Plaintiff v First Defendant

2 The claim by the plaintiff is quite simple. The defendants admit that the plaintiff is the registered proprietor of the property, that they have been, and remain, in possession of the property, and that they have refused to deliver possession of the property to the plaintiff. However, by reason of the matters set out in the counterclaim, they claim that the first defendant is entitled to possession of the property to the exclusion of the plaintiff.

3 Thus, the issues which are in dispute in the case centre on the allegations made by the first defendant in the counterclaim. In particular, the first defendant alleges that, in about 1990, there was an oral agreement between himself and the plaintiff, whereby the plaintiff agreed to give the property to the first defendant, if the defendant settled down with the second defendant, got married to her and had children with her, and met all outgoings in connection with the property and carried out repairs and improvements to the property. Further, it is asserted that, in the ensuing years, the first defendant to the knowledge of the plaintiff occupied the property, and carried out substantial repairs, improvements and renovations to it, and met various expenses in respect of the property. The first defendant asserts that the plaintiff consented to, and acquiesced in, the first defendant occupying the property and carrying out the works to it, and thus encouraged and permitted in the first defendant an expectation that he would enjoy the sole beneficial ownership of the property. Accordingly, it is claimed that, by permitting and encouraging the first defendant to expend monies on the repairs, improvements and renovations to the property, the plaintiff is bound in equity to transfer all of her right, title and interest to the property. Alternatively, it is claimed that the first defendant, in the circumstances, is entitled to an equitable charge over the property to secure repayment to the first defendant of the amounts expended by him in connection with the property.

4 It is useful to commence by outlining the background facts which are not in dispute. The plaintiff married her first husband, Pantelis Loulatzis, in 1955. There were four children of that marriage, namely, Christina, born in 1959, the first defendant, Anthony Kasi Loulatzis (known as "Con Loulatzis") born in 1960, a second son Anthony, born in 1962, and a third son, Nicholas, born in 1965. Pantelis Loulatzis became the registered proprietor of the property at 25 Green Street in 1963. It was then located in the suburb of Burwood, but subsequently when the boundaries of that suburb were altered, it became located in the suburb of Camberwell. Pantelis Loulatzis died on 14 December 1974. On 14 August 1975, by the terms of Pantelis' will, the plaintiff became registered proprietor of the property.

5 Before his death, Pantelis Loulatzis had been carrying out some renovation works to the house. After he died the plaintiff installed three aluminium windows which had been purchased by her husband for the premises. She also had tiling carried out in the toilet and laundry. Between 1980 to 1982 she had the house, which was then timber framed, clad in bricks. She also installed new windows around the house, installed a new front door, re-carpeted the house, renovated the bathroom with tiles, and had tiles laid in the kitchen. In addition, she removed a glass partition between the kitchen and the sun room to form one room. At the same time she also extended the house to the rear to add a further room (then known as "Christina's workroom") and, above it, as a second storey, another bedroom (then used as Nicholas' bedroom). Subsequently, in about 1987 or 1988, she engaged an electrician to re-wire the house. After those works were completed she had new plaster work undertaken, and the house was painted. She also installed ducted heating and a new hot water service.

6 The plaintiff married her second husband, Con Lollis, in June 1983. Mr Lollis then owned and conducted a nursing home in Ivanhoe, by his company La Trobe Private Nursing Home Pty Ltd. By that time Christina had left home, but the plaintiff's three sons still lived there. Subsequently, the second son, Anthony, married his wife Tracey in 1986. At about the same time the youngest son Nicholas visited America. In the next few years he travelled to and from America, and ultimately settled there in about 1989, at the age of 22. By then, the first defendant was still living at home.

7 In the 1990s the plaintiff commenced to live with Mr Lollis in Mr Lollis' house in Rosebud. After their marriage, the plaintiff was living off and on at Green Street and in Rosebud during the 1980s, but she lived full-time in Rosebud from 1990. In the following years, she visited Green Street regularly, where she carried out household tasks such as cleaning and cooking for her son. At some stage the second defendant, Irene Petruccelli, commenced a relationship with the first defendant. She commenced living full time at the Green Street premises in 1995. In 1998, the plaintiff and Mr Lollis moved into a new home which they had built in Mt Martha.

8 In December 1994, Mr Lollis was convicted of offences relating to the conduct of the nursing home, and was sentenced to a period of imprisonment. While he was in prison, the first defendant was appointed a director of La Trobe Private Nursing Home Pty Ltd. The plaintiff was also charged with offences under the Commonwealth Crimes Act in relation to deductions claimed by her in her income tax return. She was placed on a bond to be of good behaviour, and ordered to pay a sum of $880 approximately to the Commissioner for Taxation. In March 1995 Mr Lollis was released from prison. In June 1995 the plaintiff went overseas for a period of two months, and for some of that time Mr Lollis was with her. In late 1995, after her return from overseas, the plaintiff consulted a solicitor, Mr Tony Goldsmith. As a consequence of that consultation Mr Goldsmith prepared a document entitled "Notice to Determine Tenancy at Will" (to which I shall refer as "the notice to quit"). The plaintiff's evidence is that three notices were prepared, one directed to the first defendant, one to the second defendant, and one to both of them. The first defendant's evidence is that one such notice, addressed to him and undated and unsigned, was placed in the letterbox at Green Street. In her evidence the plaintiff stated that she spoke to the first defendant about the notice when she visited him at Green Street. He threw the notice at her and said "I'm leaving when I'm ready". On the other hand, the first defendant denied that that conversation occurred. He said that, after he found the copy of the notice in the letterbox, he telephoned the plaintiff, who disclaimed any knowledge of it. He also said, in his evidence, that he reminded the plaintiff that he and she had "a deal". The defendants continued to occupy the premises at Green Street after that notice was received by the first defendant. In April 1997 their son, Pantelis, was born. In 1998 Mr Lollis and the plaintiff moved their home from Rosebud to Mt Martha, where the plaintiff now resides. The defendants' second child, Violetta, was born in November 2002.

9 In 2002, the plaintiff's daughter Christina commenced proceedings against the plaintiff, challenging the grant of probate to the plaintiff of the will of her late husband. She also caused a caveat to be lodged over the title to the property at Green Street, by which she claimed an estate in fee simple. The grounds of claim were expressed as "interest as beneficiary under intestacy". In the same year the plaintiff commenced divorce proceedings against Mr Lollis. On 8 August 2003, the solicitors acting for her in those proceedings sent a letter to the defendants requiring them to vacate the property at Green Street. In October 2003 these proceedings were commenced against the first defendant by writ. Irene Petruccelli was joined as a second defendant in March 2004. Subsequently, the proceedings between the plaintiff and Christina resolved. In 2005 the Family Court proceedings between the plaintiff and Mr Lollis were settled, and as a result the plaintiff is the sole proprietor of the former matrimonial home at Mt Martha. She is still living in those premises, and the defendants have continued to reside at the Green Street property with their two children.

10 The principal factual issues arise from the claims by the first defendant in his counterclaim. They include the following:

(a) Whether there was a promise or representation by the plaintiff to the first defendant in 1990 that, if he settled down with the second defendant, had children with her, and, to his own expense, renovated and cared for the property, the plaintiff would give him the property;

(b) The extent of works carried out by the first defendant at the premises between 1990 and 2003;

(c) The extent to which the plaintiff knew that the first named defendant was carrying out such works;

(d) Whether the plaintiff encouraged and acquiesced in the carrying out of those works, and the incurring of expenses in relation to the property, by the first defendant.

