which version of what Nouria said is accepted, the question of whether Nouria should pass the title of the property to Sultan's family, or at least to his children, was well and truly out in the open. It was in that context that the later discussions between Nouria and the older children, the discussions between Marym and Nouria in 2017 about the development proposal, and reasons why Marym considered that she had a proper basis to lodge a caveat over the property and to bring her claims in this proceeding need to be considered.
306 As indicated earlier in these reasons, I largely accept the evidence of Wais and Zahra about their discussions with Nouria about land tax and the title to the property in the period between Sultan's death and 2017. The real issue about this evidence is whether this evidence supports Marym's claim that Nouria made the representation. In my view, it does not. Rather, what this evidence tends to suggest is that while Nouria actively considered transferring the property to one or more of Sultan's children, she had no intention of transferring the property to Marym, probably for the very reason she advanced to Wais: that is, she feared that Marym would sell the property and move to Europe to be closer to her family.
307 Of course, that Nouria had no intention of transferring the property to Marym after Sultan's death, for understandable reasons, is not of itself conclusive of whether or not she had intended to do so prior to Sultan's death, or whether she had represented to Sultan and/or Marym that she would transfer the property to them. However, this evidence (along with Wais' evidence that Nouria would not put the property in Zahra's name, because after she married she would no longer be a Salehi) does provide some insight into Nouria's thinking, which does not support the proposition that she would give a valuable property to Marym. In 2001, she knew that Sultan had a limited life expectancy, and was unlikely to see any of his children reach adulthood. Marym was much younger than both Nouria and Sultan, being some 20 years younger than Nouria, and was generally not liked by others within the extended Salehi family. There was always the possibility that she could remarry, notwithstanding Sultan's deathbed request that she not do so. To the extent that the evidence shows that Nouria has made gifts of property and large sums of money to family members, the recipients have all been her blood relatives, or, as with her sale of a property at a discount to Mr Najeem, the transfer was made in the context of a business transaction.
308 What Wais and Zahra's evidence does establish is that, at least from the time of Sultan's death, both the occupation and the legal ownership of the property was an issue being discussed within the family, and that Marym and her children believed they had an entitlement to have the property transferred to them. Marym says that expectation arose from the October 2001 conversation. However, neither Wais or Zahra gave any evidence about why they believed that they and/or their mother were entitled have the title of the property transferred to them. While they were primary school aged children in 2001, there must have been some reason why they were prompted, quite separately, to raise the issue with Nouria, but this remained unexplained by them. This evidence and lack of explanation also contributes to my feeling that there is more to the story than what is revealed by the evidence. Ultimately, however, Wais and Zahra's evidence detracts from Marym's contention that Nouria made the representation.
309 My findings regarding what was said at the family gathering after Sultan's death and, to a lesser extent, the conversations between Nouria, Wais and Zahra also undermine the credibility of Marym's evidence regarding the 2010 conversation. Marym said that she went to see Nouria and told her she had saved $20,000 to fund the transfer of the title of the property to her,[175] but Nouria told her not to worry, she would do it when she could, and Marym should put the money towards a deposit to purchase an investment property, which she did.
310 However, Marym also gave evidence that she felt reassured by Nouria's statements at the family gathering to the effect that the family could stay at the property, and that when Hassib turned 23, Nouria would transfer the property to them. In those circumstances, why would Marym feel the need, two years later, to approach Nouria to seek the transfer of the property some 13 years ahead of time? In the absence of any explanation, Marym's evidence regarding the 2010 conversation is implausible, and I do not accept it.
311 Turning now to the conversations about the development proposal in 2017. There is a subtle difference between the evidence of Marym and Zahra on the one hand, and Nouria on the other hand about what was said by them during the meeting or meetings about the development proposal. Nouria says that she left abruptly after Marym demanded that she transfer the title of the property to her. Marym says that Nouria departed after Marym said 'Okay, but this time we'll have to have it in writing', a response which conveyed that Marym was prepared to agree to the development proposal, but only if the transaction was documented (unlike, by implication, an earlier transaction which had not been documented). Both versions of events support, albeit not conclusively, Marym's claims concerning the representation. However, the fact that the development proposal was put forward, and that Marym was prepared to at least entertain the development proposal does not.
312 Marym's response to the 2017 development proposal was both consistent with and inconsistent with the representation having been made. While Marym said that that Nouria became angry after Marym insisted about putting everything in writing 'this time', Nouria said she became angry about Marym wanting to be on the title of the property. Both versions of this conversation, while subtly different, are consistent with there having been discussions in the past about Nouria passing the title of the property to Marym, or Marym and Sultan, or to Marym and/or Sultan and the children.
313 However, on the other hand, if, at the time the 2017 development proposal was discussed, Marym believed, on the faith of a representation made by Nouria, that she was the beneficial owner of the property, then it is difficult to understand Marym's lack of protest about the development proposal, which would have necessitated the subdivision of the property, and as such, would have required Marym to gift half of the property to Nouria or one of her siblings at Nouria's direction as well as paying for the construction of the town houses. Instead, her evidence was to the effect that she was shocked at hearing of any proposal involving the demolition of the house that Sultan had built with his own hands, she was concerned about what she would tell the children about that, and that she did not like the design of the town houses. And, after Nouria stormed away, when Marym would have had no doubt that Nouria continued to assert her rights as the legal owner of the property, Marym took no action to assert her claim until after Nouria took steps to evict her from the property.
314 It seems that Marym did not seek advice from any lawyers until about November 2019, some two years or more after the conversation about the development proposal, and only after she received a letter from Nouria's solicitors demanding that she vacate the property. While I accept that she may have been unaware of her legal rights, her inaction is also consistent with her laying low in case Nouria took steps to evict her from the property, given that in 2017 Hassib was still at school.
315 As for Nouria, while I accept that Marym and Sultan probably paid for the rates prior to Sultan's death, and Nouria did obtain a financial advantage from keeping the property in her name between 2001 and 2012, Nouria has paid the land tax and the water connection fees for the property since 2001, and the rates from around 2008, which is consistent with her ownership of the property. I have no reason to doubt Nouria's evidence that she proposed to live at the property in about 2016, and that part of the reason for doing so was her desire to assert her proprietary rights with respect to the property. That does beg the question, however, as to why Nouria thought that she needed to assert her rights, which is a matter that has some relevance to the estoppel by encouragement/acquiescence claim, and is also consistent with my view that there is more to the story than what has been revealed by the evidence.
316 I also accept that both Marym and Nouria acted inconsistently with the representation having been made and relied upon. Marym applied to Centrelink for rent assistance, and obtained rent assistance and possibly other financial benefits on the faith of her representation that she was a tenant of the property and had no interest in any real estate. However, that is not necessarily inconsistent with no representation having been made: her position was that her claim for and receipt of rent assistance was at Nouria's instigation, and was bound up with the tax return issue. However, as will be seen from the discussion later in these reasons, I do not accept Marym's case theory about the tax return issue. Further, her evidence that she only applied for rent assistance under duress from Nouria is inconsistent with her frequent communications with Centrelink about rent assistance: for someone who made the claim reluctantly, she was very conscientious in pursuing her entitlements over the years that followed.
317 Accordingly, unless I was to conclude that there was an elaborate scheme to pass ownership of the property to Marym and Sultan but to represent to Centrelink and the ATO that Marym was a tenant, then Marym's claim for rent assistance is more consistent with Nouria's version of events (or, with Nouria having made a promise to transfer the title of the property to the children once they grew up). There is insufficient evidence before me to establish that there was such a scheme.
318 In particular, as discussed in more detail later in these reasons, while Nouria obtained a financial benefit from claiming that the property was tenanted up until 2012, she has received no financial benefit (apart from capital gains) since that time. Indeed, since 2012, Nouria has incurred considerable holding costs associated with the property. If Nouria, as suggested to her by Wais, had transferred the property to Marym and/or her family, she would have not incurred land tax and other holding costs. While Nouria's continued retention of the property despite the costs associated with her retention of the property does not of itself lead to the conclusion that she had not made any representation or conducted herself in such a way as to induce in Sultan and/or Marym that she would transfer the property to them, it does support a finding that Nouria's subjective belief was that she retained the legal and beneficial ownership of the property at all times.
319 I do accept that it is more probable than not that Marym and Sultan paid the rates for the property between 2002 and 2008. Marym's evidence about where she paid the rates is consistent with the documents produced by the Council pursuant to a subpoena, and the fact that it appears that rates were paid in arrears is consistent with Marym and Sultan having assumed the responsibility for the payment of rates, given their fairly precarious financial position. Further, Nouria's explanation as to why she did not pay the rates directly, but reimbursed Sultan in cash, does not ring true.
320 That Sultan and Marym paid the rates for the property, at least until 2008, is consistent with them being the true owners of the property, but it is not conclusive of the matter. Given that they were paying no rent for their occupation of the property, they may have agreed to pay the rates, although there is no evidence of any such agreement. However, the fact that Nouria resumed paying the rates in 2008 because Marym could not afford to pay them is not consistent with there being an understanding on Marym's part that she was the true owner of the property, let alone any such understanding on Nouria's part. Further, while Nouria's payment of land tax is to some extent tied up with the tax return issue, if Marym's contention that Nouria had made an express representation to her that she would transfer the property to her and Sultan is correct, then Nouria's increasing land tax burden, would have been a powerful incentive for Nouria to make good her representation.
321 Another reason, albeit not a particularly significant reason, why it is implausible that Nouria represented to Marym that she would give the property to her and Sultan was Marym commencing in 2010 to purchase her own investment properties. While it is not conclusive of the matter, Marym's entry into the property market is more consistent with her knowing that the property was not hers, and would never be hers (although it might pass to the children), and that she needed to take steps to secure her financial future once she could afford to do so.
322 Perhaps the most powerful argument in support of Marym's claim is that advanced by the rhetorical question she asked while giving her evidence: why would she and Sultan have incurred the cost and inconvenience of the renovations if they did not believe that the property was their own house?
323 As will be seen from the discussion later in these reasons, I accept that Sultan and Marym paid for a substantial part of the costs of the renovations, I accept that Sultan contributed his unpaid labour, and I accept that for a substantial period (albeit not seven years) Marym was forced to live and raise her family in inhospitable conditions. I also accept that Marym's belief that she and/or she and her family had an entitlement to the property was genuine. Ultimately, that Marym agreed to the renovations (and there is evidence to suggest that she urged Sultan to do the renovations) is consistent with a belief that not only would she derive a short to medium term benefit from the renovations, being a more comfortable home for her and her family, but also a medium to longer term benefit from the renovations, being that the property would ultimately pass to her or to her children.
324 In an earlier section of these reasons, in the course of summarising the relevant legal principles regarding the fact finding exercise in this proceeding, I referred to the authorities which stand for the proposition that, in reaching a conclusion that when a party has not discharged the burden of proof upon them with respect to a particular claim or issue, it does not automatically follow that I must accept the version of events put forward by the other party.
325 The principle informs how I would answer Marym's rhetorical question. Essentially, I accept Marym's evidence about what Sultan told her on the telephone when she was traveling in Europe in about August 2001. Whether Sultan was accurately recounting to her what Nouria told him about her intentions with respect to the property, or whether Sultan simply hoped or believed that Nouria would ultimately give his family the property is not something I necessarily need to finally determine.
326 However, given the evidence of the other witnesses called by Marym about what public pronouncements Nouria made about the property in 2001 and 2008, given the evidence about what Sultan told Mr Musleh and Mrs Shapoor about why he was doing the renovations, given the evidence about the discussions between Nouria and Marym's older children in the years after Sultan's death, and given my findings about who paid for the renovations, it seems to me to be more likely than not that Sultan genuinely believed that Nouria would ultimately transfer the property to his children either when they grew up, or possibly upon Nouria's death.[176] Even if that belief was not derived from something that he was told by Nouria, it would not have been an unreasonable belief for Sultan to hold. All of the evidence suggests that, despite his ill-health, Sultan had an exuberant and optimistic personality, and ultimately, no doubt, the bulk of Nouria's assets will pass to the next generation of Salehis upon her death, and possibly before that time.
327 Further, it is not inconceivable that Sultan may have overstated the position about what Nouria said to him about the property to Marym. He was clearly eager to renovate the property: he was an architect working in a fish and chip shop, with little or no prospect of practising his profession in Australia. There was evidence to the effect that building or renovating a home for his family was his dream, and Zahra said that Sultan poured his heart and soul into the renovations. There were clearly lifestyle benefits to him and his family of moving to the property and renovating the property, and he would reasonably expect that his tenure at the property would be secure, given the affection between him and his sister, and Nouria's renowned generosity. However, I expect that he may have considered that he might well have to give to Marym certain assurances about the future in order to persuade her to agree to relinquish the plan (however realistic or unrealistic that plan was) to purchase a property of their own, and to commit to undertaking the renovations.
328 To me, that is the most plausible explanation of what actually occurred, and provides the best fit with the evidence of all of the witnesses. That explanation seems to me, using the 'reasonable, common sense approach' referred to by Rush J in Kalam v Kalam,[177] the best way in which the competing version of events can be sensibly reconciled. But accepting that explanation means that Marym's primary claim in this proceeding must fail.
329 Given that I am not satisfied that Nouria made a representation to Marym that she would give her and Sultan the property, then strictly speaking, it is not necessary for me to consider the other elements of estoppel by representation as set out in paragraph 202 of these reasons. However, for completeness, I will do so, briefly.
330 First, I accept that, if Nouria had made the representation, it would have been reasonable for Marym (and Sultan) to rely upon that representation, given the close relationship between Sultan and Nouria, her renowned generosity, and her role and standing within the family.
331 That said, if the necessary reliance is established, I accept that Marym suffered detriment in reliance upon any representation made by Nouria. As will be seen from the discussion in the following section of these reasons, I accept Marym's evidence that as at the end of 2001, she and Sultan had savings of approximately $40,000, and that they wanted to buy a home. Whether that was a realistic plan is open to question, at least in the period up until when Marym started working in 2004, but in any event, I accept that they spent those funds, and other funds, upon the renovations, and the family did endure hardship for about three years, which Nouria appears to accept.
332 Accordingly, had I reached a different view on the question of whether the representation was made, I would have found that the other elements of estoppel by representation would have been made out. The question of what remedy would be appropriate to satisfy the equity raised by any representation and Marym and Sultan's detrimental reliance upon that representation will be discussed later in these reasons. Prior to doing so, given the significance of Marym's allegations regarding the renovations and the tax return issue to her claims in his proceeding, I will set out my findings in relation to those matters in the following sections of these reasons.
333 There is no dispute that between 2002 and 2007, Sultan supervised extensive renovations to the property. What is in dispute is the need for the renovations, the cost of the renovations, the duration of the renovations, and who paid for the renovations.
334 The resolution of these disputes is significant to the issues in this proceeding in a number of respects. Marym says the house on the property was in need of significant renovation and repair, and that she and Sultan devoted the funds they had saved to purchase their own home to funding the renovations. Accordingly, she and Sultan suffered a material detriment consequent upon their reliance upon Nouria's representation to them that the property was theirs. Alternatively, Marym contended that Nouria knew about the need for and the extent of the renovations, and encouraged them to proceed with the renovations.
335 If, as Marym says, Marym and Sultan embarked upon a lengthy and costly renovation using their own funds, this would lend support to her contention that they did so in reliance upon an expectation, induced by Nouria's statements and/or conduct, that the property would ultimately be theirs. As Marym asked, rhetorically, why otherwise would they incur such trouble and expense?
336 Nouria says she actively opposed the renovations, because she considered that they were unnecessary, and because of her concerns for Sultan's health. Her witnesses say that Sultan did the renovations because Marym wanted them done, and that Marym harassed Sultan to complete them quickly. Nouria says she rarely attended the property in the relevant period, and as such was not fully aware of what was being done and when. She says that the total value of the renovation receipts evidencing actual expenditure (as opposed to quotations and other documents in the renovation receipts) was in the order of $40,000, and that she paid for all of the renovations of which she was aware.