11 The evidence, which was led in relation to those issues, raised a number of disputed questions of fact. In particular, there were disputes as to when the first defendant commenced his relationship with the second defendant, as to the nature and extent of that relationship in 1990, and as to the plaintiff's attitude to the relationship between the first defendant and the second defendant. In addition, the evidence raised issues as to the plaintiff's relationship with the first defendant during the relevant period, and in particular between 1995 and 2003. Importantly, there was disputed evidence as to whether the plaintiff made demands on the first defendant that he either leave the premises or pay rent from 1995 until the issue of the proceedings in 2003. There was a dispute as to whether the plaintiff knew, and expressly approved of, extensive renovations to the premises undertaken by the first defendant during that period, and whether she told him not to carry those works out. More broadly, the evidence necessarily ranged over a large raft of topics. In view of the relationship between the parties, the evidence inevitably included incidents which had occurred in the family setting over a period of some two decades. The evidence also touched on issues arising from the proceeding which the plaintiff's daughter had brought against her in 2002, the divorce proceedings between the plaintiff and Mr Lollis, an application for an intervention order by the second defendant against the plaintiff in 2005, and a large number of other matters. In summarising the evidence, I shall focus on those aspects which bear more directly on the principal issues between the parties.

12 I turn then to the evidence of the plaintiff. The proceeding was instituted by her while she was known as Stella Lollis, but she has subsequently reverted to using the surname of her first husband, and thus is known as Stella Loulatzis. I shall refer to her as "Stella". She commenced her evidence by describing the family background, and by outlining the renovations which she carried out to the house at Green Street during the 1980s. She described how, over the years, three of her four children moved out, so that only the first named defendant (to whom I shall refer as "Con") remained living at the Green Street premises. Con attended university during the 1980s, where he met the second defendant (to whom I shall refer as "Irene"). During the 1980s Irene was a friend of Con, but there was no special relationship between them. In March 1991 Christina, who had been living overseas, came home. She lived at Green Street for a short time. While she was there, she had an argument with Irene, and Stella told Irene to leave and not to come back. Stella denied that the relationship between Con and Irene at that time was close. She denied that at that time, or indeed at any time, she had encouraged Con to marry Irene. She particularly denied that she stated to Con that if he married Irene, had children with her, bore the expenses of the property, and maintained and renovated the Green Street property, she would give the property to him.

13 Stella stated that at some stage there was a bad argument between Con and her second husband (to whom I shall refer as "Lollis"). This incident became referred to as the "coffee table" or "tea table" incident. During an argument, Con lifted a coffee table, and threatened Lollis with it. After that dispute, Lollis refused to stay at Green Street, and thereafter he permanently resided at his Rosebud property. Stella continued to stay off and on at the Green Street property, and she was living alternately at those premises and with her husband at Rosebud. Later she lived permanently at Rosebud, but visited the Green Street property each day, where she did the cleaning, and cooked for her son.

14 Stella went on an overseas trip to the United States of America between August and October 1991. At about that time, she had repairs carried out to the front fence of the property, for which she paid. Con, Tony and Lollis all assisted with those works. When Stella returned from America in October 1991, Con had, without her knowledge, rendered the front of the house with grey/green mortar. In addition, he had removed a bed of flowers and roses which had been close to the house. At that time Con was commencing his plastering business, and he had practised plastering on her house. When Stella rebuked him for doing it without her knowledge, he told her to shut up, and swore at her.

15 During the ensuing two years, as Con established his plastering business, he commenced to place his equipment and materials for that business in the yard of the house. Stella kept a number of her own personal items at the house, including furniture, cutlery and clothing. In 1993 her second son, Tony, and his wife Tracey moved into the house for a few months, while their own new house was being built. During that time Con had an argument with Tracey. Irene was not living there at that time. Stella stated that she continued to pay the bills, including the rates, in respect of the house until 1996. After approximately 1996, Con commenced to pay the rates and the accounts for gas and electricity. Stella stated that in the meantime, from about 1991, she had had discussions with Con about the fact that he was still living at the premises, and not meeting any of the outgoings in respect of it. She said to him on a number of occasions that he should either move out or pay rent. She told him she was sick and tired of his friends, who were also using the premises, and that he was to either leave or pay rent. He would reply "Leave me alone, I'm sick, I will go when I'm ready, let me get on my feet". Over the years Con had a number of problems with his health. In the late 1980s, on a trip to Darwin, he contracted Ross River fever. Subsequently he suffered, and has continued to suffer, from very high blood pressure, diabetes and asthma.

16 In December 1994, when Lollis was sentenced to a term of imprisonment, Stella moved back into the Green Street house. She remained there until Lollis was released from prison in March 1995, when the couple then went back to Rosebud. On Christmas Day in 1994, she had a heated argument with Con in the Green Street property. Con was expecting Irene at the house, and he wanted Stella to stay with his brother Tony. Stella stated in her evidence that the argument which ensued was, for her, a watershed in her relationship with Con, and that thereafter their relationship was never the same.

17 A few months after Lollis was released from prison, the couple went to Greece for a holiday in August or September 1995. On her return Stella consulted a solicitor, Mr Tony Goldsmith. On her instruction Mr Goldsmith prepared the Notice to Determine Tenancy at Will. Stella was unable to recall whether she, or Mr Goldsmith, served that document on Con. However, shortly after she saw Mr Goldsmith, she spoke to Con and Irene on the verandah of the house at Green Street. Con had a copy of the notice with him. He threw it at her, swore at her, and said "I'm leaving when I'm ready". Stella told Irene she should leave, to which Irene replied "You go first, old bitch". In November 2005 Stella also made a will, prepared by Mr Goldsmith, by which she gave the property at Green Street to her son Tony, and her interest in the property at Rosebud to her son Nicholas.

18 Stella stated that, after the incident on the verandah, she did not speak to Con for some time. They resumed talking in 1996. At that time she ceased to pay the rates and the household bills. After 1996 she discussed with Con the fact that he was still at Green Street. He would respond by saying that he was leaving and that Stella should give him a couple of months to enable him to do so. In 1997, Irene was pregnant with her first child, and Stella deliberately refrained from raising the topic with Con at that stage. In the ensuing years, she continued to raise the subject with Con, and he continually stalled, saying that he would move out, but he needed time. In the late 1990s Con and Irene purchased two properties at Point Leo. Con told Stella that Irene had booked their son Pantelis into the kindergarten at Point Leo, and that they intended to live there. During that period Con removed some furniture at Green Street to the Point Leo house. He also removed some of the Stella's furniture from Green Street and transported it to her home in Mt Martha.

19 In Christmas 2001 (or possibly Christmas 2002), Con visited Stella at Mt Martha and showed her a sketch. Stella thought that the sketch related to proposed extensions to Con's Point Leo premises. Subsequently, she learned that Con had plans to build an extension to the property at Green Street. She told him that he was not allowed to do anything at Green Street. Con asked her for the title so that he could obtain a permit for the renovations, but Stella refused to give it to him. She told him he was not allowed to build or touch anything there.

20 In 2002, Stella's daughter Christina commenced proceedings against the plaintiff seeking to set aside the grant of probate in respect of her late husband's will. Both Con and Tony assisted the plaintiff to defend that proceeding. After a mediation meeting in relation to those proceedings in October 2002, Con said to her words to the effect "You wait and see, this is nothing compared to what I am going to do to you".

21 Stella also gave evidence as to some works which Con carried out at the premises at Green Street of which she was aware. As I have already stated, when she learnt that he had rendered the brickwork of the house during her trip to the United States in 1991, she told Con of her disapproval. At one stage Con removed and replaced the windows in the front bedroom and the lounge room. He replaced the window in the lounge room with a bay window. She objected, and asked him why he had changed the windows. Con replied that he did not like the previous windows. On another occasion, Con demolished the fire place in the lounge room, and Stella was very angry. She said to him "How many times have I told you don't touch anything". On another occasion, Con laid new tiles in the laundry and in the toilet. Stella asked him why he did that and told him "How many times do I have to tell you not to replace my things?"

22 On one occasion, in about 2002, when Stella visited the house, she went outside and noticed that all the other aluminium framed windows in the house had been removed and were on the ground. Con had replaced those windows with timber windows. On another occasion, in 2003, Con telephoned Stella and told her that she should come to the house, as he wanted to speak to her about the bathroom. On the next day, by the time she arrived, the bathroom had been gutted. The door, the floor and the bath tub had been removed and only the frame of the room remained. She again told him that he should not have carried out those works.

23 On a previous occasion, Stella was aware that Con had removed some floor tiles in the kitchen and dining room. She was angry and disappointed and told him not to do it. She stated that her opposition to Con carrying out a number of the works, including removing the bath tub, removing the floor tiles, and removing the aluminium window frames, was based on sentimental reasons, because those items had been purchased or installed by her late husband. During her evidence, and in cross-examination, Stella was taken through a large list of items of works, which Con claims that he had carried out to the premises over the years. Apart from the works to which I have just referred, Stella stated that she was substantially unaware that the other works were carried out to the house at or about the time it is said that Con did them.

24 The principal witnesses called by the plaintiff in support of her case were her former husband, Con Lollis, her son Tony Loulatzis, her daughter-in-law Tracy Loulatzis and her nephew Panagiotis (Peter) Takakis. Lollis stated that, after he married Stella, they lived, during the 1980s, both at the Green Street property and also at a house which he owned in Braidwood Avenue, Rosebud. Lollis himself spent more time at Rosebud than at the Camberwell premises. He stayed at Rosebud on a number of occasions when Stella stayed at Camberwell. From the late 1980s Lollis lived only at the Rosebud premises. From the early 1990s the plaintiff moved to Rosebud to live with him on a permanent basis. He would drop her each day at the Green Street property, and he would then drive on to the nursing home in Ivanhoe.

25 Initially Lollis had a very close relationship with Con. However, after the "coffee table incident", their friendship cooled. Lollis stated that that incident occurred in 1989, but he also said, in his evidence, that the incident occurred after he was released from jail, which was in March 1995. I should remark that while, generally, Lollis had quite a good memory for connecting particular incidents, which he could recall, to other events which were occurring at the same time, he was not good at identifying the dates of those events.

26 Lollis was unable to say when Irene moved in permanently into Green Street. At one stage in his evidence he said that occurred in 1985 to 1986, while Con was still at university. However, later in his evidence, he stated that Irene seemed to be in and out of Green Street in 1995. In 1991, when Christina returned from America, Lollis was a witness to an argument which the defendants had with Christina. He said that, in the course of that argument, Con said to his sister "Get out from here, you bloody bitch". Lollis stated that, from the early 1990s, Stella and Irene did not have a good relationship. Indeed it would appear, from his evidence, that the plaintiff had a fraught relationship with both defendants. When he picked Stella up from the Green Street property at the end of each day to drive her to Rosebud, she was often quite upset, as a result of disputes which she had had with Con and Irene. Lollis stated that that seemed to occur from the time Stella first visited America in late 1991. During that period the defendants would, from time to time, visit Lollis at his nursing home, and consult him about difficulties which they were having with Stella. Lollis attempted to play the role of a peace-maker in those disputes.

27 Lollis stated that, during that period of time, he was present when, on a number of occasions, the plaintiff told the defendants to get out of the house or to pay rent. The defendants would respond "No, we stay in the house". During the same period, Lollis himself was encouraging the defendants to pay rent to the plaintiff. On some occasions Con said that he would move out, but "not yet". On one occasion, Con told Lollis that he would go to live in the Point Leo house, and that the defendants wished to move to Point Leo before their son Pantelis commenced school. During that period Stella was often saying to Lollis that she wanted the defendants to vacate the premises at Green Street or pay rent to her for occupying it.

28 Lollis stated that when Stella returned from her first trip to the United States of America in late 1991, she was very upset to find that in her absence Con had rendered the house. She told Con not to do it, as she liked the house as it was. In the early 1990s Con wanted a workshop under the house. Lollis helped him to put in a workshop, putting supporting beams under the floor, and inserting columns. Some bricklayers installed a floor, for which the plaintiff paid. At the same time Con and Lollis, together with a couple of Con's friends, rebuilt the front fence.

29 Lollis stated that, in the early 1990s, the house was in good condition, it was nice inside and outside, and it presented as a new brick veneer. At that time Con removed the tiles from the floor of the kitchen and the dining room and polished the floorboards under it. Stella told him not to do it. She was angry and said that she was not happy with having the work done. Subsequently, Con removed the window and small balcony at the front of the house, and installed a bay window in their place. This was the cause of a substantial dispute between Stella and Con. She told him to get out of the house because it was her house. On another occasion, Stella told Lollis that Con had changed the bathroom. She was very upset, because that was where she had bathed her children, and her husband had installed the bath.

30 Anthony Loulatzis ("Tony") was the third witness called on behalf of the plaintiff. He stated that after his marriage in 1986, he and Tracy lived in Chadstone. Their first child, James, was born in 1989. At that time he had no recollection of Irene being involved with Con. His mother did not speak of Irene at that time. During that period Stella was living at the Green Street property, but Con Lollis had already moved to Rosebud. In the following years Stella lived at Rosebud, but spent a lot of time at Green Street.

31 Tony stated that when his sister Christina returned to Australia from the United States of America in early 1991, she had an argument with Con at a family dinner. Christina accused Con of trying to take over the family home. By that time Con had already carried out some works to the house. On the following day, Con visited Tony and his wife Tracy ("Tracy") at their home in Chadstone, and reassured them that he was not trying to take over the house at Green Street, but that he was carrying out the work there for his father's memory.

32 Tony was able to recall some work which was carried out to the front fence. Con coordinated the construction of the fence. At the same time Con and Stella dug out an area under the house, and some concrete was poured there and RSJ beams were put in. The area was developed for storage under the house.

33 In early 1993, Tony and Tracy moved into the Green Street house with their young son, while they were building a new property at Warranwood. While they were living there, they had a number of arguments with Con. At that time Irene was not living at the house. In his evidence, Tony stated that at that time it was difficult to gauge the extent of the relationship between Con and Irene, because Con made a number of negative and disparaging remarks about Irene. At that time, Irene would quite often call in to the house. At that stage Con did not speak about having plans for the future with Irene. Stella would say that she could not see why Irene was staying at the house, as she had her own home.

34 Tony confirmed that at the end of 1994, while Lollis was in jail, Stella lived at Green Street, but returned to Rosebud when Lollis was released from prison in March 1995. Tony and his wife would often take Stella to the prison at Morwell to visit Lollis.

35 At that stage Stella was still paying the bills in respect of the house at Green Street. She complained to Tony that should she not be paying the bills for Con to be living at the Green Street property. She first made that complaint to Tony in about 1995. She said that, if Con was not paying rent, and was not prepared to move out of the house, she should not be paying the bills. At about the same time Stella told Tony that she had asked Con to either pay rent or move out of the property. She made that remark to Tony on a number of occasions. Stella was upset, because she had asked Con to leave the property or pay rent, and Con would not comply. At that time, Stella had a lot of Christina's furniture, which she had purchased, at Green Street. Tony stated that he could not recall seeing Irene at the Green Street property at the time that Con Lollis was in jail.

36 Tony stated that, in the ensuing years, between 1995 and 2000, he did not have a great deal to do with his brother Con. However, from time to time, he spoke to Con on the telephone, and asked Con to leave the property or to pay rent. Tony raised the matter with Con because it was making his mother very angry at the time. Those discussions ended in an argument between the two brothers. Generally, Con stated that he needed time to move out, and in particular that he needed time to relocate his family and his business. In cross-examination, Tony acknowledged that he did not recall any occasion when Con, Stella and he were all present and at which Stella asked Con to either get out of the property or pay rent.

37 During that period Stella was becoming upset that a number of works were being carried out by Con to the property without her knowledge. Those works included the external rendering of the brickwork, and the removal and replacement of windows at the front of the house. Stella was very upset, because she did not consider that there was any reason for the windows to be replaced, and because Con had taken the windows out without her knowledge.