337 Turning now to the evidence regarding the renovations, the plans for the renovations were drawn up in sketch form by Sultan, probably sometime in late 2001, while the detailed plans for the purpose of submission to the Council were drawn up by Mr Najeem and finalised in January 2002. The plans drawn up by Mr Najeem followed the design sketched out by Sultan. Essentially, the renovations involved the following:
(a) downstairs: remodelling the kitchen, bathroom and laundry, including new cabinetry, fittings and appliances, the construction of a new family room extension, the refurbishment of the existing living/dining area (including new windows and doors), the installation of hardwood flooring, and repainting the downstairs bedrooms;
(b) upstairs: the replacement of a spiral staircase, the construction of an additional (master) bedroom, with walk in robe, ensuite, and balcony, and the refurbishment of the existing bedrooms and bathroom; and
(c) externally: an extension of the driveway, an extension of the front patio, and landscaping.
338 A building permit was obtained on 30 May 2002. The building permit nominated Nouria as the owner-builder, with the estimated cost of the works being $50,000. I accept that the application for the building permit dated 17 May 2002 was signed by Sultan, not Nouria, noting that both Nouria and Mr Najeem identified the signature on the application as being Sultan's signature,[178] and that Nouria had limited, if any involvement in having the plans drawn up and obtaining the necessary permits and approvals. The sum of $50,000 is considerably less than the amount Marym said she and Sultan paid for the renovations (being $156,510), and Mr Najeem's estimate of $100,000 to $120,000 for the cost of the works (if carried out by a registered builder under a more conventional arrangement). As noted earlier, the cost of the materials and trades covered by the renovation receipts totalled about $40,000, but the renovation receipts are an incomplete record of the works which were actually carried out, and do not include any documents evidencing the cash paid to the workers. It is difficult on the available evidence to estimate the value of the unpaid labour carried out by Sultan.
339 Marym relied upon a number of documents to support her contentions about the renovations, including a bundle of photographs taken at the property, the drawings, plans and reports prepared by Mr Najeem and a structural engineer in early 2002, a bundle of documents concerning the building permit and an extension to the building permit in 2004, compliance certificates for electrical and plumbing works, and an order form associated with the installation of the kitchen cabinetry. She also produced an original notebook in which she recorded her expenditure during the course of 2005 ('notebook'), including a summary of what she said she and Sultan spent on renovations.
340 The renovation receipts were produced by Nouria through the discovery process in this proceeding. She says that Sultan provided invoices and receipts to her at her request, because she was funding the renovations, and she required verification of Sultan's expenditure. Marym says that she and Sultan gave Nouria the receipts because Nouria said she wanted them for tax purposes. This was said to be consistent with Marym's contention that Nouria kept the title of the property in her name because she wanted to deduct the expenses associated with the property from her taxable income. The evidence about when Marym and Sultan gave Nouria the renovation receipts is unclear, but Nouria says that the invoices and quotations in the renovation receipts were given to Nouria by Sultan for the purpose of showing her what he needed funds for, and the actual receipts were provided to her in a single bundle after the renovations were completed. A significant number of the renovation receipts recorded very modest items of expenditure, usually less than $100, and sometimes less than $10.
341 However, in my view, the fact that the renovation receipts were in Nouria's possession proves or disproves nothing. It does not prove that Nouria paid for the goods and services referred to in the renovation receipts. Conversely, it does not prove that Nouria utilised the property to reduce her tax liabilities, as contended for by Marym.
342 There is a perfectly sound (and legitimate) reason why Nouria would have wanted to keep the renovation receipts, regardless of whether any representation was made by her to Sultan and Marym about their ownership of the property and regardless of whether or not she paid for the renovations. Nouria is the registered proprietor of the property. She, Timur and Golalai became the registered proprietors of the property on 20 September 1985, and Nouria became the sole proprietor of the property in November 1989. Curiously, and presumably coincidentally, 20 September 1985 is the date that real property (save for principal residences) first became subject to capital gains tax. The property has been an investment property (in Nouria's hands at least) for most of the period for which she has been the registered proprietor. If and when the property is ultimately sold, it will be subject to capital gains tax. The costs associated with the renovations will be able to be added to the cost base for the property, which would reduce the capital gains tax ultimately payable with respect to the property upon its sale.
343 Accordingly, regardless of whether Nouria paid for the renovations, or whether or not she approved of the renovations, her possession of the renovation receipts is readily explicable. In any event, as will be seen later in these reasons, it does not appear that the renovation receipts were deployed for the purpose of reducing Nouria's liability to pay income tax during the course of Marym's occupation of the property, which is inconsistent with Marym's case theory. However, the renovation receipts do shed light upon the progress of the renovations, and, to some extent, as a consequence, the issue of who paid for the renovations.
344 As previously noted, the main matters of controversy concerning the renovations are as follows:
(a) the state of the property prior to the renovations;
(b) the total cost of the renovations;
(c) the duration of the renovations and the resulting inconvenience to Marym and her family;
(d) who paid for the renovations; and
(e) whether Nouria encouraged Marym and Sultan to undertake the renovations at their cost and expense.[179]
345 Ultimately, the question of whether a residential property is suitable for a family is a very subjective matter, and is, to some extent, a matter which people of different generations and different financial circumstances might have very different views. Nouria said that the house on the property was in an excellent condition. Marym said that the house on the property was very tired and dated, with rotting cupboards in the kitchen, non-functioning appliances, an external laundry, and an unsafe spiral staircase to the second storey, and that no significant improvements had been made to the property since Nouria purchased the property in 1985. Mr Najeem's evidence confirmed that the property was somewhat tired and dated, saying that he would have demolished the house on the property rather than renovated it.
346 While perhaps not much turns on this issue in the end, I find that while the house on the property was quite habitable as at 2001, and had sufficient accommodation to house a family of five, it was not unreasonable for Marym and Sultan to conclude that improvements were required to the property. I also accept that, in embarking upon the renovations (at their expense or Nouria's expense) Marym and Sultan must have had an expectation (whether engendered or reinforced by Nouria or otherwise), that the family would, at the very least, be going to occupy the property for a very long time (as they in fact have), such that they would enjoy the benefits of the renovations for quite some time, regardless of who owned the property.[180]
347 As for the cost of the renovations, as noted earlier, Marym relies on what she says was a summary of the costs of the renovations she made in a notebook that she kept at work in which she traced the family's expenses. The notebook appears to be authentic, and it was not put to Marym that it was a reconstruction, or that the entries made by Marym were false.[181] The notebook is a spiral bound 'Counter Book' commonly (at least in the past) used for recording expenses. The cover also has a stamp impression which might commonly be used in a pharmacy. Many of the pages in the notebook are blank, but the notebook appears to have been used to keep a running record of household expenses (in round figures) in 2005. The monthly running sheets do include payments for tiles, payments to Sultan, payments to Mr Rahim, one of the workers, and payments for the ANZ loan. Curiously, the record for the ANZ loan payments of $270 in February 2005, March 2005, and April 2005 (but not May 2005) have been added last, and are in a different ink than the other expenses recorded in the notebook, such as to arouse some suspicion that they have been added to assist Marym's case in this proceeding, but the bulk of the entries in the notebook seem to be genuine.
348 While her evidence about this was a little vague, Marym gave evidence that she made the entries in the notebook in around January 2006. Having regard to the layout and contents of the notebook, I interpret that evidence to mean that she made the last entries in the notebook in January 2006. It seems from the renovation receipts that the major structural works associated with the renovation were complete by this time.
349 The notebook contains lists of household expenses by month between February 2005 and August 2005. The types of expenses recorded in the notebook are unremarkable, and as such the notebook appears to be a genuine record of the usual expenses incurred by a household with children, although I note my earlier observation regarding the ANZ loan repayments. The only entries on these pages which refer to the renovations include a payment in June 2005 of $370 for tiles, and later that month, a payment of $800 with the annotation 'Sultan to pay Rahim'. After August 2005, there are only a handful of further entries for household expenses: the remainder of the entries are referable to the renovations.
350 The notebook records that between 25 October 2005 and 24 January 2006 (the actual time of day is recorded in some of the notations) payments totalling $9,970 were made to 'Sultan Salehi', 'Rahim', and/or 'Sultan Salehi (for Mr Rahim)'. Then followed a list of 40 days upon which Mr Rahim was said to have attended the property.
351 A later page has a notation 'Saving 4000', followed by another page which contains the summary of expenditure Marym relies upon to arrive at her calculation of $156,510, which is reproduced below:
352 The following page records some unrelated household expenses in January 2006, while the next page records the date 29 October 2001.
353 Then follow a number of blank pages. The next relevant page records a list of rate payments between 2001/2002 through to the date '31-08-2007 - 2008', including the method and location of the payment. This page appears to have been written all at once and, as such, this list must have been compiled after 2008.
354 Then follow a further series of blank pages, and the next relevant page has three entries which must refer to rate payments: a payment of $924.80 on 15 June 2001 with the notation 'Auto', and two further payments of $215 in 2003.
355 The final relevant notation in the notebook is on a separate page, and says 'From 29/10/01 - $40,000 Muslim Islamic Bank', presumably referring to a withdrawal said to have been made on that day. Marym says she and the children moved to the property some time in October 2001, while Nouria contends that she moved there on 29 November 2001, consistent with the Centrelink documents.
356 As noted earlier in these reasons, the addition of the ANZ loan repayments to the lists of household expenses in a different ink does raise some concerns about whether the notebook is truly a contemporaneous record of funds spent by Marym on the renovations, but it was not put to her that the entries in the notebook were fabricated. Further, the inclusion of the list of rate payments in the notebook is inconsistent with Marym's evidence that the last entries were made in the notebook in January 2006. That said, save for some very minor errors, this list accords with the record of payments produced upon subpoena by the Council, noting that the documents produced by the Council were only released to the parties on the second day of trial, and a copy of the notebook was discovered by Marym on 13 August 2021.
357 There is one anomaly in Marym's record of payments in the notebook which is difficult to explain, particularly if the summary was compiled as early as January 2006. The summary refers to Abdullah being paid $1,700 per month for 24 months between July 2001 and July 2003, a total of $40,800. However, Marym did not move to the property until late 2001, and the building permit was not obtained until May 2002, so this entry must be wrong. The other evidence, including Zahra's evidence that Abdullah lived at the property for two years and the date of the building permit suggests that Abdullah helped Sultan with the renovations between July 2002 and July 2004, not July 2001 and July 2003. This error may suggest that this record was prepared many years after 2004, not less than two years after July 2004, but this matter was not something that was put to Marym in cross-examination.
358 Some photographs in evidence show Abdullah sanding hardwood floorboards, and working on the frame of the downstairs family room extension. A photograph taken at Wais' ninth birthday (while the date of his birthday is not in evidence, I estimate that to be in about mid 2002) shows some timber (probably floorboards) stacked in the room. Hassib, who would have been about two years old at the time, is also shown in this photograph, and in another photograph taken on Zahra's seventh birthday (also some time in 2002). Attempts to date the time Abdullah was working on the frame of the extension were unsuccessful: in one photograph, a toddler can be seen in the distance, but in another photograph Hassib looks a bit older than in the birthday photographs, perhaps at least three years old, which suggests that these works were carried out in 2003 or even 2004.
359 The sums recorded in the notebook appear to not be too far outside the range for the estimated cost of the renovations referred to by Mr Najeem in his evidence, who I accept was a reliable witness possessed of relevant expertise. He said that he considered that it might cost between $100,000 and $120,000 to carry out the works in the plans drawn by him. However, he drew those plans in January 2002, and it is clear from the renovation receipts that a lot of the works were carried out as late as 2004 and 2005, with some further largely cosmetic works being undertaken in 2006. Also, it seems from the evidence that mistakes were made, which may have required required Sultan to bring in extra contractors to fix them. Further, cost overruns in domestic building renovations are hardly rare events. Accordingly, I accept Marym's evidence that the renovations cost $156,510.00.
360 The fact that the total value of the renovation receipts was around $40,000 does not detract from this finding. The renovation receipts are clearly incomplete, in that there are no receipts for tradespeople or materials prior to 2004, when works were clearly being undertaken prior to that time, and they contain no record of what was paid to the workers and possibly other tradespeople, such as the 'Aussie sub-contractors' referred to by Zahra in her evidence. While the renovation receipts contain a quotation for plumbing works for $11,400, they do not include any record to the effect that this amount or some other amount was actually paid for plumbing works, but it is evident from the scope of the renovations that substantial plumbing works must have been done. Similarly, the renovation receipts show only minor amounts for electrical works, inconsistent with the construction of new extensions upstairs and downstairs with a total floor area of 80 square metres, and Marym's evidence that the whole house was rewired. There are no receipts showing the purchase of hardwood floors, or structural timber of the kind evident from the photographs in evidence. That is not surprising, given that the evidence (including the building inspection report dated 31 January 2005) suggests that this work was largely complete prior to the period covered by the majority of the renovation receipts. There are no invoices or receipts for whitegoods or other appliances save for a heating unit, and the receipts for the kitchen cabinetry record a lesser value than the order form identified by Marym in her evidence.
361 The fact that the building permit application referred to the cost of the renovations as being only $50,000 does not cause me any great difficulties in accepting a much higher sum. Mr Najeem said that Sultan believed that he could complete the renovations more cheaply than Mr Najeem's own estimate of $100,000 to $120,000, and I have gained the impression from the witnesses at trial that Sultan had an optimistic personality. Mr Najeem also observed that the permit application fees would vary with the nominated cost of the renovations, such that there would be an incentive to minimise the estimated costs of the works in the building permit application.
362 Further, Mr Musleh gave evidence that Sultan told him that the renovations cost $145,000. While strictly speaking, this evidence is not admissible to prove the correctness or otherwise of what Sultan told Mr Musleh, this figure was mentioned in a conversation Mr Musleh said he had with Sultan about the renovations. There seems to be no reason to doubt the accuracy of Mr Musleh's recollection of that conversation, and the figure referred to by Sultan is quite close to Marym's estimate. Mr Musleh's evidence was that his conversation took place at around the time of the electrical safety inspection, which suggests that this conversation took place in May 2006, when the renovations were largely complete.
363 The dispute about the duration of the renovations is relevant to the question of detriment. Marym's contention is that she lived with her family in a construction site for seven years, with lengthy periods without a kitchen, and building materials and dust everywhere. This inconvenience and hardship amounted to relevant detriment, and, Marym would say, why would she and Sultan spend their modest savings and put up with the disruption and the mess of the renovations while she was working and raising children if she and her family would ultimately derive no benefit from the renovations?
364 I do not doubt that there were periods of disruption and inconvenience involved in living in a house undergoing extensive renovations. Indeed, Nouria's own evidence was that she knew that the family was suffering, and it was because of that suffering she urged Sultan to hurry up and finish the renovations, as he and his family should not have to live in such conditions.
365 However, I suspect that Marym's evidence regarding the duration of the renovations, in particular, the period in which the family lived in real hardship conditions (for example, without a kitchen) is somewhat exaggerated. As previously observed, it seems that the major structural works associated with the renovations was carried out between mid 2002 and late 2004, with works on the kitchen and the bathrooms being carried out in 2005. Mr Najeem said that the house on the property was liveable within two years, which may have been a slight underestimate, but not by that much. Three and a half years is a significant period of time to be living on a construction site, but three and a half years is not seven years. Further, while there was some reference in Marym's evidence to there being missing walls (so that the interior of the house was open to the elements), and not having a kitchen or a laundry, her evidence was rather vague and imprecise as to how long this state of affairs persisted. In summary, I accept that the renovations were disruptive, but not to the extent contended for by Marym.
366 Turning now to the question of who paid for the renovations, given the purpose for which Marym relies upon the renovations, it is a significant issue, and of course Marym bears the onus of proof that she and Sultan paid for the renovations. The resolution of this issue also bears upon the question of whether the representation was made, or whether Nouria's encouragement of or acquiescence in the renovations gives rise to any relief in favour of Marym.
367 I note that even if I accept that Marym and Sultan paid for the renovations, or the bulk of the renovations, it does not necessarily follow that they did so in reliance upon any representation by Nouria that they would become the owners of the property. Conversely, even if I accepted that Nouria paid for part or all of the renovations, this is not necessarily inconsistent with the proposition that she had promised Sultan and Marym that she would transfer the property to them. It is less likely that Nouria would spend money on a property that would no longer be hers, but, given Nouria's renowned generosity and particular fondness for Sultan, it is unlikely, but not completely inconceivable that not only would she give him or his family a property, but that she would also pay for it to be renovated.
368 Marym's evidence is that the renovations were financed from the $40,000 they had by way of savings as at 2001, $40,000 from the proceeds of sale of the fish and chip shop in 2004 or 2005, $15,000 from the ANZ loan and the sale of some jewellery (valued at approximately $20,000), with the balance (approximately $40,000, if the amount of $156,510 is accepted as being the cost of the renovations) being funded from her income from her work at the pharmacy and from Centrelink.
369 While the matter is not free from doubt, I accept Marym's evidence that she and Sultan had approximately $40,000 in savings by the time they commenced the renovations in approximately mid 2002. While Nouria was understandably sceptical that Marym and Sultan had accumulated $40,000 in savings by that time, given that they were both dependant upon Centrelink benefits during the 1990s, the evidence shows that Marym and Sultan opened an account at the MCCA on 10 June 1996, more than five years prior to them moving into the property. While it was not at all clear how much income Sultan derived from the fish and chip shop, presumably he would have been earning something, given that the evidence shows that no later than 1997 Sultan was operating the business,[185] and the business was sold, not closed in 2004 or 2005, and the sale price (said by Ms Mershedi to be $70,000) was no doubt reflective of its capacity to generate a profit. Sultan and Marym may not have declared any income earned by Sultan from the fish and chip shop to the ATO or Centrelink, consistent with Marym's conduct after moving to the property, but he may well have been receiving sufficient income for them to save $8,000 per annum. Further, the reference on the building permit application form to a cost of $50,000 is consistent with Sultan and Marym having access to savings of an amount near that sum.
370 Finally, the very fact that Marym instructed her solicitors to issue a subpoena directed at the MCCA to obtain her account statements and other records is consistent with her believing that the MCCA would have evidence which would support her contention in that regard. Otherwise, issuing the subpoena would have been counter-productive in the extreme, as she was not to know that the MCCA had not retained any records of the account.
371 The evidence leaves me in some doubt as to who repaid the ANZ loan. Marym said that she repaid the ANZ loan from what she described as her emergency savings. She repaid the ANZ loan less than six months after it was drawn down, because, as she said, they could not afford to make the required repayments of $270 per month. This evidence, with respect, makes no sense. If she had sufficient savings to repay the ANZ loan less than six months after it was taken out, why was it necessary for her to take out the loan in the first place?
372 Another respect in which Marym's evidence regarding taking out the ANZ loan was odd was her denial of any connection between taking out the ANZ loan and receiving a quote for $11,400 for plumbing works some days beforehand, as I would expect that receiving a quote of that magnitude would be precisely the type of event which would trigger the decision to apply for a personal loan at that time. However, not much turns on that, save for the negative impact on Marym's credibility.
373 However, Nouria's evidence regarding the repayment of the ANZ loan is also less than satisfactory, having regard to the fact that the loan was drawn down on 18 January 2005 and repaid on 20 June 2005. She gave evidence that Sultan called her when she was in Afghanistan saying that Marym had taken out a personal loan and he needed her to repay it. No explanation was given as to whether she asked about the purpose of the loan, or why Sultan needed Nouria to repay the loan. She said that as soon as she returned to Australia she went to the ANZ bank branch at Melbourne University and deposited the funds to repay the loan.
374 There is no longer an ANZ Bank branch at Melbourne University, but as a former student I know that there was a branch on the main campus in the past. It may well have been the closest ANZ Bank branch to the RMH, so that part of Nouria's evidence rings true. Nouria's affidavit of documents indicates that she banks with the Commonwealth Bank (although none of her bank statements are in evidence), so she would presumably have no other reason to visit an ANZ Bank branch. However, as noted earlier in these reasons, the travel records show that she was only absent from Australia for a three week period in the first half of 2005, returning to Australia on 4 April 2005. She was in Australia when the ANZ loan was drawn down on 18 January 2005, and had been back for nearly three months when it was repaid on 20 June 2005, such that her statement that she deposited the payment the day after she returned from Afghanistan cannot be correct. However, my belief as to what actually occurred with the funding of the renovations is consistent with Nouria repaying the ANZ loan, Marym's evidence about the source of the funds that she used to repay the ANZ loan was implausible, and her evidence that she 'didn't believe' that Nouria repaid the ANZ loan was less than emphatic.
375 I also do not accept Marym's evidence that the balance of the costs of the renovations (being approximately $40,000) were funded from her income, given that they would have needed to fund more than $10,000 per annum from their own resources over a three and a half year period.
376 While Marym says she commencing working at the pharmacy in March 2004, the absence of any tax returns or bank statements for this period it is impossible to make any findings about what income she had from her employment during that period. The absence of any tax returns suggests that she was not earning sufficient income to be required to pay tax.
377 There is no evidence as to what, if any, income Sultan was receiving from the fish and chip shop. However, Marym received approximately $25,000 per annum from Centrelink between December 2002 and December 2005 (that is, approximately $2,000 per month), and she was also working as a pharmacy technician in the second half of that period. However, the notebook also shows that she was paying all of the usual expenses of running a household and raising children. By way of example, in April 2005 she spent $1,380 on household expenses, $2,185 in May 2005 and $2,142 in June 2005, leaving little left over to fund the renovations. Indeed, the expenditure records in the notebook refer to only three payments from her income being used for the renovations up until September 2005, being a payment for $370 for tiles in June 2005, a payment of $800 to Sultan in August 2005, and a payment of $400 to Sultan in September 2005.
378 Further, the notebook also records payments said to have been made to Sultan, Mr Rahim, or Sultan and Mr Rahim between 25 October 2005 and 24 January 2006, totalling $9,970, a period which was largely consistent with the dates Mr Rahim was recorded as working on the renovations. In that 10 week period, Marym would have only received approximately $3,000 from Centrelink. Although I accept that she was working at the time, I doubt that her income alone would have been able to fund expenditure of that scale, given that her household expenses consumed approximately $2,000 per month. Accordingly, I do not accept Marym's evidence that a substantial proportion of the renovation costs were met from her income.
379 Nouria's evidence regarding her payment of the renovation expenses was particularly vague, which is inconsistent with my impression of her personality, intelligence, and financial literacy. She was very careful to say in her defence and her outline of evidence that she paid for all of the renovations that she knew about. If she had paid for the whole of the renovations, I would have expected her to have been more precise about dates and amounts, given that the sums involved were substantial, even for someone who is reasonably prosperous.
380 Further, the renovation receipts are not consistent with Nouria having paid for all of the costs of the renovations. I note my earlier observation that the renovation receipts must be incomplete, and a number of substantial cost items were not evidenced by the renovation receipts. It is apparent from the photographs in evidence that substantial works were being carried out between 2002 and 2004, in particular, the installation of hardwood flooring, and the construction of the extensions. However, apart from a receipt for skip bin hire in December 2001, the date of the first of the renovation receipts is 18 March 2004, which suggests that Nouria did not make any request for the renovation receipts to be provided to her prior to around that time. The inference I can draw from that finding is that she was not paying for any of the renovations prior to that time, the costs of which must have included construction materials, the wages paid to Abdullah, and possibly electrical works for the extension.
381 The building permit was obtained in May 2002, which required the entirety of the works to be completed by 30 May 2004. In March 2004, Sultan received the letter notifying him that he needed to arrange for a final inspection or an extension to the building permit.
382 By that time, Sultan and Marym must have been getting anxious about the renovation project. It is not clear whether or not the frame of the upstairs extension had been completed by that time, but certainly none of the wet areas had been refurbished or fitted out, and the kitchen was not installed until early 2005. If the evidence that Mr Abdullah had been paid approximately $40,000 over a two year period is correct, then Sultan and Marym's savings must have been exhausted, and substantial works were still required to complete the renovations. That the family's financial position was parlous in 2004 is evidenced by the fact that by September 2004 Sultan was being pursued by debt collection agencies over unpaid telephone bills. It was in that context that I accept that in or around 2004 Nouria began to provide Sultan with some financial assistance to finish the renovations.[186]
383 However, I do not consider that Nouria's financial assistance extended to funding the whole of the renovations. Given my finding about the cost of the renovations, I find it difficult to accept that over a two to three year period Nouria paid Sultan over $150,000 in cash, with only a quarter of that amount verified by invoices and receipts, to carry out renovations initiated by Sultan without her approval.
384 I accept that Nouria is a very generous person, and that she was very keen to help Sultan out at a difficult time. I accept her evidence that she offered to find and pay a builder to finish the renovations, and I accept that she paid the ANZ loan. I accept that she is a woman of financial substance. However, given the evidence of her financial position in her tax returns, handing over close to $50,000 per year to Sultan for three or more years would have consumed a substantial proportion of her disposable income, noting that in the 2003 tax year her salary was approximately $78,000 (and her taxable income was about $40,000), and she incurred, among other things, work related travel expenses of about $12,000. In the 2006 tax year (covering the period in which the renovations were largely completed), her salary was approximately $76,000 (her taxable income was about $44,000), and her work related travel expenses were more than $14,000. Even if she lived reasonably frugally (and there was no evidence about that one way or another), I doubt that her discretionary spending capacity extended to funding the full cost of the renovations. Further, if, contrary to my views about this matter, she did fund more than $150,000 for the renovations, I expect that she would have been able to give quite precise evidence about how much she paid and when.
385 Further, I note that Ms Komak gave evidence that Sultan approached her and her late husband for a loan of $8,000 for the renovations: why would Sultan have needed to do that if Nouria had been paying for everything?
386 I do however accept that Nouria funded part of the cost of the renovations, probably from sometime in 2004, once it became clear to Sultan that the project was over time and over budget, and that completing the renovation project was beyond his immediate resources.[187] While I accept that both Ms Komak and Aref were partisan witnesses, I am also prepared to accept that their evidence about what they observed during the course of the renovations was truthful. Ms Komak gave evidence that she saw Nouria give Sultan money, and Aref gave evidence that when pressed about how he had paid for appliances he saw at the property, Sultan eventually told him that Nouria had given him the money.[188] The evidence to the effect that both Nouria and Marym were pressing him to finish the renovations more quickly is quite credible, given they were well underway, and given that I accept that the family's living conditions were less than satisfactory for a considerable period of time.
387 It is difficult on the state of the evidence to make a precise finding as to how much Nouria gave Sultan to fund the renovations, and how much was paid by Marym and Sultan. However, doing the best that I can, I accept that Sultan and Marym paid for approximately two-thirds of the costs of the renovations, and Nouria one-third of the costs of the renovations, with Nouria's contributions being made directly to Sultan via cash payments, or indirectly via her repayment of the ANZ loan.
388 The consequence of my findings regarding the renovations for Marym's claims in this proceeding are as follows:
(a) they support, but do not prove, Marym's claims regarding the representation;
(b) they establish that Marym and Sultan incurred a detriment in reliance upon any representations; and
(c) they establish a necessary element of both estoppel by encouragement and estoppel by acquiescence, being the expenditure by Marym and Sultan on the improvement of the property of another. Whether that is sufficient to create an equity in favour of Marym is discussed later in these reasons.
389 Another matter relied upon by Marym to support her contention that Nouria intended and represented that the beneficial ownership of the property would pass to Sultan and Marym when they moved to the property in 2001, but retained the legal title to the property because of the financial benefit to her of being able to negatively gear the property, was the reporting of rental income and expenses associated with the property in Nouria's tax returns between 2002 and 2011.
390 It seems that the suspicions of Marym and her legal advisors were further aroused by what they say was Nouria's resistance to providing her tax returns through the discovery process, and were only heightened by the disclosure, also through the discovery process, of amended tax returns prepared by Nouria's accountant, Mr Geoffrey Westcott, and submitted by Mr Westcott to the ATO a few weeks before the commencement of the trial.
391 Both the original tax returns and the amended tax returns for the years between 2001 and 2011 were in evidence. Both Nouria and Mr Westcott were subject to extensive cross-examination at trial regarding the preparation and content of the original tax returns and the amended tax returns.
392 Mr Westcott gave evidence about the process of preparing the original tax returns and the amended tax returns. He runs a suburban accounting practice, with approximately 160 individual and small business clients. Nouria has been a client of his for over 20 years. When they first met, Nouria told him about her employment, her ownership of various investment properties, and her other business interests. However, she did not tell him that she owned the Lyon apartment, for reasons which remain unexplained.
393 Each year, Nouria would mail or email to Mr Westcott a spreadsheet setting out all of the information he required to complete her tax returns. He would contact her if there was anything missing, or something seemed odd, but otherwise he did not independently verify the information she provided to him in summary form through receipts and banking records.[189] After he had prepared the draft tax return, he would spend an hour or an hour and a half going through each tax return with her before she signed the tax return for lodgement with the ATO. He would always ask Nouria if she had spent any money on repairs and maintenance for her investment properties.
394 Each of Nouria's tax returns for the relevant period included a rental schedule and a depreciation schedule for each of her investment properties, including the property, prepared by Mr Westcott based upon the spreadsheets provided to him by Nouria. Each rental schedule included, among other things, the following information:
(a) the number of weeks per year the property was said to have been tenanted;
(b) the rental income received by her; and
(c) the expenses associated with each property, including, among other things, council rates, land tax, water charges, repairs and maintenance costs, interest charges, and depreciation allowances.
395 The depreciation schedule which sat behind the depreciation allowances in the rental schedules included information about improvements made to the rental properties, including the date of the improvements and their cost.
396 Given the contents of the tax returns, and Mr Westcott's evidence regarding the process by which the tax returns were prepared, it is clear that Nouria is quite meticulous about financial record keeping, and has been careful to ensure that she could maximise deductions from her assessable income.[190]
397 Nouria's evidence is that when she provided her tax returns to her lawyers for the purpose of discovery in this proceeding, she instructed them that the information in the rental schedule said to be referable to the property was in fact information concerning the Lyon apartment. That is, she reported the rental income from the Lyon apartment and the associated expenses (including interest charges on a loan she said she took out for the purposes of renovating the Lyon apartment, but was secured by the property) as if they were attributable to the property.
398 Nouria's explanation for why she reported the income and expenses for the Lyon apartment in the rental schedules for the property is somewhat unconvincing. I understood her explanation to be that she felt that she was justified in doing so because as she was paying the land tax and other expenses associated with the property without receiving any income from the property, reporting the income and expenses associated with the Lyon property in her tax returns was one means of offsetting that burden. That explanation does not alter the fact that it was wrong for her to do so, and also does not explain why, if she was earning income from the Lyon apartment, as she said she did, she had not told either Mr Westcott or the ATO about the Lyon apartment.
399 These instructions caused Nouria's lawyers to contact Mr Westcott and ask him to prepare and submit to the ATO amended tax returns taking into account their new instructions. However, the only changes made in the amended tax returns was to delete the reference to income in the rental schedule for the property, but to include that income as being foreign source income elsewhere in the amended tax returns. The amended tax returns also include an additional depreciation worksheet for the 2006 tax year, reporting a bathroom renovation valued at $18,107 with the date of 1 July 2005. However, I accept that this was pre-existing information which had not been included in the copies of the original tax returns in evidence, but the depreciation allowance for those works had been included in the rental schedule for the property in the original tax returns: that is, this information had not been newly created during the process of preparing the amended tax returns in late 2022.