38 Tony attended the Australian Football League Grand Final in 2001 with Con, Con's son Pantelis, and Tony's son James. When they returned to the Green Street property after the game, Con showed Tony some plans of a proposed extension at the Green Street property. Tony did not say anything to Con at that stage, because he did not want to have an argument with Con in front of his own son. However, a few days later, he telephoned Con and asked him not to do any work as the house was not his. Con responded that everyone had left the house, and that he had been left to look after things. The conversation was unpleasant and degenerated into an argument.

39 Tony stated that when his sister Christina brought proceedings against Stella, both he and Con helped her to defend them. They each paid some of the legal costs to the solicitor who was engaged to act on behalf of the plaintiff, Mr Barry Kenna.

40 Tony further stated that in about 1995, Stella told him that Irene had moved into the Green Street property. At that time Stella used disparaging language when speaking about Irene. She was not happy that Con and Irene were both living in the house at Green Street, and were not prepared to pay rent. In cross-examination, Tony denied that the source of irritation to Stella was the fact that Irene and Con were not married. In re-examination, Tony pointed out that he had lived with his wife for a period of one year before they were married, and his mother was not unhappy about that. In cross-examination, he stated that the source of his mother's anger at the time was the fact that Irene had moved into the house with Con, and that neither of them were paying rent, despite being asked to pay rent or move out.

41 Tony also stated that, over the years, Stella expressed reluctance to force Con out of the house, because she was concerned, from time to time, about his state of health, and she was also concerned that it might be detrimental to his business and that he might need to get back on his feet. In cross-examination, Tony recalled that, at some stage in the mid 1990s, Con had difficulties with a black ban which had been imposed on his business by the trade unions. Tony stated that at no time had Con mentioned to him that Stella had made a promise to him that if he was to settle down with Irene and have children with her, and renovate the house, she would give him the house at Green Street.

42 The next witness called on behalf of the plaintiff was her nephew, Panagiotis (Peter) Takakis. Mr Takakis is two years older than Con. His mother died when he was young, and, from an early age, he was close to the Loulatzis family. Con was his best man when he married in 2001. Between 1995 and 2005, Con and Peter Takakis went to the football together six or seven times per year. Mr Takakis stated that he has been estranged from Con over the last two years, and he has not spoken to Con during that period.

43 Mr Takakis stated, that from about 1990 onwards, Con and Irene went around together and visited people together as if they were a couple. Con did not tell Mr Takakis that he was thinking of getting married. Mr Takakis never heard Stella encourage Con to settle down and marry Irene. In about 1995, Irene began living with Con at the Camberwell property. Stella told Peter Takakis, on a number of occasions, that she was not happy that Irene was living there. The relationship between Stella and Irene was not good, and Stella did not feel comfortable in going to her own house while Irene was there. She told Mr Takakis that she had tried to talk to Con to persuade him to leave the house. That conversation went on over a number of years. During that period, Mr Takakis perceived that his aunt was becoming unhappy and anxious about the matter. Accordingly, on a number of occasions, he took it upon himself to raise the subject with Con. Those conversations occurred en route to the football, and on other occasions. He would say to Con words to the effect of "What's happening, have you sorted the matter out?", to which Con replied "No, Mum still wants to get me out". Mr Takakis encouraged Con to resolve the matter with his mother.

44 During that period Stella mentioned to Mr Takakis, on a couple of occasions, that she thought she would take legal action about the matter. On one occasion, Mr Takakis stated that he was present when Con and Stella were also present. During that conversation Con said "I should not pay rent because I have done renovations here and that would cover it", to which the plaintiff responded "Well that is not right". In cross-examination Mr Takakis stated that that conversation occurred about 10 years ago. Mr Takakis could not recall who had brought up the topic of rent. However, that topic was discussed in the context of the renovations carried out by Con. Stella said that Con had not paid rent, and Con replied that he had renovated the property and should not have to pay rent. In cross-examination Mr Takakis stated that he was "pretty sure" that that conversation occurred, but he was not 100 percent sure, and he could be wrong. In re-examination he reconfirmed his version of the conversation, namely that during a discussion about rent, Con responded by saying that he had renovated the property at his own expense.

45 Mr Takakis also stated that on one occasion, after he had visited Con at his Point Leo house, and while they were driving "back" from Point Leo, the question of Con paying rent for his residence at the Green Street property arose. Mr Takakis asked Con what was the situation with the renovations, and whether he had talked to Stella about the rent. Con replied "Mum won't listen to me about that". Mr Takakis told Con that he should try to resolve the matter with his mother. In cross-examination, Mr Takakis was unsure whether the conversation occurred while he and Con were en route to shops from the Point Leo property, or whether they were travelling back to Melbourne. He stated that the conversation occurred in about 2002 or 2003. He stated that the last time he saw Con was when Con's daughter Violetta was born. When Mr Kendall QC, who appeared with Mr Mattin for the defendants, pointed out that Violetta is now five years of age, and thus the conversation could have occurred no later than 2002, Mr Takakis stated that that did not make his evidence about the conversation in the car false, but that he might have been wrong about the date on which it occurred.

46 Mr Takakis stated that when he visited the Green Street property, he could see there had been some renovations carried out to the property. He thought that some renovations in the back room had been carried out at the back of the house during the last 15 years before 1997. In fact, it seems that those renovations were carried out much earlier, in the early 1980s, by Stella. During the 1990s, Stella told Mr Takakis that Con was renovating the Green Street property without her permission and knowledge, that she did not agree with what Con was doing, and that she was concerned about it. She made that remark to Mr Takakis on three or four occasions. She complained that some windows had been taken out of the Green Street property without her permission and that one of them had been taken to the Point Leo property. Stella was not happy about Con doing renovations at the house in her absence and without consulting her. Mr Takakis stated that he never heard Con or Stella mention to him any agreement, by which Stella would give Con the house, if Con was to settle down with Irene, have children and renovate the house.

47 The last witness called on behalf of the plaintiff was her daughter-in-law, Tracy Loulatzis ("Tracy"). Tracy stated that in April 1991, when their son was 18 months of age, she went back to work. Stella would come and look after their son, James. Tony would then drive her back to Green Street, where (Tracy understood) she was then living.

48 In 1991 Tracy attended a dinner at Green Street, when Christina had returned from overseas. She said that Christina, Tony, Stella and Con were present. She was not sure if Lollis was there. Her memory was that Irene was present, but she could not be certain. An argument erupted during the meal between Christina and Con, in which Christina accused Con of taking over the house. Tony and Tracy left. On the next day Con visited them at their house and they spoke in the kitchen. Con said that Tony and Tracy should not believe what Christina was saying, that what he (Con) was doing at the house was for his father's memory.

49 At that time Tracy considered that Con and Irene were friends. In early 1993, Tony and Tracy moved into the house at Green Street, while their own house was being built at Warranwood. They left in May or June, because their relations with Con had broken down. During that time Irene was not living there, but she visited the house, and sometimes she stayed overnight. Tracy's perception was that Con and Irene were, by then, a couple. Stella would come to the house to visit it. Tracy does not recall any remark made by Stella about Irene at that time.

50 When Tony and Tracy left the property in 1993, they were not on good terms with Con. Tracy had very little contact with Con in the ensuing years. She could not recall visiting the house at Green Street after 1993.

51 Tracy stated that, in the early 1990s, she did not hear Stella express any desire that Con should settle down with Irene and have children. Subsequently Stella, on occasions, used derogatory words when talking about Irene.