400 Ultimately, the misreporting of the status of the property in the original tax returns (which does not appear to have been completely rectified by the amended tax returns) is a matter between Nouria, Mr Westcott, and the ATO. However, it does appear on the face of the original tax returns that Nouria was able to negatively gear the property for much of this period. The rental schedules show losses associated with the property for the tax years between 2003 and 2012 totalling $99,782, which was deducted from her taxable income in those years, noting that in 2001 (the year the property was tenanted) and 2002 (the year Sultan and Marym moved into the property) the original tax returns report that Nouria made a profit from renting the property, thus increasing her taxable income.
401 Accordingly, the original tax returns provide some support for the theory that Nouria retained the title of the property for the purpose of obtaining a financial benefit. Marym submitted that Nouria's evidence that the income and expenses reported in the rental property schedule for the property were in fact referable to the Lyon apartment should be disbelieved. Rather, Marym contended that the coincidence between the rental income reported in the rental schedule and the rental payments certified by Nouria and provided to Centrelink for the purpose of claiming rent assistance was part of an overall scheme to provide a financial benefit to Nouria sufficient to explain the retention of title to the property by Nouria, despite having promised to give the property to Marym and Sultan.
402 However, there are a number of difficulties with Marym's case theory, which largely emerged from an analysis of the documentary evidence, including the tax returns themselves.
403 It is important to note the evidence of Mr Westcott to the effect that Nouria supplied him with all of the information regarding the income and expenses associated with the property herself in a spreadsheet with no supporting documentation. I also approach this analysis knowing that Nouria is financially astute, and, I expect, quite meticulous in her record keeping. Further, given that the figures in the returns for the expenses associated with the property are generally not round figures, they are almost certainly sourced from somewhere, although the absence of any primary records is explicable by the passage of time.
405 I have compared the expenses associated with the property and recorded in the returns for each of the relevant tax years with the primary records available in the evidence. My comments on each of the categories of income and expenses follow.
406 The tax returns record rental income of $15,600 in the 2001 tax year, consistent with the evidence given about what rental income was paid by the previous tenants. This dropped to $12,000 in the 2001 tax year, with the reduction presumably reflecting the period in which the property was vacant.
407 Thereafter, the tax returns record income of $13,200 for each tax year between 2003 and 2009, being the same amount Nouria said was struck by her with respect to the property in 2001. In the 2010 tax year, only half that amount was recorded. Nouria explained this by saying that the Lyon apartment was vacant for a period of time during this year. The rental income for the 2011 tax year rose to $12,000 in the 2011 tax year, and dropped to nil in the 2012 tax year. Nouria says the Lyon apartment was sold in 2012. No deductions for expenses associated with the property were claimed in the 2012 tax year or thereafter. Marym says that Nouria ceased including the property in her tax returns after she ceased claiming rent assistance as her income increased. However, that is inconsistent with the Centrelink documents, which show that Marym continued to receive rent assistance until the end of 2018.
408 I do, however, agree that the rental income shown in the tax returns must reflect the rental rate Nouria said she 'ruled' in 2001. I cannot accept Nouria's evidence that the income recorded was the income received from the Lyon apartment. It would have been an extraordinary coincidence for the amounts to be the same, and, given that the rent paid to Nouria was in euros, the rental income from the Lyon apartment would inevitably have varied from year to year with exchange rate fluctuations. I am prepared to accept, however, that the variance from the norm in 2010 and 2011 may have reflected changes in the occupancy of the Lyon apartment, and that the cessation of income in the 2012 tax year reflects the sale of the Lyon apartment. Given that Marym and her family occupied the property throughout the 2010 to 2012 tax years, there is no alternative explanation available to me on the evidence.
409 There is a full set of land tax assessment notices in evidence, making it possible to make a direct comparison between the land tax claimed in the tax returns and the land tax actually paid by Nouria with respect to the property.
410 In the 2001 tax year, the amount claimed by Nouria with respect to land tax was $493, compared with $338 actually paid. This may have been an error on her part, as in the 2001 tax year, the amount of $493 was claimed and paid.
411 Thereafter, the amounts in the tax returns referable to land tax and the amounts actually paid by Nouria with respect to the property diverged. No claim for land tax was made in the 2003 tax return, while $1,020 was paid. Thereafter, land tax was claimed in the tax returns, but not in the amounts actually paid by Nouria for land tax with respect to the property. The discrepancy was generally only in the hundreds of dollars, widening to over $1,200 in the 2009 and 2010 tax years, when $2,312 was claimed, but Nouria actually paid $3,571 in land tax. I very much doubt that Nouria would underclaim for land tax: it is clear from the evidence that her significant and growing land tax obligations were a source of irritation and worry.
412 Accordingly, the evidence regarding the land tax paid and claimed with respect to the property supports Nouria's contention that the expenses recorded in the tax returns were expenses associated with the Lyon apartment, not expenses associated with the property.
413 The comparison of the evidence regarding rates recorded in the tax returns with the amounts actually paid is a little trickier, because there is not a complete set of rate notices in evidence, and the records produced by the Council in response to a subpoena show the payments actually made and the method of payment, not the amounts actually assessed and billed. The Council records show that between 2004 and 2007 payments were made in irregular instalments at either the Windsor or Ashburton post offices, usually in round number amounts, and it appears that there may have arrears from time to time. The methods and patterns of payment were consistent with Marym's evidence that she and Sultan paid the rates until 2008, as I doubt that Nouria would have had any difficulty paying the rates in full as and when they fell due.
414 The state of the evidence makes it difficult to reconcile the rates payments recorded in the tax returns with the rates actually assessed by the Council for the 2003, 2004, 2006 and 2008 tax years, as there are no actual rate notices in evidence for the years prior to 2008. However, the information that is available also supports Nouria's contention that the information recorded in the tax returns regarding rates was referrable to the Lyon apartment. In the 2001 tax year, the rates claimed and paid were the same, being $867. Thereafter, the figures diverge, not by large amounts (generally only $100 - $200, but by $640 in the 2005 tax year, again to Nouria's disadvantage), save for in the 2010 tax year, where the amount claimed ($1,510) equals the amount assessed.
415 The information recorded in the tax returns for repairs and maintenance and depreciation expenses, on balance, also support Nouria's contention that the expenses claimed in the tax returns were referrable to the Lyon apartment, not the property, knowing what I now know about the nature, cost and timing of the renovations.
416 The following amounts were claimed by Nouria for repairs and maintenance in the tax returns:
417 The depreciation schedules record capital works said to have been carried out at the property. The 2001 depreciation schedule referred to carpets and kitchen cupboards, with an installation date of 1 July 2000. However, Mr Westcott explained that this date probably reflects the changeover from Nouria's previous accountant to him, rather than necessarily the date the expenses were incurred.
418 There was no change to the depreciation schedule until the 2006 tax year. The amended tax return for that year shows the sum of $18,107 for a bathroom on 1 July 2005. Council for Marym seized upon this discrepancy between the original tax return and the amended tax return, contending that Nouria had taken the opportunity to claim the cost of the bathroom renovations at the property during the amendment process. However, it became clear during the course of Mr Westcott giving evidence that this worksheet had simply been omitted from the original tax returns produced to Marym's solicitors by Nouria during the discovery process. Nouria gave evidence that this amount was referrable to the Lyon apartment. The renovation receipts show that the bathroom renovations at the property were largely carried out in the 2005 tax year, but some bathroom related expenses were incurred during the 2006 tax year. It is possible that the works referred to in the depreciation schedule for the property are in fact the works carried out at the property, but that begs the question as to why the expenses associated with the other works (such as the building of the extensions and the installation of the kitchen) were not claimed as well.
419 There was one further change to the depreciation schedule over the relevant period: an amount of $1,890 for the 2009 tax year for an air conditioner. Nouria gave evidence that she installed an air conditioner at the Lyon apartment in the 2009 tax year. There was no evidence from Marym or her children to the effect that an air conditioner was installed at the property in 2008 or 2009.
420 At a superficial level, the information in the tax returns regarding repairs and maintenance provides some support for Marym's contention that Nouria utilised her ongoing ownership of the property for her financial benefit. In the period including the 2002 to 2008 tax years, Nouria claimed $37,680 for repairs and maintenance, and a capital sum of $18,107 in the 2006 tax year for the purposes of calculating the depreciation allowance, which marries up with the period in which the renovations were carried out.
421 However, this proposition is not supported by closer analysis. First, as discussed in the previous section of these reasons, I agree with Marym's contention that the renovations cost significantly more than $55,000. Secondly, the nature of the renovations went far beyond repairs and maintenance, they were largely capital works, and Nouria would have been aware of the difference.[193] Thirdly, the contention that these claims were referable to the property was inconsistent with Marym's evidence that they gave the renovation receipts to Nouria at the end of the renovation project, not during the course of the project, and given the vagueness of Nouria's evidence regarding what she paid for the renovations and when. I consider that, if Nouria was indeed claiming the costs associated with the property rather than the Lyon apartment in her tax returns, she would have been very meticulous about retaining records and recording the expenses in full in the tax years in which they were incurred, and the tax returns would have recorded the works that were actually carried out at the property.
422 The tax returns contain deductions for interest charged on loans in each year of the relevant period. The claims were quite modest in the 2001 to 2005 tax years: $1,993 in 2001 - 2003, $1,540 in 2004 and $1,460 in 2005, consistent with a declining principal sum, possibly in the order of $15,000 in 2005.[194] The claim for interest rose to $6,652 in the 2006 tax year, $12,300 in the 2007 tax year, and jumping to $22,950 in the 2008 tax year, continuing at that level in the 2009 and 2010 tax years, before declining a little to $20,712 in the 2011 tax year. Given that the amounts paid in respect of interest were deductible from Nouria's taxable income, Marym is correct to say that Nouria enjoyed the benefits of negative gearing, particularly in the latter part of the period in question. It is not at all clear from the evidence that the loans taken out by Nouria and secured against the property were used for the purpose of generating taxable income.[195]
423 The only other expenses recorded in the tax returns are gardening expenses ($590 in each of the 2001 and 2007 tax years), insurance, and agent's fees of $1,920 in the 2009 tax year. Claims for gardening expenses in 2001 and 2002 are consistent with the property's occupation by arm's length tenants in those years. It is inconceivable that Nouria could have incurred agent's fees for the property in the 2009 tax year, which again supports Nouria's contention that the expenses claimed in the tax returns were referrable to the Lyon apartment, not the property. Further, there is no evidence that Nouria paid insurance premiums with respect to the property, save for a document in the courtbook which suggested that she first took out insurance on 1 March 2020.
424 The following emerges from the evidence of Mr Westcott and my analysis of Nouria's tax returns:
(a) Nouria is meticulous and well organised about her financial affairs, and has access to sound taxation advice;
(b) she prepared all of the information included by Mr Westcott in the tax returns, such that her provision of information for inclusion in the rental schedules for the property in the tax returns was deliberate, not inadvertent;
(c) contrary to Nouria's evidence, I accept that it is more likely than not that the conformity between the rental income for the property reported in the rental schedules and the amount reported to Centrelink by Marym is not a coincidence;
(d) however, I accept that the rates, land tax and other expenses (save for interest) reported in the rental schedules for the property (save for bank interest) were referrable to the Lyon apartment, not the property; and
(e) Nouria reduced her tax liability by approximately $100,000 between the 2003 and 2012 tax years by reporting income and expenses for the property in the tax returns, with most of the benefits obtained from the 2006 tax year, nearly five years after Marym and Sultan moved to the property. However, over the same period, she paid land tax and rates[196] for the property of approximately $33,000 which she would not have had to pay had she transferred the title to the property to Marym and Sultan: that is, she received a net benefit by her retention of the property of approximately $67,000 over 10 years, or about $6,700 per year, not taking into account any water connection fees paid by Nouria with respect to the property during that period, which in any event are likely to have been relatively modest.
425 Accordingly, it is correct to say that Nouria obtained a financial benefit from retaining the title to the property, and representing to the ATO that it was tenanted. She also had the opportunity to utilise the equity in the property to raise funds for her own purposes.
426 However, it seems to me to be substantially overstating the position to say that the evidence regarding the tax return issue proves that Nouria, having given or promised the property to Marym and Sultan, deliberately refrained from transferring the title to them for the purpose of obtaining a reduction in her liability to pay tax of approximately $6,700 per annum,[197] with that benefit ceasing entirely after the 2012 tax year. Rather, the evidence concerning the tax return issue, along with the evidence regarding Marym's claims for rent assistance, is more consistent with there being a tenancy arrangement between Nouria and Marym and Sultan than it is with Marym's case theory. Alternatively, this evidence is also more consistent with Nouria's public statements that she intended to transfer the property to the children when they grew up, and that Marym and Sultan could live there in the interim.
427 I accept that it is more probable than not that Nouria knew that Marym was claiming rent assistance, at least up until about 2010, and probably signed the rent certificates submitted by Marym up until about that time, and that was why, at least until the 2010 tax year, the rental income shown in the tax returns mirrored the amount that Marym told Centrelink she was paying in rent for the property.
428 Marym contended that Nouria needed her to claim rent assistance so that the information in the tax returns was verified by the information reported to Centrelink in the event that there was an cross-matching of data between the ATO and Centrelink. However, it seems to me that the converse is true. Not every tenant in Australia receives rent assistance: indeed, probably the majority of tenants do not receive rent assistance. If the ATO raised any queries as to whether Nouria was in fact receiving rent for the property, the information reported to Centrelink would provide supporting, but not conclusive evidence that rent had been paid. The best evidence that rent had been paid would be banking records or other evidence of payments actually being made.
429 On the other hand, while not every tenant paying rent receives rent assistance, every recipient of rent assistance must, it follows, be able to establish, if questioned, that they are in fact paying rent. Accordingly, the inclusion of the amounts reported to Centrelink in Nouria's tax returns would support Marym's claims for rent assistance, and indeed, if Nouria's tax returns did not include the exact amount reported to Centrelink in the rent certificates, then red flags would be raised, but they would be red flags in relation to Marym's claims for rent assistance, not Nouria's tax returns. I expect that Nouria would understand this, and that is why I expect the amounts recorded for rent matched the amount reported to Centrelink, at least until the 2010 tax year. My conclusion regarding this matter is consistent with Mr Westcott's evidence to the effect that if the Commonwealth Government was paying a tenant, then they would want to see the receipt of the declared rental income in the landlord's tax return.
430 I believe that one of the reasons why Nouria knew the exact amount to report and why she needed to keep reporting annual rental income for the property of $13,200 in her tax returns was because she signed the rent certificates, at least until the 2010 tax year, and that her evidence that she signed only one rent certificate was false. She did so, because, in her own words, Marym and Sultan were unemployed, and it gave them a few extra dollars.
431 There are three reasons why I do not accept Nouria's evidence that she signed only one rent certificate. First, the reference in her evidence under cross-examination to signing 'forms'.[198] This may have been a mistake, but this evidence is consistent with the reference in Schedule 2 of her first affidavit of documents to 'Marym Salehi's Centrelink application for Rent Assistance forms dated on or about 2001 and 2007'. While this is expressed a little oddly, Nouria has deposed to there being more than one form, and, in the body of the affidavit of documents, Nouria deposed as follows:
Documents numbered 1, referred to in Schedule 2, were last in my possession, custody or power on or about the date they bear. I have not retained the originals and do not have access to these documents. I believe that the originals were delivered to Marym Salehi after I signed these documents and that they are now in her possession.
432 While I accept that Nouria's affidavit of documents was most likely drawn by her solicitors, no doubt they were drawn upon her instructions. However, at trial, Nouria was adamant that she only signed one rent certificate.
433 Finally, as previously observed, the Centrelink documents contained a record of a conversation between Marym and a Centrelink officer on 16 April 2004. The narration provided as follows:
'Cus adv that landlord is overseas and will be able to return Rent Cert to [indistinct] in 2 weeks time.'
434 The dates and timeframes in this record accord perfectly with the dates the travel records show that Nouria was out of the country in April 2004. If Nouria's evidence about signing one rent certificate is correct, then the necessary implication is that Marym provided forged rent certificates to Centrelink on a regular basis for many years thereafter. If that was in fact the case, then why would Marym need to tell Centrelink that there was a delay in providing the rent certificate because her landlord was overseas?
435 Finally, if I was to accept Nouria's evidence that she signed only one rent certificate, I would be, by necessary implication, making a finding that Marym had forged Nouria's signature on the rent certificates she submitted to Centrelink. That is, as well as making false claims for rent assistance, Marym supported those claims by creating false documents. That is a very serious finding to make, and it is a finding I am not prepared to make given the evidence to the contrary outlined above, and given that it was not put to Marym that she forged Nouria's signature on the rent certificates.
436 So, what changed in the 2010 tax year, when the amount reported as income in the rental schedule for the property dropped to $12,000? The 2010 tax year is the first year for which any of Marym's tax records are in evidence. I can infer that prior to this time, Marym had not been submitting tax returns, perhaps because her income did not meet the threshold where any liability to pay income tax arose.
437 However, Marym's taxable income in the 2010 tax year was assessed by the ATO as being $33,414, or well over the threshold. It was also in 2010 that Marym purchased her first investment property, consistent with there being an improvement in her financial position. Nouria may have believed, or may have been told by Marym that she was no longer eligible for rent assistance. Marym's evidence is that Nouria did not sign any rent certificates after 2010 or 2011, because Centrelink no longer required the lodgement of regular rent certificates. I find that evidence unconvincing, but in any event, it seems that by the time Nouria gave Mr Westcott instructions to prepare her tax return for the 2010 tax year, she may well have believed that it was no longer necessary for her tax returns to reflect the notional rent she struck for the property. It may well have been from that time she began to report the income as well as the expenses associated with the Lyon apartment, and once the Lyon property was sold, she no longer reported any rental income from the property in her tax returns.
438 That Nouria believed that, after about 2010, Marym was not in receipt of rent assistance is consistent with her evidence during the trial that she had only known about Marym's receipt of rent assistance for about three months. That was plainly incorrect, as Marym's receipt of rent assistance was known to Nouria at least from about November 2001, and was referred to in Nouria's solicitor's letter of 23 November 2020. However, it may have been only during the course of the discovery process that Nouria learned how much Marym had received in rent assistance during the course of her occupation of the property, and for how long.
439 In conclusion, while the tax return issue and Marym's receipt of rent assistance does not reflect well on either party, these matters do not, as contended for by Marym, support her contention that Nouria promised to give her and Sultan the property, but delayed the transfer of the title to them to reap the tax advantages associated with negatively gearing the property. Rather, my findings regarding these matters are far more consistent with Nouria's version of events: that is, she reached an agreement with Sultan that he and his family occupy the property, and they agreed that he would pay rent.
440 Ultimately, however, if the position regarding the tax return issue was as contended for by Marym, then there was no reason for Nouria to cease including the property in her tax returns after the 2011 tax year. The financial burden upon Nouria of retaining the property had not diminished: indeed, it had increased, as she had paid the rates since 2008, and Nouria's land tax burden steadily increased over time. If the rationale behind Nouria's retention of the title was to obtain a significant tax advantage, then there was no reason why she would not continue representing to the ATO that the property was tenanted after 2011. Further, Nouria's inclusion of the expenses associated with the Lyon apartment in the tax returns is inconsistent with Marym's case theory, particularly given the significant tax benefits which would have accrued to Nouria had she claimed the costs associated with the renovations in her tax returns.
441 Accordingly, while the tax return issue and the Centrelink documents generated some interlocutory disputes, consumed a considerable amount of time at trial, and cast doubts on the credibility of both women, its resolution did not materially advance Marym's primary claim in this proceeding. To the contrary, my findings in relation to the tax return issue, while not conclusive of the matter, are consistent with there being discussions between Nouria and Sultan and/or Marym regarding rent, and as such, are not consistent with Nouria making representations to them that she would transfer the property to them. Alternatively, my findings regarding the tax return issue are also consistent with Marym believing in 2001 that ultimately (but not until at least 20 years later) the title of the property would pass to her children, but that in the meantime, she could take advantage of the title remaining in Nouria's name by representing to Centrelink that she was paying rent for her occupation of the property, and Nouria could obtain the benefit of negatively gearing the property, at least from 2006. However, I am not in a position to make a positive finding in that regard, or any positive finding that Nouria promoted or acquiesced in such a scheme.
442 In my view, is quite clear from the evidence that while Nouria acquiesced in the renovations being undertaken, she did not actively encourage Sultan and Marym to undertake the renovations. It is clear from Marym's own evidence that the driving force behind the renovations was Sultan. Whether that was at Marym's behest or urging, or because he was keen to do the renovations himself is somewhat beside the point, as it is Nouria's conduct that is relevant to Marym's claim in this proceeding. I am satisfied that the renovations were not done at Nouria's behest.
443 During the course of the trial, Nouria consistently maintained that she was opposed to Sultan carrying out the renovations, not only because of his ill-health, and because Sultan was not qualified to carry out the renovations, but because she considered the property to be perfectly habitable as it was, noting that the previous tenants, a doctor and his family, had lived at the property for many years without complaint. She said she simply wanted Sultan to relax and enjoy living in the property with his family. She accepts that on occasion she told Sultan to hurry up and finish the renovations, but she did so because she did not want him and his family, especially the children, living amongst such a mess, not because she wanted the renovations done in the first place. She gave evidence that she even offered to engage a builder who had been working on another property of hers to finish the project, but that Sultan, who was proud and stubborn, refused this offer, because he wanted to complete the renovations himself.
444 I accept Nouria's evidence that she believed that the property was in an at least acceptable condition when Sultan and Marym moved into the property, and that the last thing that Nouria contemplated or would have wanted, given her knowledge of Sultan's poor health and limited life expectancy, would be that he would spend several years renovating the house on the property, often undertaking heavy manual labour to do so. I accept that she had no involvement in the process of drawing up plans and applying for building permits, and that the funding that she provided for the renovations was not indicative of any particular support for or involvement in the renovations.
445 I accept that Nouria was not aware of any renovations carried out by Sultan until after they commenced, although it seems, once they had commenced, she accepted that a fait accompli that they would be done. I accept her evidence that she felt that she could not force Sultan to stop the renovations, presumably because of their close relationship, and his reported stubbornness. I accept that, to the extent that she encouraged Sultan and Marym to complete the renovations, she did so because of the family's difficult living conditions while the renovations remained incomplete. I accept Ms Mershedi's evidence that she urged Sultan to cease working on the renovations because of her and Nouria's concerns about his health, and it was in that context that Nouria made an offer to Sultan to engage a builder to complete the renovations.
446 However, while I accept that Nouria did not encourage Marym and Sultan to embark upon the renovation project, and any encouragement by her was limited to urging Sultan to hurry up once the renovations were underway, I do accept that she acquiesced in the renovations. I do not accept that she rarely visited the property for a number of years: her brother Aref says she was there on almost a weekly basis. Given the nature of the works being carried out, including the construction of substantial extensions, she could have hardly failed to notice what was going on. She herself said that the house was 'all upside-down'. I do accept that the main reason why she acquiesced in the renovations was that once they were well under way the only way to end the disruption and dislocation they caused was to complete them.
447 However, in order for Nouria's acquiescence in the carrying out of the renovations to have any legal consequences, Marym must do more than establish that Nouria knew about the renovations, and broadly, of their nature and scope. She must also establish that, as discussed in paragraph 211 of these reasons, that Marym and Sultan carried out and paid for the renovations on the strength of an assumption they held about the ownership of the property, and that Nouria failed to disabuse them of this assumption until after the renovations were completed.
448 As discussed earlier in these reasons, I accept that Marym and Sultan genuinely believed that they or their children would obtain an interest in the property, but that Marym has not established that this belief was induced by any representation made by Nouria to her. Indeed, to the extent that Nouria made any representation to anyone, it was more likely than not to have been made to Sultan alone, and have been along the lines that the property would ultimately pass to his children, consistent with the public pronouncements Nouria made at around the time Sultan and Marym moved into the property.
449 I also accept that Marym and Sultan carried out the renovations, not just because they wanted to improve their living conditions, but because they expected that, at the very least, they would be occupying the property indefinitely, and also because of their belief that the property would ultimately pass to them or their children. I accept Mr Musleh's evidence that Sultan told him that ultimately Wais would occupy the master bedroom suite after he married, and Ms Shapoor's evidence that he told her that he was doing the renovations for his children's future. That evidence is consistent with a belief on Sultan's part that the ownership of the property would ultimately pass to his children.
450 I also accept that Nouria knew that Sultan and Marym believed that they or their children would ultimately acquire an interest in the property, based upon the evidence of the public pronouncements made by Nouria at around the time Marym and Sultan moved in the property.
451 To recapitulate, I accept the evidence given by the witnesses called by Marym as to what Nouria was telling other family members at the time that Sultan and Marym moved into the property, that is, that they could live at the property indefinitely, and when the children grew up, the title to the property would pass to the children.
452 Given the evidence given by all witnesses to the effect that the Salehi siblings were close, met regularly, and freely discussed their affairs amongst themselves, I consider that it would have been highly unlikely that Nouria would be telling other family members anything different than what she had told Sultan. Accordingly, I accept that, as at late 2001, before the commencement of the renovations, Nouria knew that Sultan and Marym had certain assumptions about the ultimate ownership of the property.
453 Nouria may not have known that Marym believed, on the basis of what she was told by Sultan, that the property would be transferred to her and Sultan, rather than to the children when they grew up, but I do not consider that this is fatal to Marym's claim. I do not read the authorities following the decision in Ramsden v Dyson[199] as requiring a complete alignment between the assumption that Sultan and/or Marym acted upon and the assumption that Nouria believed they held regarding the ownership of the property. Given if that assumption was to the effect that the property would ultimately be transferred to the children, it was still an assumption about the future ownership of the property.
454 In Plimmer v Mayor of Wellington[200] the Privy Council held that the plaintiff had built and improved a jetty in Wellington harbour. The Privy Council held that the conduct of the government in encouraging the plaintiff to carry out these works was 'sufficient to create in his mind a reasonable expectation that his occupation would not be disturbed.'[201] This was described by the authors of 'Meagher, Gummow and Lehane's Equity - Doctrine and Remedies'[202] as an equitable interest of 'a special and idiosyncratic character.'[203]
455 While in Plimmer v Mayor of Wellington,[204] the Privy Council followed the decision in Dillwyn v Llewelyn,[205] that is, it found an estoppel by encouragement, there seems to me to be no reason in principle not to adopt a similar degree of flexibility in the 'standing by' cases. If Sultan and Marym funded and carried out improvements to the property based upon an assumption that they would occupy the property indefinitely, and that in some years time, the title to the property would pass to their children, and Nouria knew of that assumption, the effect of that knowledge on Nouria's conscience ought be the same: that is, it would be prima facie unconscionable for Nouria to retain the benefit of the improvements were she to not give effect to their assumption. Any disconformity between the assumption or assumptions under which Sultan and/or Marym were labouring and the assumption under which Nouria believed they were labouring may well be relevant to the characterisation of the equitable interest concerned, and the appropriate remedy, but they are still assumptions with respect to the ownership of the property. In my view, proceeding on this basis is consistent with the authorities referred to earlier in these reasons to the effect that the expectations engendered by the estopped party's conduct may not be able to be defined with precision, but any lack of precision will determine the extent to which it is unconscionable for the estopped party to exercise its rights inconsistently with the expectation.
456 That Nouria knew that Sultan and Marym were labouring under an assumption that, at the very least, the title of the property would ultimately pass to their children is, in my mind, reinforced by the fact that, for reasons which remain unexplained, the title to the property was the subject of discussion no later than April 2008, during the family gathering after Sultan's death, and my acceptance of the evidence given by Marym, Mr Musleh and Ms Samad about what Nouria said she planned to do with the property. Further, in her later discussions with Wais and Zahra, Nouria evaded the issue of what she would do with the property, rather than expressly denied having made any promises to anyone about the property.
457 Further, the very fact that Nouria acquiesced in the conduct of the renovations, given the scale and scope of the renovations in circumstances where I have found that Marym and Sultan funded the majority of the costs associated with the renovations, lends support to the proposition that Nouria knew of their mistaken assumption as to the future ownership of the property. Nouria was undoubtedly concerned for Sultan's well-being, and no doubt that concern would have extended to his financial well-being. She said that she urged Sultan not to do the renovations, and Ms Mershedi said she also did so on Nouria's behalf. But both women said they did so by reason of their concerns for Sultan's health. They did not give evidence that they tried to persuade Sultan to stop the renovations on the basis that he was spending time and money on a property that neither he or his family had any claim to or financial interest in.
458 That omission is somewhat telling, given that Nouria must have known that Sultan and Marym were funding at least part of the cost of the renovations. Nouria is financially sophisticated, and she gave evidence that in February 2003 she offered to engage a builder to help Marym and Sultan finish the renovations. The builder concerned was a builder working on one of her properties. I find it very difficult to believe that Nouria did not have an understanding, at least in broad terms, of the costs involved in building works, and I have already found that she was aware of the scope of the renovations.
459 Given my findings that Nouria commenced giving Sultan financial assistance to complete the renovations sometime in 2004, when works had been underway for two years, she must have known that Sultan and Marym were bearing a substantial proportion of the costs, as well as the disruption and inconvenience of the renovations.
460 I accept that my findings regarding what Nouria knew or believed about the nature of the expectation held by Marym and/or Sultan differ somewhat from the matters pleaded in Marym's statement of claim.
461 Paragraph 6B of the second further amended statement of claim provides as follows:
By Nouria's conduct (including by her acquiescence), she:
(a) encouraged expenditure by way of monies and labour (including by way of the Representation) that Marym and Sultan would receive an interest in the Property by way of a benefit in return (being absolute ownership of the Property); or
(b) by her acquiescence, induced the expenditure (monies and labour) by Marym and Sultan in the expectation that an interest in the Property would be conferred (being absolute ownership of the Property).
462 However, I do not see how the pleading by Marym of, in effect, a different expectation is fatal to Marym's claim. I repeat my earlier observations to the effect that the authorities treat any lack of precision or certainty regarding the expectation engendered by the conduct of the estopped party as going to the question of whether it would be unconscionable for the estopped party to not give effect to that expectation, and the appropriate remedy. In my view, a similar approach should be taken where there is an apparent disconformity between the expectation held (and pleaded) by Marym and the expectation that Nouria believed Marym and Sultan held about their interest in the property. It seems to me that the critical element of this cause of action is Nouria's knowledge of an expectation as to the current or future ownership of the property, not the precise nature of that expectation. The authorities are replete with examples of cases where relief has been has been granted with respect to imprecise expectations or idiosyncratic equitable interests in property.