52 Tracy stated that, from late 1995, Stella used to speak about Con, and say that it was time that Con moved out of Green Street, and that she wanted him to move out. From time to time Tracy would ask Stella what was happening in that respect, and at different times Stella would give her different answers. She would say that there were problems with Con's business, that he was not well, or that Irene was pregnant, and that that was why they had not moved out. She did not tell Tracy why she wanted Con to move out of the house, just that it was time to move on. In one conversation Stella said to Tracy "Well, if he's not going to move out, then he can pay me rent". In cross-examination, Tracy agreed that she had never heard Stella, in her presence, say to Con that he should get out of the house at Green Street, or that he should pay rent.

53 During that period, Stella made mention of work being carried on by Con at the house at Green Street. Stella was unhappy about the windows having been taken out of the front of the house, because she had spent good money on them having put them in there, and she did not see why they should be changed. She told Tracy that she had had no knowledge that the work was going to be done, and that she was very upset. Stella said "It's my house, why are they changing the windows?"

54 In Christmas 2001, Tony and Tracy attended a Christmas celebration at Stella's house at Mt Martha. Con arrived on his motor bike. Tony went to another part of the house, because he did not want to speak to Con. Tracy spoke briefly to him, and apart from greeting him, avoided speaking to him. Tracy saw that Con had some papers at the back of his motor bike, but she did not see what they were. A short time later, either still at Christmas time or in early January 2002, Stella told Tracy that she was very upset, because Con had plans to have the builders come in the next day, and she did not want him to start work on the house. Stella said that Con had told her that the builders were coming, and she asked Tracy to telephone Con. She said "Con won't listen to me, he might listen to you, will you please call him?" Tracy did not want to telephone Con, but she made the call at the insistence of the plaintiff. She rang Con and said "I believe you have got builders coming in tomorrow, your Mum does not want you to do any work on the house. You will be wasting your money if you spend any work on the house with the builders". Con responded that it was none of Tracy's business, and she should stay out of it. Tracy replied "Don't tell me this has anything to do with your father's memory, because we both know it hasn't". Con became abusive, and the telephone call ended. In cross-examination, Tracy denied the suggestion that, in their conversation, Con had said to Tracy, in relation to the plaintiff "She hasn't told you, has she?".

55 The evidence of Con Loulatzis involved a detailed description of renovation work which he carried out to the premises at Green Street between 1990 and 2003. Before summarising his evidence, it is useful first to give a brief description of the layout of the house. During the trial there was disagreement as to the correct names which should be given to each of the rooms. The first defendant appended to his counterclaim a document headed "Annexure A: Particulars of Repairs and Improvements". For the purposes of convenience, I shall adopt the nomenclature used in that document in referring to each of the rooms in the house.

56 The property runs in a northern direction from Green Street. There are five rooms on the eastern side of the house. Proceeding from south to north, those rooms are referred to as the loungeroom, the bathroom, the second bedroom, the utility room, (previously known as Christina's bedroom), the shower in the utility room, and bedroom No. 1 (previously known as Christina's workroom). Bedroom No. 1, and the room immediately above it, were added to the premises in the early 1980s. The upstairs room was used by the youngest son Nicholas as his bedroom until approximately 1989. It is now used by Con as his study, and will be referred to as "the study".

57 On the western side of the property, proceeding from south to north, are the master bedroom, and the kitchen/dining room. To the west of the dining room are the laundry and a second toilet. The front rooms to the house are divided by the front entrance hallway, which runs alongside the master bedroom on its western side, and the loungeroom and bathroom on its eastern side. It leads to the kitchen.

58 Con stated that he has always lived at the premises at Green Street. After the plaintiff's marriage to Con Lollis in 1983, she lived alternately at Rosebud and Green Street until 1989. By the end of 1989, Stella and Lollis had moved in together at Rosebud, and Con visited them there in 1990 on his motorbike. After 1989, Lollis would regularly drop his mother at Green Street, where she would spend the day. She would clean the house, wash and iron his clothes. She would cook the evening meal for herself and Lollis, and leave part of that food for Con. Lollis would pick her up in the afternoon from the driveway, and they would return to Rosebud. After Stella moved out, she removed most of her furniture in 1990, but she left a cupboard, a set of drawers and her bed in the master bedroom until 1997. She also left furniture belonging to Christine at the Green Street property, which she removed to the Mt Martha house in 1997. In the period up to October 1995, Stella used to visit the Green Street property two to three times per week. Between October 1995 and August 2003, her visits decreased. She only visited the premises on four or five occasions in 1996, and in 1997 on only ten to twelve occasions. Between 1998 and 2001, she visited the house once per month. In 2002, she visited the house on a few more occasions, because Con was assisting her with the case brought against her by Christina.

59 In 1990, Con commenced to carry out work to replace the front fence, which was also a retaining wall, and to dig out the cellar. The cellar, which is an area under the front verandah, had initially been dug out by Tony and Stella during the 1980s. Con decided to expand it. He stated that he did some of the work on the front fence, and bricklayers were engaged for it. Lollis put in an agricultural drain under the front fence, and also changed the sewer line. In the meantime, Con commenced to dig out the cellar area under the house. For that purpose the foundations needed to be underpinned, so that more concrete had to be poured under the existing foundations. Con carried out that work under the guidance of Lollis. When the area had been dug out, it was painted and shelving was installed. Con has used it as a storage and work area.

60 Con commenced an arts degree at Latrobe University in 1983. He completed his undergraduate degree in 1985, and completed his Honours year in 1986. While he was at university he met Irene. At that stage he and Irene were friends. They remained friends for a period of five years. In 1988 Con went overseas to India, and Irene went to Europe. They had arranged to meet together in Greece. When they were in Greece, they stayed together in Con Lollis' brother's place and also at Stella's sister's place. Con then returned to Australia in order to have his knee operation undertaken. When Irene returned to Australia, she visited Con at the Green Street property. They went on a trip together to Broken Hill in October 1989. Con and Irene decided to reacquaint themselves, and work out whether they would have a relationship.

61 Con stated that, while he was overseas in 1989, he spoke to his mother by telephone. Irene had visited Stella, in order to see if there was anything she wished Irene to take to Con when she met up with him. Stella was enthusiastic about Irene at that time and was always asking about her. She started to suggest that Con should settle down with Irene and get married to her.

62 After Con returned from Europe, Stella continued to encourage him in his relationship with Irene. One day in 1990, Con was working on some dwarf walls in the front garden. At that stage the front fence had nearly been completed. Stella came into the front garden and had a chat with him. She said, "Look, you know, Irene's a very good girl, she's pretty, she comes from a good family, and look, you know, if you get married and have children and you fix the house up you can have the house, the house is yours". Con replied, "Great". He said, "Thanks very much Mum". In his evidence he said he felt as if his heart had been quickened. At that time, he stated, Irene and he were a couple, and had been a couple for some time. After the conversation, Lollis came and picked up the plaintiff and they went off to Rosebud. Con told Irene what his mother had said to him. He said, "Mum reckons if you and I get married and have a couple of kids and I fix up the house, I can have the house". Irene responded by saying, "You have a lot of work to do" (referring to the work needed to fix up the house). At that time, Irene was staying off and on at the Green Street house on about two or three nights per week. She was then working shifts on the other side of town. Irene moved into the Green Street property to live permanently in 1995.

63 In his evidence Con stated that, at about the time of the conversation with his mother in 1990, and in the ensuing period, it was understood by Irene's parents, and by Lollis and Stella, that Irene and he were going to get married. Irene's parents discussed with Con about getting married to Irene. In addition, Irene's parents, in the presence of Stella, discussed in which church the marriage would take place. Stella insisted that there should first be a ceremony of marriage in the Greek Orthodox Church, followed by a separate ceremony in the Catholic Church. At one stage Lollis did work for Irene's parents at Rye during this period. Con said that Irene and he did not get married, because events overtook the importance of the need for a formal ceremony. He stated that those events were the arrest of, and criminal proceedings involving, Lollis and Stella.