463 Further, my finding that Nouria believed that Marym and Sultan carried out the renovations in the expectation that the title of the property would ultimately pass to the children is based upon what I considered to be the best fit of the facts as found at trial. I note the following observations of Nettle JA in Donis v Donis[206] in response to the submissions to the effect that the trial judge erred in allowing the claimant to adduce evidence regarding unpleaded particulars of detriment, and that the appellants were taken by surprise by the emphasis which was placed upon the evidence of that detriment:
In my view, that contention should also be rejected. It is true that there never was an application to amend the statement of claim to include the un-pleaded elements of detriment. With respect, the judge should have insisted that the matter be attended to. As Priestley JA said in Wong v Mura, if issues not apparent from the pleadings are allowed to be litigated at a trial, the terms on which it is permitted should include an order that the pleadings be amended accordingly. Nevertheless, authority is clear that failure to amend does not necessarily preclude a judgment upon the facts as have emerged. It is necessary to look at the actual conduct of the case to see whether the point was taken at trial. And in this case it is plain that from the first day of the trial to the last the matters now complained of were squarely in issue.[207]
464 It was never part of Marym's case that Nouria was obliged to transfer the property to her children when they grew up. However, she relied upon what Nouria told other family members about the future ownership of the property, and the discussions between Nouria and Wais and Zahra to support her claim to an equitable interest in the property. These matters were referred to in the particulars of her statement of claim, and in the outlines of evidence filed on her behalf. Accordingly, Nouria was on notice that it was part of Marym's case that she had made public statements to the effect that she intended to transfer the property to the children. Of course, it was never part of Nouria's case that Marym's claim should fail because the beneficiaries of any trust created by Nouria's words or conduct were Marym's children, not Marym. But, in the end, I have to deal with the facts as found. However, it was not immediately apparent to me during the course of the running of the trial that these would be the facts that would ultimately be found.
465 In conclusion, I find that Nouria acquiesced in the carrying out of the renovations knowing that Marym and Sultan laboured under what ultimately proved to be a mistaken assumption as to the future ownership of the property. The question of what, if any remedy is available to Marym given my findings in that regard, along with my observations regarding the standing issue, my finding to the effect that Sultan and Marym paid two-thirds of the costs associated with the renovations, and Nouria's contention that any equity in the property raised by her words and/or conduct has been satisfied by the benefits Marym derived from the ongoing occupation of the property, will be considered later in these reasons.
466 As noted earlier in these reasons, the parties did not devote much attention to whether there was a common intention constructive trust.
467 I consider that my factual findings give rise to at least an argument that there was a common intention constructive trust, but not the common intention constructive trust pleaded by Marym. Contrary to my observations regarding the estoppel raised by Nouria's acquiescence in the renovations, given that the existence of a common intention is the fundamental element of this cause of action, the failure of the evidence to establish the common intention pleaded by Marym is fatal to Marym's claim that she is a beneficiary of a constructive trust of this kind.
468 In her statement of claim, Marym pleaded that Sultan, Marym and Nouria formed the common intention that Nouria held her interest on trust for the benefit of Marym and Sultan. However, in my view, to the extent that Nouria had any intentions with respect to the future ownership of the property, I believe that those intentions were to the effect that she would ultimately transfer the title of the property to the children. I also consider that this was probably also Sultan's understanding of Nouria's intentions, and, indeed, the matters relied upon by Marym and said by her to be matters from which the pleaded common intention could be inferred are matters which support a common intention (or at least an intention common to Sultan and Nouria) that the property would ultimately pass to the children.
469 However, I cannot be satisfied on the evidence that this intention was common to Nouria and Marym, given that I accept Marym's evidence about what Sultan told her during the telephone conversation when she was in Europe in August 2001. The evidence about what was said by Nouria in her public pronouncements about her plans for the property does not allow me to safely conclude that Marym came to understand that it was her children, not her and Sultan, that would have an interest in the property, at least not before 2008, by which time the renovations were complete.
470 It is arguable that if the requisite common intention could have been established (and was pleaded), the other elements required to find the existence of a constructive trust of this nature as set out in paragraph 215 of these reasons may well have been able to have been established. However, Marym would face an additional hurdle, based upon the facts as found: the proper beneficiaries of the trust would be the children, not her and Sultan, which once again raises the question of her standing to bring the claims she makes in this proceeding.
471 In summary, I have made the following findings regarding Marym's claims in this proceeding:
(a) Nouria did not make any representation to Marym to the effect that she would transfer the title to the property to Marym and Sultan;
(b) Nouria made a representation to Sultan that he and Marym could live at the property indefinitely, and said words which led him to believe (reasonably or otherwise) that Nouria would ultimately gift or bequeath the property to his children, consistent with the public pronouncements she made at that time;
(c) Nouria did not encourage Marym and Sultan to carry out the renovations, at their expense or otherwise;
(d) however, Nouria did acquiesce in the carrying out of the renovations knowing that Sultan and Marym were proceeding in accordance with certain assumptions with respect to the ultimate ownership of the property which ultimately proved to be mistaken; and
(e) Marym and Sultan paid for two-thirds of the costs of the renovations, being $156,510, and suffered the inconvenience associated with the renovations for approximately three years. It is not possible on the evidence to estimate the value of Sultan's unpaid labour.
472 Marym relied upon the decision of the High Court in Sidhu[208] to support her contention that Nouria should be compelled to convey the property to her. I accept that where a person's expectations concerning their interest in the property have been induced by the words and conduct of the legal owner of the property, and that person has relied upon that expectation to their detriment, the prima facie remedy available to that person is to give effect to that representation or expectation.
473 However, there are a number of reasons why ordering a conveyance of the property to Marym would be an inappropriate remedy in all of the circumstances. First, the standing issue means that in the absence of any claim by someone capable of bringing a claim on behalf of Sultan's estate, and in the absence of any evidence or argument on the matter, I cannot be satisfied that I should depart from the presumption in equity that co-owners hold their interests in property as tenants in common in equal shares. Accordingly, the high point of Marym's claim would be an entitlement to a declaration that Nouria holds a half share of the property on trust for Marym.
474 However, here Marym faces the hurdle that I have found that, to the extent that Nouria knew that Sultan and Marym held certain assumptions with respect to the ownership of the property, I consider that it is more likely than not that Nouria would only have expected them to assume that they had the benefit of long term occupancy of the property, and that the title to the property would ultimately pass to the children. Accordingly, while Nouria's conduct in acquiescing to the renovations raised an equity in favour of Marym, it is not an equity of a kind which would justify the declaration of a constructive trust over part or all of the property in favour of Marym.[209]
475 Rather, the appropriate remedy is a monetary award of equitable compensation. While orders have been made that the quantum of any equitable compensation be determined in a separate hearing, I will make some observations regarding the basis upon which equitable compensation should be awarded later in these reasons.
476 To pause here, during the course of the trial, counsel for Nouria made a submission to the effect that no order for equitable compensation could be made, because Marym had not pleaded the necessary elements of a claim for equitable compensation. Reference was made to submissions being made before Matthews AsJ during the course of a pre-trial hearing on 21 October 2022, and to Marym's legal team having failed to take an opportunity to amend her statement of claim to plead matters in support of her claim for equitable compensation.
477 I do not, with respect, understand this submission. I do not have access to the transcript of any such hearing, and the submissions made in that regard have not been repeated before me. The only reference I can find in the evidence is a statement in some written submissions filed on behalf of Marym in an application she made to adjourn the trial to the effect that Marym intended to seek leave to make a minor amendment to her statement of claim to seek compensation for any increase in value that the renovations generated to the property. As far as I am concerned, a claim for equitable compensation, perhaps secured by a charge over the property, is a completely orthodox claim to make, and the facts relied upon to claim an equitable interest in the property can also be relied upon to support the lesser relief of equitable compensation. Indeed, that was the approach of the High Court in Giumelli v Giumelli[210] and the Court of Appeal in Mainieri v Cirillo,[211] where the interest of third parties or practical considerations made it inappropriate to order a conveyance of the relevant property to the successful claimant.
478 Further, the order of Matthews AsJ made on 21 October 2022 that the question of the quantum of Marym's equitable compensation claim be tried after the trial of the balance of the proceeding seems to presume the availability of that remedy. I do not consider that it was necessary for Marym to apply to amend her pleading in the manner foreshadowed by her counsel. Ultimately, the basis upon which any equitable compensation will be calculated will be shaped by the facts as found.
479 Accordingly, I shall proceed on the basis that it is open to me to make an order for equitable compensation in favour of Marym. The question remains whether I should make such an order, and if so, upon what basis, and upon what conditions.
(a) whether any equitable compensation should be referable to the expenditure of the renovations alone, or whether I should also take into account Marym's contention that by moving into the property and spending their savings on the renovations, Marym lost the opportunity to acquire a property of her own;
(b) whether, as contended for by Nouria, the benefits that Marym acquired from her occupation of the property, rent free, for over 20 years completely outweighed any detriment incurred by her, analogous to what was held in the decision in Sledmore v Dalby,[212] or, perhaps more accurately, those benefits extinguished any equity raised by Nouria's conduct; and
(c) whether any condition should be imposed upon the grant of any relief to overcome the contention that Marym had failed to come to Court with clean hands, by reason of her receipt of rent assistance to which she was not entitled.
481 Turning first to the question in (a) above, I accept that the authorities caution against awarding a remedy based upon reversing the detriment incurred by a party induced by an expectation as to an interest in land, on the basis that detriment is an element of a cause of action in proprietary estoppel, and is not to be equated with concepts such as consideration in contract. But, ultimately the appropriate remedy is what is necessary to address the unconscionable conduct of the estopped party in failing to give effect to the expectation. In some cases, reversing the detriment may well be an appropriate remedy.
482 In relation to the loss of opportunity issue, Marym gave evidence that if she had not moved into the property under the mistaken assumption that the property would be transferred to her and Sultan, she and Sultan would have used their savings to put towards a deposit for a property of their own, and that she would now own an unencumbered property valued at approximately $1.5 million.
483 That may well be the case. But I cannot be satisfied, on the evidence as it stands, that that is what would have occurred, such as to justify making an award of equitable compensation in a sum equivalent to the difference between the value of the hypothetical property and what Marym and Sultan would have paid for that property by way of a deposit, mortgage repayments, and rates and other costs associated with home ownership. The onus of proof with respect to a counter-factual of that kind rests with Marym, and she has not discharged that onus.
484 First, like Nouria, I have some scepticism as to whether Marym and Sultan would have been able to find a lender willing to lend to them to purchase a property, at least before 2010 when Marym started earning more income from her employment. Secondly, even if they could have borrowed money to purchase a property, I would need to have far more evidence about the availability of properties they could have purchased, the current value of any property they could have purchased, and the costs of acquisition of that property to even begin such a quantification exercise. And thirdly, that quantification exercise would have to take into account the fact that Marym has been able to buy and sell investment properties which she may not have been able to acquire had she been paying a mortgage on a home of her own, or paying rent for another property. Basing any equitable compensation upon Marym's asserted lost opportunity would involve accepting a counterfactual which would be speculative in the extreme.
485 Accordingly, the soundest basis for making an award of equitable compensation is making an award based upon the costs of the renovations to Marym, and the benefits of the renovations to Nouria. However, the question remains as to whether any equity raised in Marym's favour has been satisfied by her ongoing occupation of the property rent-free for nearly 22 years.
486 In my view, it has not. On Nouria's own case, Nouria was quite content to have Marym and her family living at the property rent free until December 2018 at the earliest, although I accept that she was becoming increasingly disgruntled with bearing the costs associated with holding the property.
487 I agree with the submissions advanced on behalf of Nouria that in assessing the basis for and the value of any remedy available to Marym, it is necessary to compare the benefits to Marym and the costs to Nouria of Marym's continued occupation of the property.
488 However, while I accept that Nouria incurred holding costs associated with Marym's ongoing occupation of the property, she also enjoyed ongoing benefits from her retention of the property, being the capital gains associated with being a passive investor.
489 As discussed earlier in these reasons in the context of the tax return issue, during the first decade of Marym's occupation of the property, Nouria's continued retention of the property provided a benefit to her because the holding costs of the property and the additional rental income declared by Nouria in her tax returns were more than defrayed by the deductions claimed by her for the expenses associated with the Lyon apartment and the interest on the loan taken out by her in 2006 and secured by the property.
490 While there is no evidence regarding the market value or rateable value of the property over much of this period, the land tax assessment notices in evidence show that between December 2001 and December 2011, the unimproved value of the property increased by $495,000, that is, the value of the property increased, on average by approximately $50,000 per annum. Of course, the growth in the improved value of the property would have presumably been greater by reason of the increase in the value of the property as a result of the renovations.
491 After 2012, Nouria's retention of the property no longer generated a financial benefit for her, because she was no longer claiming the deductions for her interest expenses and expenses associated with the property in her tax returns. However, as will be explained further, during this period up until the date she demanded that Marym vacate the property in late 2019, the capital gains associated with the property exceeded the costs to her of retaining the property.
492 The rate notices in evidence show that, as of June 2010,[213] the capital improved value of the property[214] was $865,000. In June 2019, the capital improved value of the property was assessed at $1,545,000, or an average increase of $75,555 per annum. Over the same period, Nouria paid rates and land taxes with respect to the property of $45,363.92, or approximately $5,000 per annum.
493 Of course, I accept that during this period Nouria was deprived of the benefit of being able to generate income from the property. However, even on her own case, that was always going to be the case, by reason of the commitment she made to Sultan before he died. By sacrificing the rental income from the property, she derived the non-financial benefit of knowing that Sultan's widow and children had secure accommodation during a vulnerable period. To some degree, pointing to the costs incurred by Nouria by reason of Marym's ongoing occupation of the property is an arid exercise, because it presumes a counter-factual that, on Nouria's own case, was never going to happen. And, in any event, Nouria has enjoyed the benefit of substantial capital gains over this period.
494 Those capital gains have been contributed to by the renovations to an as yet unquantified extent. Of course, ultimately Nouria will have to pay capital gains tax when she sells the property, but, as previously noted, the cost of the renovations will be able to be added to the cost base for the property when the property is ultimately sold.
495 As for the benefits accruing to Marym from her rent free occupation of the property, as discussed in more detail later in these reasons, these benefits are best measured by looking at her asset position as at the time Nouria demanded that she vacate the property, rather than ascribing a value based upon a notional rent for the property. By October 2019 Marym had acquired substantial equity in her two investment properties. However, this would have to be offset against the loss of opportunity for Marym to purchase her own home. Indeed, the value of her investment properties is probably the best proxy for the value of her lost opportunity, such that the two factors cancel each other out.
496 Accordingly, I consider that any award to Marym should be founded on the contributions made by her and Sultan to the costs of the renovations, namely two- thirds of $156,510, or $104,340. The question remains as to whether Nouria should be required to refund that payment (perhaps with interest, subject to submissions upon that point), or whether any award should reflect the contributions the renovations made to the value of the property, which would need to be the subject of expert evidence.
497 Conceptually, the latter measure seems more sound. The authorities following the decision in Ramsden v Dyson[215] refer to the relevant unconscionable conduct of the estopped party which equity seeks to ameliorate as being the conduct of the estopped party in standing by and profiting from the expenditure on improvements to the property by another party labouring under a mistaken belief as to the ownership of land. Further, that measure of damage may be fairer to Nouria, given the time which has elapsed since the renovations were completed, because as a matter of logic, the contribution of the improvements effected by the renovations to the value of the property will have diminished over time, as no doubt a substantial proportion of the increase in the value of the property will be attributable to increases in the value of the land component of the property.
498 However, making an award of compensation to Marym on this basis does have case management implications which should be considered further. Making an award of $104,340 plus interest will require only a short hearing about the question of interest. Assessing the contribution of the improvements to the value of the property will require the determination of the appropriate time for assessment (for example, either as at October 2019 when Nouria asserted her rights as the owner of the property, or as at the time of trial), the parties will need to retain and brief experts, and there will need to be a further short trial, although the time and expense involved could be reduced by referring certain questions to a special referee. However, given the sums involved, I will give the parties the opportunity to reflect upon these observations and make submissions about the appropriate conduct of the assessment going forward.
499 The discussion above is predicated on my findings that no representation was made in the terms pleaded by Marym, that there was no common intention that the property would pass to Sultan and Marym, and that Nouria did not believe that Marym and Sultan held an expectation that the title to the property would pass to them, such that the appropriate remedy is a monetary award.
500 However, in the event that I am found to be wrong, and it was found that the representation was made, and was reasonably relied upon by Marym and Sultan in deciding not to purchase a home of their own and in carrying out the renovations, I shall discuss the appropriate remedy available had Nouria's words or conduct given rise to an equitable interest in the property.
501 First, I note my earlier observations that the standing issue, in particular, regarding the equitable presumption that the co-owners of property hold their interests in property as tenants in common in equal shares, means that Marym may well be limited to claiming a half share of the property, although that issue was not the subject of full argument.
502 However, subject to any discussion about whether any equitable interest in the property she is entitled to has been extinguished or amortised by the benefits she has received by reason of her long term rent free occupation of the property, it seems to me that the nature and quantum of the detriment incurred by Marym would not justify a finding that she had made a 'relatively small, readily quantifiable'[216] outlay on the property in reliance upon the representation. While her outlay on the renovations is quantifiable (and has been quantified in these reasons), it could hardly be said that the outlay was small, at least in the context of the value of the property at the time the renovations were carried out.
503 There was no evidence about the market value or the rateable value of the property during the early 2000s, but the land tax assessment notices in evidence show that as at 31 December 2001, the unimproved value of the property was $275,000. As at 31 December 2005 (after the renovations were largely complete), the unimproved value of the property was assessed at $490,000. In that context, a contribution of around $100,000 to improving the property could not be said to be a small contribution.
504 Further, while I have some reservations about whether the aspiration of Marym and Sultan to purchase a home of their own was achievable, at least as early as 2001, I accept that Marym has shown that she was eventually in a position to afford to acquire residential property (albeit, as submitted by Nouria, at least in part because of her rent free occupation of the property), and that the decision to move into the property and carry out the renovations was a decision of a life changing nature of the kind referred to by Nettle JA in Donis v Donis.[217]
505 In the course of his final submissions, counsel for Nouria referred to a series of tables and calculations illustrating the various financial benefits which accrued to Marym by reason of her rent free occupation of the property, and the costs incurred by Nouria in conferring those benefits upon Marym. The benefits to Marym included the rent assistance and family tax benefits received by Marym from Centrelink, the value of her rent free occupation of the property and interest deductions claimed by Marym on her rental properties. The costs to Nouria included the land tax paid to the State Revenue Office, water connection charges, and rates, although these calculations failed to account for the benefits accruing to Nouria by reason of the tax return issue.
506 In some respects, these calculations somewhat overstate the benefits obtained by Marym, in that she would probably have been eligible for some Centrelink benefits between 2001 and 2010. However, it seems to me that the most straightforward means of evaluating whether awarding Marym an equitable interest in the property (whether a half share of the property, or in the property as a whole) would be a disproportionate remedy in all of the circumstances would be to compare the value of any equitable interest in the property she may have with her asset position at the time Nouria resiled from any representation she made with respect to the property, being October 2019.
507 I accept that Marym's rent free occupation of the property enabled her to acquire investment properties in 2010, 2012 and 2016. Accordingly, for Marym to acquire an interest in the property without accounting for the assets she has been able to acquire by reason of her occupation of the property would overcompensate Marym for any disappointed expectation induced by Nouria.
508 There is limited evidence about the value of Marym's investment properties in late 2010, and the extent to which those properties were encumbered. However, doing the best I can from what evidence is available to me (including by reverse engineering the interest payments shown in Marym's tax returns), I estimate the value of Marym's investment portfolio as at October 2019 to be as follows:[218]
509 Accordingly, based upon the above calculations, Marym utilised her rent free occupation of the property to build a property portfolio valued at over $720,000 as at October 2019. Adding in the rent assistance payments of about $60,000, and deducting the costs she and Sultan paid for the renovations of approximately $100,000,[219] then, if Marym's prima facie entitlement was to a half-share of the property (based upon the standing issue), then the value of that entitlement would have been substantially eroded, although the position would have been different had she established a prima facie entitlement to the whole of the property. Further, I expect that if a constructive trust over the property or any share of the property was to be declared in favour of Marym, there would need to be an adjustment in favour of Nouria for the holding costs of the property paid by her since 2011 of approximately $45,000.
510 Finally, the question remains as to whether Marym should be deprived of any remedy by reason of her application for and receipt of rental assistance payments to which she was not entitled, I accept Marym's submission to the effect that this is an appropriate occasion for the application of the conclusion of the High Court in Nelson v Nelson[220] to the effect that there is no general proposition that equity will let the loss lie where it falls in the case of illegal conduct on the part of a claimant.
511 Arguably, in the current case, the conduct of Marym in applying for rent assistance to which she was not entitled is not connected with Nouria's conduct in acquiescing to the renovations. However, ultimately the question of the appropriate remedy has been determined, in broad terms, by balancing the costs and benefits to Marym of her ongoing occupation of the property. Accordingly, it would be contrary to equitable principles to make an award of compensation without imposing a condition that Marym account to Centrelink for benefits she has wrongfully obtained, albeit from the public purse rather than Nouria. Accordingly, any relief will be conditional upon Marym undertaking to inform Centrelink about to her receipt of rent assistance to which she was not entitled between December 2001 and December 2018.
512 As noted earlier in these reasons, Nouria no longer presses her claim for unpaid rent based upon any agreement made between her and Sultan in 2001, as Marym was not a party to that agreement. However, she seeks damages in accordance with restitutionary principles for Marym's ongoing occupation of the property after December 2018, on the basis that her permission for Marym's ongoing occupation of the property terminated once Hassib had turned 18 and finished school, as she contends that she discussed with Sultan and announced in Marym's presence at the family gathering after Sultan's death. She submitted that the appropriate measure of damages is the rental income that would be able to be achieved for the property on the open market, being $900 per week, having obtained the benefit of a deemed admission from Marym to that effect by reason of her failure to file and serve a Notice of Dispute in response to a Notice to Admit served on Nouria's behalf on 29 November 2022.
513 Marym submitted that the evidence does not establish that there was any agreement between Sultan and Nouria, let alone between Marym and Nouria that Marym would pay rent after 2018. Further, as Marym's children have continued to occupy the property, and no demand has been made by Nouria that they vacate the property, then Nouria has suffered no loss.
514 Marym's submission to the effect that Nouria has not suffered any loss and damage because Nouria has only demanded that Marym, not Marym and her adult children leave the property is unmeritorious. First, both Wais and Zahra gave evidence that they would follow their mother wherever she went, even if the context in which those questions were asked in cross-examination did not directly raise a scenario whereby Marym alone was being asked to vacate the property. However, it would have been open to counsel for Marym to elicit evidence from Wais and Zahra in re-examination and to call Hassib to give evidence as to whether the children would have remained at the property had Marym complied with Nouria's demand and vacated the property.
515 Secondly, the letter sent by Nouria's solicitors to Marym on 3 October 2019 ('eviction letter'), which explained that Nouria proposed to sell the property, contained an implied requirement that Marym deliver up vacant possession of that property. Further, I can infer from the eviction letter, and from Nouria's evidence that she intends to sell the property once this proceeding is finalised, that if the children remained at the property after Marym's departure, then she would have taken steps to have them vacate the property. Given the time required to do that, that may have reduced any damages recoverable by Nouria, but is not a basis for finding that Nouria has suffered no loss and damage.
516 I have discussed the legal principles relevant to Nouria's claim for restitutionary damages earlier in these reasons. As stated by Chernov JA in Ovidio,[221] a restitutionary claim may be made by a property owner based upon the use and occupation benefits accruing to an occupier of land where the occupier has been given permission to occupy the owner's land without there being any binding term as to payment of rent. His Honour described the essential elements of this cause of action as being:
'...the existence of an agreement between the parties - express or implied -to the effect that the occupant / respondent will be the tenant of the claimant and shall pay for the occupation.'[222]
517 Accordingly, the authorities require that a landowner making a claim for restitutionary damages for the use and occupation of property must establish an express or implied agreement to the effect that the occupant will be the tenant of the landowner and will pay rent for the use and occupation of the property. While such an agreement may be implied from the act of entering into occupation, there may be circumstances where the mere fact of occupation is insufficient to establish an obligation to pay for that occupation.
518 Accordingly, the central issue in the counterclaim is whether there was any express or implied agreement between Nouria and Marym that she would pay rent (of any amount) for her use and occupation of the property from the end of 2018, or for that matter, from any time.
519 Nouria has conceded that the evidence does not establish that there was any express agreement reached between her and Marym in 2001 that she should pay rent of $1,100 or $1,200 per month. She relies upon the following matters to support her entitlement to claim rent of $900 per week from the end of 2018:
(a) Nouria granting exclusive possession of the property to Sultan and his family pursuant to the oral agreement between Nouria and Sultan in 2001;
(b) the discussion between her and Sultan at the hospital in November 2007 to the effect that Nouria would permit Marym and the children to stay at the property until Hassib turned 18 and finished school, which she said was communicated to Marym by Sultan;
(c) her statement to a similar effect at the family gathering following Sultan's death, where Marym was present; and
(d) the deemed admission by Marym that the market rent for the property was $900 per week.
520 In my view, those matters do not support the existence of any express or implied agreement between Marym and Nouria for the payment of rent, let alone market rent for the property, for any period of occupation. First, if it is accepted that Nouria told Sultan in November 2007 that the family could stay in the property until the end of 2018, implicit in that statement is a representation that the family could live there rent free, as they had done for the past six years. There was no evidence from Nouria to the effect that she also said words to the effect that 'and after that they can pay me rent'. In any event, while Nouria gave evidence that Sultan told Marym about what she told Sultan, she did not say that Sultan told Marym about this discussion in Nouria's presence, such that I cannot conclude that he did so.
521 As for what occurred at the family gathering, I have stated earlier in these reasons that I largely accept the evidence that Nouria said that she would transfer the title of the property to the children when Hassib turned 18 (or 23). However, even if I am wrong about that, the statement by Nouria as to how long the family could stay in the property until the end of 2018 was a unilateral statement.[223] There was no evidence of any meeting of minds between Marym and Nouria, and thus I could not find that there was any express or implied agreement between Nouria and Marym to the effect that, after the end of 2018, Marym would pay Nouria rent for her continued occupation of the property. No such agreement is pleaded in the counterclaim, and there is no evidence that the question of rent was ever discussed between Marym and Nouria: indeed, the two women have been estranged since 2017.
522 The circumstances of the current case seem to me to fall within the exception identified by Jordan CJ in Australian Provincial Assurance Association Ltd v Rogers:[224] that is, they negative the implication of a contract between Nouria and Marym that Marym would pay for her occupation of the property. Nouria's claim for restitutionary damages for Marym's use and occupation of the property must fail, and the counterclaim will be dismissed.
523 However, if I am wrong about whether or not there was an express or implied agreement that Marym would pay Nouria rent for her occupation of the property and that Marym knew that she was only permitted to occupy the property until December 2018, I do not accept that even if there was any such agreement, that Marym would be required to pay rent from December 2018. Even if there was such an agreement, Marym's understanding of what was to occur may well have been overtaken by events. In particular, the discussions about the development proposal in 2017 assumed Marym's ongoing occupation of the property, or at least part of the property. Further, and importantly, no action was taken by Nouria to evict Marym prior to the end of 2019. One would have thought in circumstances where Nouria and Marym were no longer on speaking terms, Nouria would have acted promptly to enforce her rights if there had been an agreement that Marym vacate the property at the end of 2018, but nearly a full year passed beyond that before she took any action to have Marym vacate the property. Indeed, Nouria's failure to take any action at the end of 2018 is more consistent with there being no such agreement, or any intention on Nouria's part that the family would be required to vacate the property at the end of 2018.
524 In my view, Nouria's permission for Marym and her children to occupy the property was revoked on 15 February 2020, being the date upon which Nouria required Marym to vacate the property, as stated in the eviction letter. Until that time, no demand had been made by Nouria that Marym leave the property. Arguably, Marym and her children are now trespassers, and as such, Nouria would have a claim for mesne profits. The market rent for the property would be an appropriate measure of damage for such a claim. But no such claim has been made.
525 Accordingly, the commencement date for the calculation of loss and damage would be 15 February 2020, with damages accumulating at $900 per week until the date the property is vacated.
526 However, for the reasons set out in the preceding paragraphs, the counterclaim will be dismissed.
527 Given my findings in these reasons, I propose to make the following orders:
(a) the claim by the plaintiff/defendant by counterclaim for a declaration that the defendant/plaintiff by counterclaim holds her interest in the property described in paragraph 1(b) of the second further amended statement of claim filed on 29 November 2022 be dismissed;
(b) the defendant/plaintiff by counterclaim pay the plaintiff/defendant by counterclaim equitable compensation in an amount to be fixed pursuant to paragraph 2 of the Order made by Matthews AsJ on 21 October 2022;
(c) the counterclaim be dismissed;
(d) the proceeding be listed for further directions on a date to be fixed for the purpose of making further directions with respect to paragraph 2 of this Order;
(e) the parties are directed to confer as to whether it is appropriate and/or practicable to refer the question of the quantification of the equitable compensation payable to the plaintiff/defendant by counterclaim to a special referee pursuant to Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic); and
(f) the parties' costs of the proceeding, including the costs of the trial and the costs of the hearing today, be reserved for determination after the conclusion of the quantification exercise referred to in paragraph 2 of this Order.
[1] Given that the parties and many of the witnesses share a common surname, first names are used for family members throughout these reasons. No disrespect is intended. I have described witnesses who do not bear the surname 'Salehi' more formally, as is conventional.
[2] Organisations Nouria has been involved with include Médecins Sans Frontières, the Refugee Council of Australia, Austcare, and the Brotherhood of St Laurence. In 2002, she founded the Afghan Australian Development Organisation, a non-profit organisation which has as its primary purpose the initiation and implementation of projects to assist the reconstruction and development of communities in Afghanistan. She received the Order of Australia medal in 1997, and was appointed as a Member of the General Division (AM) in 2019. She also received a Centenary medal in 2003, and was named Victorian Senior Citizen of the Year in 2012. Her niece Zahra gave evidence about attending an Australia Day function at Government House with her aunt and being very impressed with how many prominent people Nouria knew and conversed with at the function.
[3] However, the land tax assessment notices prepared by the State Revenue Office ('SRO') do not disclose any purchases of property by Nouria in 2006 or 2007.
[4] I believe that Marym is referring to the Muslim Community Co-operative (Australia) Limited ('MCCA').
[5] How realistic these plans were was not fully explored in the evidence. While there was no direct evidence apart from Marym's own evidence about property values in their preferred suburbs at that time, the house prices identified seem a little optimistic on Marym's part, certainly with respect to property prices in Armadale. I note that the SRO had determined the unimproved value of the property to be $275,000 as at 31 December 2001 for land tax purposes, that is, approximately double the price at which Marym and Sultan were hoping to purchase a property in the area. It was also unclear whether the couple would have been able to borrow funds to purchase a home from the MCCA or a mainstream financial institution, given their dependence upon Centrelink for income, at least until Marym started work as a pharmacy technician in about 2004. Even after that time, Marym gave evidence that she could not afford repayments of $270 per month to repay a personal loan in 2005.
[6] Which would have been prior to her departure from Australia on 7 August 2001.
[7] Of course, this evidence is only admissible for the purpose of establishing what Sultan told Marym, not for the purpose of establishing what Nouria told Sultan. The exceptions to the hearsay rule in the Evidence Act 2008 (Vic) ('Evidence Act') did not apply to this evidence.
[8] Nouria relies upon her contention that Marym moved into the property on or about 29 November 2001 as support for the proposition that no detriment has been suffered by Marym as a consequence of any representation by Nouria, as Sultan had already commenced carrying out the renovations. However, it is apparent from the evidence that the substantive renovation works were commenced in 2002, probably in mid 2002 after the building permit was obtained, such that not much turns on this issue in the end.
[9] It is not clear from the evidence whether Marym and/or Sultan were present at these gatherings.
[10] This evidence does not enhance Marym's credibility on this issue and on other issues in the proceeding. Both Marym and Nouria agreed that the $600 conversation took place shortly after Marym moved into the property, probably in November or December 2001. By that time, the only work that had been done was to remove the carpets and to demolish the laundry. While there was evidence that Sultan had purchased some hardwood flooring by that time, it is difficult to believe that he would have spent half of their savings (said to be $40,000) on floorboards.