64 Con stated that, after his discussion with Stella on the front lawn, he proceeded to completely renovate the house. Those works commenced in 1990. He continued working on the cellar, which involved a large amount of physical work digging out and extracting materials from underneath the house. He then commenced renovating some floors, skirting boards and architraves on the inside of the house. He also did some preliminary plaster work. The earlier work was done in the front part of the house, in the hallway and in the second bedroom. Stella, when visiting the premises, was regularly aware of the works which were being, and had been, undertaken by him to the house, and she did not express any disagreement with those works, or demur at the carrying out of those works.

65 In his evidence Con confirmed that he carried out the works, which are set out in substantial detail in Annexure A to the counterclaim. He described some of those works, room by room, in the order set out in Annexure A. In summarising the evidence by Con as to those works, it is more convenient if I endeavour to do so in the chronological order in which he carried them out.

66 Some of the earliest works seem to have been conducted to the hall entranceway, with the instalment of a skylight in 1991. Con carried out some renovation work to bedroom No. 2 in 1993 to 1994. Between 1994 and 1999, he renovated the loungeroom, and between 1992 and 1998 he renovated the master bedroom. In about 1994, he replaced the aluminium sliding door and balcony to the lounge room which had been previously installed by Stella, and replaced them with a bay window. At the same time he removed the aluminium framed window from the master bedroom, and replaced it with a new double-hung window. He explained that he considered the two aluminium framed windows to be ugly and impractical, and he considered that the windows which he installed were more in keeping with the period in which the house had originally been constructed. The work to the loungeroom included replacing the ceiling on a suspended metal grid and replacing the cornices. The plaster wall was replaced. An archway was installed to match the existing archway in the hallway. Window shutters were installed. The old Vulcan gas fireplace was removed, and replaced with a new firebox. In the master bedroom, a built-in robe was installed, cedar shutters were fitted to the window, the architraves and skirting boards were stripped, sanded and re-varnished, and extensive plaster works were carried out. The carpet was removed and the floorboards were re-sanded and polished. Insulation was installed in the ceiling of both the loungeroom and the master bedroom.

67 In 1994 to 1995, Con removed the tiles from the floor of the kitchen and dining room with the help of his mother. The tiles which had previously been used in those areas were in fact wall tiles, and they had delaminated. He carried out further works to the kitchen-dining room area in 1997 to 1998. He replaced the archway between the kitchen and loungeroom because it was out of balance. He replaced the double sink in the 1990s, because the existing one leaked. In addition, in 1997 he renovated and redesigned the laundry and toilet. He removed the cupboard in the toilet area, and moved the wall between the toilet and laundry, so as to make the toilet smaller and the laundry house larger. He installed a new double trough to replace the single trough in the laundry. He fitted a new cedar window, replaced all plaster walls and ceilings, and installed new laundry cupboards, new tiles and architraves and skirting boards. In the toilet he installed a new toilet, hand basin, towel rail and exhaust fan.

68 In 2000, Con straightened and reinforced the original timber frame to bedroom No. 1 and to the room immediately above it (the study). The plaster had to be removed and the timber re-blocked. Between 2000 and 2003 he substantially renovated both of those rooms. He replaced the flat roof above the study with a pitched roof in 2003. In the meantime, in 2000 he had renovated the utility room (previously Christina's bedroom) and the shower which was next to the room.

69 In 2002 to 2003 Con extensively renovated the bathroom. That work included removing all existing plaster, re-rendering the walls and installing new tiles, removing and replacing shower glass, installing a toilet, removing the sub-floor and installing new flooring, installing a new skylight, installing an inbuilt cabinet with internal electrical fittings, and other works to the fittings. At about the same time, he removed all of the aluminium framed windows in the house and replaced them. In 2002 he carried out further renovations to bedroom No. 2, which then became the bedroom for his second child, Violetta, who was born in November of that year. In 2003, he extended the hall entranceway some 600mm or 900mm to the south with a consequent change of the position of the front door.

70 Con also described works which he carried out to the exterior of the premises. In 2003 he replaced the rear fence. At about the same time he had to have the large pine tree at the rear of the property removed, because its roots were growing under the slab of the study, and the house was beginning to move. He installed two water taps in the back yard. In 1995 he rendered the front of the house. He denied that he did so in 1991. He said that when the plaintiff returned from her overseas trip to the United States, she said, "Gee, it looks just like all the houses in America." Subsequently, in 2002 to 2003, he put a new render over the initial coat. Con also described a number of works carried out to the outside front of the house. They were carried out over the entire period from 1991 to 2003. At the rear, the external staircase was removed because the stairs had become rotten. In 1996, the defendant replaced the staircase, placing it alongside the house, and constructed it of blue jarrah timber. The roof tiles were fixed, and roof tile ridges were re-pointed, in 1998 to 1999. In 2002 to 2003, he replaced all the external aluminium frame windows except for the rear sliding door. As I stated, in 2003, the first defendant constructed a pitched roof over the study, in order to replace the flat roof.

71 Con stated that Stella visited the house throughout that period. She did not complain about the works. On occasions she complimented him in respect of them. He said that at no time before the issue of the writ in this case in October 2003 did Stella make any demand of him, or request of him, that he pay rent. He said that in October 1995 he received the Notice to Determine Tenancy in the letterbox. It was undated and unsigned. He repudiated Stella's evidence that she visited him and spoke to him on the verandah of the house relating to that notice. He said that that did not occur, and described the plaintiff's evidence as to that meeting as a "blatant lie". Con said that, after he received the notice, he telephoned his mother in Rosebud. He said to her, "What is this all about?" to which she replied, "What's what about?" Con said, "This letter that I've got in the letterbox" and described it to her. Stella stated that she did not know what Con was talking about, and she denied any knowledge of the letter or of its existence or its origin. Con said, "Well, as you know we had a deal, what does this mean?", to which Stella responded, "Yes, I know, it's okay, don't worry about it." Con stated that he suspected that the notice had come from one of his brothers or his sister. Almost immediately after his conversation with his mother he threw the notice in the rubbish tin.

72 Con denied that, at any time during the period, his brother Tony made any objection to him living in the house. He said that Tony never told him that he should pay rent. Similarly, he denied the evidence of Mr Takakis that he had raised the issue with him. He also denied the conversation which Mr Takakis stated occurred in the motor vehicle coming back from Point Leo.

73 Con stated that, in that period, his business, Icon Solid Plastering Services Pty Ltd ("Icon Plastering"), was faring well financially. By 1995 he was able to maintain a regular income. Since then, it has been a successful business and he has a number of employees. He denied that the financial state of the business, or his health, was such during the period from 1995 to 2003 that he could not have moved out of the Green Street property had he been required to do so. He denied that he ever used either the financial state of Icon Plastering, or his own health, as a pretext or reason for continuing to reside in the Green Street property.

74 In 2001, Con engaged an architect to prepare concept drawings for proposed extensions, which he wished to carry out to the rear half of the house. Those drawings are Exhibit 8. In about late February, or early March 2001, he visited Stella on his motorbike in Mt Martha. He took the plans with him and showed them to her. Stella's only concern was that the planned extension would penetrate too far into the back yard. She did not tell Con that he should not, or may not, carry out the works.

75 Following that visit, Stella did not speak further to Con about the plans, which Con had shown her. On Grand Final day 2001, Con went to the football with his brother Tony, and their sons Pantelis and James. When Tony and James arrived at the Green Street house in the morning, before going to the football, Con showed Tony the work which he had carried out around the Green Street property. Tony did not raise any objection to that work. Con then showed Tony the plans while they were in the upstairs study. He described the work which was to be carried out. Tony did not make any objection to the plans.

76 Subsequently, between September 2001 and the end of 2001, Con had a discussion with Stella about the plans. On 24 October 2001, the architect had requested a copy of the certificate of title. Con telephoned Stella and asked her for a copy of the title, as he knew that she had the title. In response, Stella visited Con at Green Street and handed the title to him. He gave a detailed description of the document produced by his mother, in terms which would describe a duplicate certificate of title. He photocopied the title, and gave it to the architect. Subsequently the architect returned the title to Con and he then returned it to Stella, but retained the photocopy for himself. When Stella gave Con the title, he showed her the plans for the proposed extension. Stella did not tell Con he should not proceed with the plans. She asked Con about the cost of the proposed work, and she also expressed concern that the work might intrude too much into the garden. Some time after Grand Final day 2001, Tracy Loulatzis telephoned Con at Green Street. She said, "Your Mum says there's builders starting at your place tomorrow and she does not want you to start any building work." Con said, "She hasn't told you, has she?" Tracy replied, "What are you talking about?" She added, "You are not doing this in your father's memory, that's a lot of rubbish." Con denied that he was abusive to Tracy during that conversation.

77 Con stated that his mother had never told him that he had been cut out of her estate by a will that was made on 2 November 1995. She never discussed with him how she was intending to divide her estate after her death, or who would be her executor.

78 In late 2001 Stella was sued by her daughter Christina. Initially in his evidence Con did not recall seeing, at that time, or any time thereafter, the initial letter of demand made by Christina, dated 14 December 2001. Subsequently, in his evidence, he recalled seeing that letter at about the time. Con arranged for Stella to see his solicitor, Barry Kenna. During 2002 Con paid two bills of Mr Kenna, one for $5,000 plus GST, and the second for $1,500 plus GST. On 24 October 2002, Con and Stella attended a mediation of Christina's claim. Before then he had read a copy of an affidavit sworn by the witness to his father's will, Mrs Easton. Mrs Easton stated that she did not sign the will, as witness, in the presence of the testator. While Stella and Con were at the mediation, Con asked Stella what it was about. He expressed concerns as to the implications of the affidavit. Stella responded that a social worker had filled out the will in the hospital, had given it to her, and asked her to get someone else to sign it. Subsequent to the mediation, Mr Kenna, on behalf of Stella, received advice from a barrister. Mr Kenna told Con the substance of the advice, and he relayed it to Stella. Con was not happy with the fact that there was a reasonable possibility that his father's will might be overturned. He was concerned with the possible consequences, should Christina win her challenge to the validity of the grant of probate in respect of the will. He warned Stella that, if he found out that there was merit in the affidavit sworn by Mrs Easton, there would be a lot of trouble.

79 Con also stated that, before the commencement of the divorce proceedings between Stella and Lollis, he had a conversation with her in the driveway of Green Street, Burwood. She said to him, "I'm going to fix that sister of yours first, I'm going to fix Con Lollis, and then I'm coming after you." In saying that she pointed directly at Con.

80 Con stated that, from about 1991 onwards, he paid the majority of the gas, electricity and telephone bills, but his mother might have paid some of them. From 1995, he paid all of the rates in respect of the Green Street property.

81 Con stated that if his mother had not, in 1990, assured him that he would own the Green Street property, he would have purchased his own house in the same area. At that time similar houses in that area would have cost between $140,000 and $180,000. He would have been able to service a mortgage at that time, which he would have needed to purchase the property. He would then have proceeded to carry out renovations to the house. He further said that if he now has to vacate Green Street, he could not afford to purchase another house in the same area. He purchased the house at Point Leo for $150,000 in Irene's name. He has only carried out minor renovation works to that property. He has never intended to live there (except after his retirement), or to move his business there. He denied telling Stella that he would be moving his home and business to Point Leo.

82 The second named defendant, Irene Petruccelli ("Irene"), also gave evidence. Irene said that she met Con at university in the 1980s. At that time they were friends. During that period she met the plaintiff. In the period 1984 to 1987, Irene did not have frequent contact with Con as she was in a relationship with someone else. They had telephone contact in 1988. In that year Con went to India, and Irene was shortly thereafter due to travel to Europe. They planned to meet together in Greece. Before Irene departed for Europe she visited Stella, to see if Stella wished her to take anything over to Con. They had a casual conversation.

83 As planned, Irene met Con in Greece. They travelled to Turkey, and it was there that their relationship became intimate. During that time Con was speaking on the telephone to Stella. Con and Irene then went to Athens to stay at Stella's sister's house. Irene remained in Europe while Con returned to Australia. When Irene returned, Con had had his knee operation. She visited him at home. Later in 1989 Irene and Con drove to Broken Hill. Irene said that the purpose of the trip was to reaffirm their commitment to each other.

84 In 1990, Stella was living in Rosebud with Con Lollis, but was visiting Green Street during the day. Irene stayed overnight at Green Street quite frequently. She was then working shift work. By 1990 Irene had met Tony Loulatzis, but not frequently. Around that time she attended functions of the Loulatzis family. Stella was cordial and pleasant to her at those functions.

85 During 1990, Con told Irene that his mother had told him that "if you settle down, get married have kids, and fix the house, the house is yours". By that time, Irene and Con were definitely a committed couple to each other. Irene considered that the conversation which Con had with his mother was "very grounding", amounting to an affirmation by the plaintiff that her son had reached a mature state, and that Irene and Con were serious about each other.

86 In 1991, Christina Loulatzis visited Melbourne. Irene did not attend the family dinner. However, within a week of that family gathering, Irene visited Green Street. She was present when Christina and Stella had a disagreement. When Irene attempted to pacify them, they turned on her, and yelled at her. Irene retreated to Con's bedroom, to which Con had already withdrawn.

87 In 1993, when Tony and Tracy stayed at Green Street, Irene also stayed there between shifts. Irene stated she did not witness any disputes between the brothers. However, she considered that Tracy's relationship with Con was not easy, as Tracy felt that her "space" was impinged on.

88 Irene further stated that, by the time Con Lollis had been sentenced to jail in late 1994, she had been staying at the Green Street property on two or three nights a week. She was not present when there was an incident between Con and Stella on Christmas night. After Lollis was released from jail, Stella and he went overseas. While they were overseas, Irene moved into Green Street. When Stella returned from Greece in September 1995, the relationship between her and Irene remained pleasant. However, on one occasion, when Stella visited Green Street, her mood to Irene changed while the pair were talking to each other. Stella raised her voice at Irene and swore at her. When Irene started to leave the premises, Stella pushed her physically against the front landing. Irene swore back at Stella, and then left the property. Irene telephoned Con Lollis to find out if there was something wrong. Lollis said he did not wish to be involved.

89 Irene stated that, notwithstanding that incident, Stella continued to visit the house between 1995 and 1997. She said that at no stage before Pantelis's birth in 1997 did Stella ever say to her that she should either pay rent or leave the house. Irene said that if she had known that the house belonged to Stella, and not to Con, she would not have established her family there, and that she and Con would have purchased their own property elsewhere.

90 After the incident which I have just described, Con told Irene that he had received a notice in the letterbox. Irene did not see that notice, nor did she receive a notice addressed to herself. Irene denied the evidence given by Stella that she came and talked to Irene and Con on the verandah about the notice. Irene stated that she had no discussion with Stella about the notice. The only legal notice which she has received from Stella was when Con was served with the writ in October 2003. Further, Stella never told her that she had cut Con out of her will. Irene stated that, until she and Con received the letter of demand from CE Lawyers dated 8 August 2003, Stella had never asked her to pay rent or to get out of the house. She never heard Con say to Stella that he would leave the house.

91 After Pantelis was born in April 1997, Stella came to see him. She continued to visit her grandson, and bring him presents, on milestone occasions such as Easter, Christmas and birthdays. After Violetta was born, Stella visited Irene in hospital. In addition, Irene has taken the children to see Stella at her home in Mt Martha, both with and without Con.

92 In 1996 the Point Leo property was purchased in Irene's name. Irene stated that she and Con have never had any intention of living permanently at Point Leo. She described the renovations and changes which she and Con had made to Point Leo, which were not particularly extensive. In 1998 the plaintiff's furniture was taken from Green Street to Mt Martha. Con and Irene moved into the master bedroom in the same year.