[11] The documents produced by Centrelink in response to a Freedom of Information request made by Marym in the lead up to the trial of the proceeding ('Centrelink documents') do not include any such certificates, such that there is no means of independently testing this evidence.
[12] Counsel for Marym contended that Marym ceased receiving rent assistance in around 2010 or 2011, when Nouria stopped reporting receiving rental income for the property in her tax returns. However, this contention is inconsistent with the Centrelink documents and Marym's own evidence.
[13] In the course of their preparation for trial, Nouria's solicitors made this calculation after removing all unpaid invoices, duplicates, and non-renovation related receipts from the renovation receipts. However, it is clear from the entirety of the evidence that the renovation receipts are not a complete record of the renovation works actually carried out.
[14] Counsel for Nouria submitted that I should draw an adverse inference from Marym's failure to call the workers to give evidence. Marym gave evidence that she did not know how to contact them. However, Zahra gave evidence that she contacted Mr Rahim's daughter to ask for his telephone number, but his daughter told her that her father was sick. When asked about Abdullah, Zahra said that she did not know his last name, saying 'there's a million Abdullahs in Dandenong'. However, I cannot see how the workers' evidence would have been particularly useful: the evidence indicates that they were paid in cash, but it is unlikely that they would have known whether or not the ultimate source of the cash was Sultan and Marym (who would have handed the cash to the workers) or Nouria.
[15] It is not clear from the evidence who Nouria was referring to, but it was probably Ms Komak.
[16] When asked when she had told Marym that she would have to move out of the property at the end of 2018, Nouria said that Sultan told Marym when he went to hospital on 9 November 2007. She did not say whether or not she was present during this discussion.
[17] The witnesses all gave slightly different evidence as to who was present when Mr Musleh addressed the gathering. Marym says that she and Nouria were present, along with Nouria's sisters Golalai and Kaoki and their husbands, Hamid Najeem and Springhar Komak.
[18] I believe this must be a reference to Hassib, Marym's younger son, but little turns on this error for present purposes.
[19] Aref Salehi and Kaoki Komak also gave evidence that Mr Musleh said that Nouria should give the property to Marym.
[20] This evidence is consistent with the records produced by the Council pursuant to a subpoena.
[21] Counsel for Marym said that the value of Marym's equity in this property is approximately $200,000.
[22] The Hallam property was sold in July 2012 for $337,000. In June 2012, Marym purchased a property in Hampton Park for $335,772, which she sold in November 2021 for $688,494. In December 2016, Marym purchased a property in Doveton for $462,000, which she still owns. None of these properties have been declared to Centrelink, although the income and expenses associated with them have been reported to the ATO in the tax returns prepared by Marym's accountant.
[23] As it turns out, Zahra still uses the surname Salehi, at least during the trial of this proceeding.
[24] The description Wais provided of the document Nouria showed him did not conform with any of the land tax assessment notices issued by the SRO in the court book.
[25] Zahra clarified that "our" means Marym and all three children.
[26] The property was nominated as her principal place of residence between 2017 and 2020. However, Nouria denied that she told the SRO this to avoid land tax, and says that in fact she paid more land tax as a consequence of this declaration, as her actual residence was more valuable than the property.
[27] This is consistent with my observations of the two women during the course of the trial. However, under cross examination, Nouria attributed her decision not to move to live at the property to the "problem of the cemetery", presumably the incident which is described in the following paragraph, which confuses the chronology somewhat.
[28] In hindsight, this proposal, if it had been accepted by Marym, may well have resulted in a far more favourable outcome (financially and otherwise) than what has occurred and what may occur as a consequence of this proceeding.
[29] Zahra gave evidence that there were two meetings at the property about the development proposal, but it does not seem to me that much turns on the question of whether there was more than one meeting about the development proposal. Both Marym and Nouria refer to there being only one meeting.
[30] Marym gave no evidence about this conversation, but my recollection is that at the time Marym gave her evidence in chief, Mr Najeem was not expected to be called as a witness, and was called by Nouria to give evidence after the (late) amendments to the statement of claim, so that nothing turns on Marym's failure to give evidence about this alleged conversation.
[32] Any claim by Sultan to an equitable interest in the property being an asset of the estate.
[33] This claim was not pressed by Nouria following the conclusion of the evidence.
[34] An application by Marym at the commencement of the trial to amend her statement of claim to press this claim was refused.
[35] On 21 October 2022, Matthews AsJ made an order that 'the question of the quantum of the plaintiff's equitable compensation claim be tried after the trial of the balance of the proceeding'.
[36] [2023] FCA 555 ('Roberts-Smith'). While his Honour's judgment has been appealed, I doubt that his summary of the relevant legal principles regarding evidentiary matters will be disturbed.
[41] [1938] HCA 34; [1938] 60 CLR 336 ('Briginshaw').
[53] Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 [177].
[74] See the discussion at paragraph 129 of these reasons.
[75] This evidence is not admissible for the purpose of proving truth of what Sultan told Mr Musleh.
[76] It appears from her evidence that Marym and Sultan were not present at this gathering.
[77] Ms Samad also came to Court under the compulsion of a subpoena, although it seems that she would have given evidence voluntarily. She gave evidence that she had not spoken to Marym's counsel before coming to Court.
[78] Ms Shapoor was also subpoenaed by Marym to give evidence, and also said she had not spoken to Marym's counsel prior to giving evidence.
[79] During the course of her re-examination, Nouria said, in response to a question about the date upon which she spoke with Sultan in hospital in 1997, words to the effect 'you know me, I always remember the dates'. Having observed Nouria during the course of the trial, I have no doubt that this is correct, which heightens my reservations about any evidence she gave which was vague or imprecise.
[80] And, having observed Mr Musleh give evidence, I have no doubt that those demands would have been made loudly and stridently, such that anyone present in the room would have heard them.
[81] But not for eight to ten years, as stated by Ms Mershedi in her evidence.
[82] See Harris v Harris [2020] VSC 256 [173]. See also Merrett v Mackay [2022] VSC 220 [172].
[84] Ibid [173], referring to the decisions of the High Court in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 435-437 and Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 [35], [142].
[89] JD Heydon, MJ Leeming and Dr PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (Lexis-Nexus Butterworths, 5th edition, 2014).
[92] JD Heydon, MJ Leeming and Dr PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (Lexis-Nexus Butterworths, 5th edition, 2014) [17-065] referring to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 420.
[95] Olsson v Dyson [1969] HCA 3; (1969) 120 CLR 365, 379.
[98] Discount and Finance Ltd v Gehrig's NSW Wines Ltd [1940] NSWStRp 52; (1940) 40 SR (NSW) 598, 603 per Jordan CJ.
[99] New South Wales Trotting Club Ltd v Glebe Municipal Council [1937] NSWStRp 14; (1937) 37 SR (NSW) 288, 308 per Jordan CJ.
[102] Rasmussen v Rasmussen [1995] VicRp 38; [1995] 1 VR 613.
[103] Shepherd v Doolan [2005] NSWSC 42 [31].
[105] Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 550.
[107] Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 [84].
[108] Shepherd v Doolan [2005] NSWSC 42 [39].
[110] Grant v Edwards [1986] Ch D 638.
[111] Shepherd v Doolan [2005] NSWSC 42 [41].
[113] See the decision of the Court of Appeal in Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, and the High Court in Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 ('Sidhu').
[114] Giumelli v Giumelli (1999) 196 CLR 101.
[131] [2013] VSCA 170 [138].
[140] See, for example, Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483; Germanotta v Germanotta [2012] QSC 116; Milling v Hardie [2014] NSWCA 163 and CC Growth Pty Ltd v Amiga Growth No 2 Pty Ltd [2019] VSC 340 [85].
[141] Particularly given the statements of the High Court to the contrary effect in Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505.
[142] [2006] VSCA 6 ('Ovidio').
[145] [1987] HCA 5; (1987) 162 CLR 221, 262.
[146] [2006] VSCA 6 [32].
[151] Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 [48].
[162] Ibid 205. See also Zegir v Woop [1955] VicLawRp 38; [1955] VLR 394; Specktor v Lees [1964] VicRp 2; [1964] VR 10; and Scientific Management Associates (Australia) Pty Ltd v Australian Capital Territory [1999] ACTSC 17.
[163] Lake v Craddock (1732) 3 PWms 157; Wormald v Woolley [1903] UKLawRpCh 71; [1903] 2 Ch 206. See also Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 [6].
[164] Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 [6]. The other critical feature of a joint tenancy is a right of survivorship. It is not entirely clear from the authorities I have received as to whether, in determining whether there is a right of survivorship, the intentions of the party making the conveyance (in this case, Nouria) or the recipients of the conveyance (being Marym and Sultan) in that regard are relevant.
[166] Section 26 provides as follows: '(1) In the construction of any instrument coming into operation after the commencement of this Act a disposition of the beneficial interest in a property whether with or without the legal estate to or for two or more persons together beneficially shall be deemed to be made to or for them as tenants in common, and not as joint tenants. by the terms of by the tenor of the instrument are executors, administrators, trustees, or mortgagees, nor in any case where the instrument expressly provides that persons are to take as joint tenants or tenant by entireties.' There is no equivalent provision in Victoria, so the common law presumption of a joint tenancy applies.
[167] [1986] HCA 67; (1986) 161 CLR 464 [8]-[9].
[168] While there was no evidence as to the market value of the property in late 2001 (although there is evidence of the unimproved value), I note that the current estimated value of the property is more than twice the current median house price in Metropolitan Melbourne (Real Estate Institute of Victoria 'Market Insights', June 2023).
[169] Ms Komak gave evidence that she plans to sell the property gifted to her by Nouria and pay the proceeds to Nouria, but that evidence seems to me to be somewhat implausible.
[170] Similar sentiments were expressed by Ms Shapoor, who was also Nouria's sister-in-law, in her evidence.
[171] Marym and Sultan paid $600 per month for the Armadale apartment, but $600 is also half of $1,200, the amount Nouria says was agreed between her and Sultan.
[172] However, I also accept that Nouria's version of the $600 conversation is inconsistent with there being an agreement between her and Sultan that he and Marym would pay rent of $1,100 per month for the property.
[173] That is, when Hassib finished secondary school.
[174] Mr Mulseh did not give any evidence about any conversation in the hospital at which he, Nouria, Marym and Sultan were present.
[175] Noting that $20,000 is far in excess of what would be required to give effect to a simple conveyancing transaction.
[176] It does not appear that Nouria discovered any versions of her will during the course of this proceeding. In the light of how the evidence ultimately came out at trial, they would have been interesting documents to see. That said, I accept that the relevance of any testamentary documents may not have been readily apparent to Nouria and/or her lawyers in the pre-trial stage of the proceeding.
[177] [2015] VSC 72 [4].
[178] I also note that the telephone number on the application form matches the telephone number reported by Marym to Centrelink, there being a notation in one of the communication records in the Centrelink documents that the telephone account was in Marym's partner's name.
[179] The question of whether Nouria encouraged Marym and Sultan to carry out the renovations will be discussed in a later section of these reasons.
[180] Counsel for Nouria tried, but failed, to elicit any evidence from Nouria about what she told Sultan in 2001 about how long he and his family could stay at the property. However, regardless of whose version of events is correct, I assume she would have given Sultan assurances that the family's tenure was secure.
[181] The nature of the questions asked of Marym about the provenance of the notebook suggests that this is an instance where counsel was, in the words of Well J in Reid v Kerr (1974) 98 SASR 367 'willing to wound, but afraid to strike'.
[182] No doubt referring to the ANZ loan.
[183] This figure may be a reference to the total of the repayments to Sultan and/or Mr Rahim referred to in the previous paragraph.
[184] This sum equals $1,700 x 24 months.
[185] A letter from a real estate agent addressed to Timur seeking payment of outgoings was discovered by Marym, and she also discovered two letters from a debt recovery agency to Sultan in 2004 addressed to him at the fish and chip shop. These documents suggest that Sultan was managing the fish and chip shop, at least between 1997 and 2004.
[186] Nouria says she made the offer to engage a builder in around February 2003, which may well be correct, and that offer may be unconnected with her commencing to provide Sultan with financial assistance to complete the renovations.
[187] No witness was able to give precise evidence as to when the fish and chip shop was sold, but it was sold in either 2004 or 2005. Given the chronology of events, and the evidence that the family's financial position was stretched well into 2005 (as Marym said she could not afford to make the payments on the ANZ loan), it may well have been sold in 2005, rather than 2004.
[188] Given Aref's reference to 'appliances', this conversation probably took place in early 2005.
[189] It seems to me that there was nothing untoward about this: Mr Westcott is a very experienced accountant, and is no doubt capable of forming a considered view about what information requires verification and what does not.
[190] No criticism is intended by this observation: that is the entitlement of every taxpayer. However, from this observation, I can infer that Nouria would have been well aware of the scope for reducing her taxable income (and therefore, her liability to pay tax) by negatively gearing rental properties and the effect of reporting to the ATO that the property was occupied by a paying tenant.
[191] For this analysis, I will largely refer to the original tax returns rather than the amended tax returns, with one exception.
[192] Referring to the year ending 30 June of the stated year.
[193] Mr Westcott confirmed that the costs of any reported renovations to a rental property are capital works, and would be recorded in the depreciation schedules.
[194] Based upon an interest rate of 7% per annum. Precision is not required for present purposes.
[195] Nouria gave evidence that she used the funds raised by the loan taken out by her in 2006 and secured by the property to fund renovations to the Lyon apartment and to fund the purchase of another property, but this evidence is not borne out by the depreciation schedules for the property or the land tax assessment notices issued by the SRO.
[197] Which I accept is a not insignificant sum.
[202] J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015).
[213] The rates notice for 2011 is missing from the bundle of rate notices in evidence.
[214] Experience suggests that the sum recorded in the rate notices is likely to be less than the market value of the property, but this data is being used for illustrative purposes only.
[216] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 [84].
[218] By necessity, these are very rough and ready estimates, but they are satisfactory for the illustrative purposes for which they are made. The market value of the Hampton Park property is based upon the sale price in 2021, discounted by the change in median house prices in Metropolitan Melbourne between the last quarter of 2019 and 2021 (Source: Real Estate Institute of Victoria). The market value of the Doveton property is based upon the purchase price in late 2016, increased by the change in median house prices in Metropolitan Melbourne between the last quarter of 2016 and the last quarter of 2019. The mortgage balances are reverse engineered based upon the interest shown in the rental schedules for the properties in Marym's tax returns for the 2020 tax year, based upon an assumed interest rate of 5% per annum.
[219] That is, a net benefit of $680,000.
[223] Indeed, Mr Musleh's evidence is to the effect that Marym cried out that she did not want to discuss such matters.
Salehi
Salehi [2023] VSC 535
(1986) 161 CLR 464
(1985) 160 CLR 583
(2007) 162 FCR 466
(2008) 167 FCR 537
(1938) 60 CLR 336
(2004) 220 CLR 363
(2001) 51 NSWLR 572
(2000) 75 ALJR 931
(1995) 49 NSWLR 315
(1989) 168 CLR 79
(2019) 271 FCR 632
(2000) 49 NS WLR 262
(1959) 101 CLR 298
(1992) 110 ALR 449
(2003) 214 CLR 118
(1974) 9 SASR 367
(1983) 152 CLR 406
(2016) 260 CLR 1
(1988) 164 CLR 387
(1969) 120 CLR 365
(1988) 18 NSWLR 540
(2007) 19 VR 577
(2014) 251 CLR 505
(1999) 196 CLR 101
(2010) 78 NSWLR 483
(1987) 162 CLR 221
(2009) 254 ALR 661
(1974) 98 SASR 367
(1999) 196 CLR 10
(2014) 47 VR 127
(1995) 184 CLR 538