93 Irene also described the renovation work which Con carried out to the Green Street property. She said that in 1990, the house looked as if some years had passed since any maintenance had been done on it. At that stage the front fence had been reconstructed, and the work on the cellar was under way. Between 1990 and 1995, Con continued to work on the cellar, and the driveway was widened. Inside the premises the carpet was removed from the hallway, the second bedroom and the master bedroom. The skirting boards and architraves to the hallway were removed and the paint stripped back, the hallway wallpaper was removed, and the old plaster was removed and replaced. In 1995 Con rendered the outside of the house. At that time Con Lollis was present.

94 Irene stated that, before Pantelis' birth, Stella was present when the works were being performed. Stella did not complain to Con about the work being done, or ask why it was done. Between 1995 and 2001 the exterior of the house was done and the back rooms worked on. The laundry toilet area was gutted, restructured and renovated. Stella did not complain about any of those works. In 2001, Con had sketches and plans prepared for an extension to the house. Irene described how Stella visited them in late 2001 in relation to those works. Irene knew that Stella came to bring the certificate of title with her. Stella went upstairs with Con and spent some time with him.

95 In the next year, 2002, the bathroom, which required repair, was gutted and renovated. Stella did not make any complaint about that work. Irene said that before the issue of these proceedings, Stella never complained to her or, in her presence, to Con, about the work. During the period of renovations after 2001, Stella would visit the house about once every three weeks. In cross-examination, Irene stated that, when the tiles to the kitchen and dining room were removed, Stella helped, by removing the debris which was placed in the buckets. Stella did not say that that work should not be undertaken.

96 The other substantial witness called on behalf of the defendants was Mr John Browning, a professional building consultant. Mr Browning gave evidence as to the value of the renovation works which the first defendant has claimed to have carried out at the premises at 25 Green Street. For that purpose, Mr Browning inspected the property on 2 March 2006. For the purposes of his inspection, and calculating a value to be attributed to the work carried out by Con, Mr Browning made reference to Annexure A to the counterclaim. He expressed the view, by way of general impression, that the works carried out by Con were of a very high standard, finish and workmanship. The materials, which had been used by the first defendant, were quality materials. For example, Con had used shielded wiring for the top end hi-fi system, he had installed extensive sound insulation to the office and bedroom beneath, and Mr Browning observed that there was meticulous detailing of the finishes in the renovation work. Mr Browning based the cost to be attributed to the work on rates applicable as at March 2006. Since the work had been carried out before that date, he applied the appropriate indices prescribed by Rawlinson's Construction Guide. On that basis, Mr Browning estimated that the invoice cost of the works carried out by Con amounted to $555,248. The estimated tender price of the works, applying a 25 percent builder's margin, was $694,059.99. Mr Browning stated that those costings were based on the work being carried out as part of the one project. He observed that, since the work had been carried out on a piecemeal basis over the years, it would have cost more, rather than less, since Mr Loulatzis would not have been able to utilise economies of scale and economies of operation. Mr Browning produced an extensive series of photographs taken by him to illustrate the work observed and costed by him.

97 The assessment of the evidence of the witnesses to whom I have just referred is not straightforward. The dispute in this case is the result of a very bitter, and so far irreparable, family dispute. A number of the principal witnesses, and in particular Stella, Con Lollis and Con, each manifested strong emotional responses to the dispute in the course of their evidence and in cross-examination. Understandably, each of the witnesses were, to some extent at least, affected by which "side" that witness had taken in the family dispute, and by that particular witness's feelings toward the protagonist on the other side.

98 This phenomenon was particularly acute in the case of Stella and Con. Over the years they have had a complex and often tempestuous relationship. Their dealings for very many years were characterised by outbursts of bad temper and anger towards each other. On his own admission Con has a fiery temperament, and in the past he has often had difficulty controlling his temper when relating to his mother and siblings. It is also clear on the evidence that Stella is a strong woman of feisty disposition. In some respects, the temperament and character of the plaintiff and her eldest son are quite similar. Thus they often came into conflict in the past.

99 Yet, at the same time, the relationship between Stella and Con, at least until the final rift in 2002, was particularly close. Con was Stella's eldest son, and she relied on him, from an early age, after her first husband's premature death. That pattern of reliance continued long after Con had reached adulthood. At times of family crises, it was to Con that Stella first turned for support and help. In turn Con responded, on those occasions, as a loyal and supportive son. Thus, in late 1994, Stella only told Con, and none of her other children, that she and Con Lollis faced criminal charges. Only Con attended the Court hearing with his mother, at which Lollis was sentenced to imprisonment. Tony and Tracy learnt of that proceeding when they read the newspaper the next day. After Lollis's imprisonment, it was Con who assisted his mother to run the nursing home. Again, in 2002, when Christina sued Stella, it was to Con that she primarily turned for help. Con arranged for Stella to see his own solicitor, Mr Kenna. Both Con and Tony assisted Stella in those proceedings, and each of them paid some of her bills. However, it was Con, not Tony, who took the lead role in assisting his mother in those proceedings. Thus it was Con who attended the mediation of those proceedings in October 2002.

100 That background to the relationship between Stella and Con is important to understanding, and making factual findings in respect of, the factual issues in the case. In 2002, shortly after the mediation of the proceedings brought by Christina, the relationship between Con and Stella suffered a rift, from which it has not, so far, recovered. They are clearly very bitter towards each other. The recollection, and evidence, of each of those principal witnesses, about the past events which are relevant to this case, has been coloured and affected by the tragic bitter dispute which lies between them. Each of them has viewed past events through a lens blurred by their emotional response to their falling out, and their natural desire to win this case. As I shall set out below, I formed the conclusion that Con Lollis and Irene were each particularly partisan in supporting, respectively, the case of the plaintiff and the first defendant. To some extent Mr Takakis was also quite partisan, out of a loyalty to his aunt. The other two major witnesses, Tony and Tracy Loulatzis were, in my view, significantly more objective. Nonetheless I did gain the impression that each, understandably, was affected, albeit to a limited extent, in their evidence by their feelings of affection and loyalty to Stella. In that context it has not been easy to make findings of fact. In order to do so, I have carefully read, and at the conclusion of the trial substantially re-read, the transcript, and subjected the evidence of each witness to careful scrutiny and assessment. Notwithstanding, and because of the absence of any truly independent witness in the case, I have had to take into account the fact that each of the witnesses, and in particular the plaintiff, Lollis and the two defendants, are substantially affected by their emotional responses to each other and to the case.

101 An additional complication in the assessment of important evidence given by a number of the key witnesses derives from the difficulty the witnesses had in accurately, or with precision, being able to relate events to particular dates, even in an approximate way. While that difficulty is understandable, and to be expected, it added to the problem of objectively weighing competing versions about particular incidents and events. In this connection, the evidence of all witnesses suffered to a greater or lesser degree, but particularly the evidence of Con Lollis and Peter Takakis, who each had poor recall of dates.

102 A second preliminary point should also be mentioned. It arises out of the manner in which a number of the witnesses of the plaintiff were cross-examined. At the commencement of the trial, Ms Sparke of counsel applied, on behalf of the plaintiff, to split her case, so that she might defer calling evidence on the issues raised by the counterclaim until the defendants gave evidence on that counterclaim. I ruled against that application. However, in the course of argument, and in that ruling, I made it plain to counsel for the defendants that, in order to avoid any unfair prejudice to the plaintiff, they must take particular care to comply with the requirements of the rule in Browne v Dunn.[1] It was evident that, when Mr Kendall cross-examined the plaintiff's witnesses, he sought to comply with that injunction. He cross-examined the key witnesses at substantial length. He put to them, often in detailed form, his instructions from the defendants in relation to a number of issues in respect of which those witnesses gave evidence. At one stage, after the completion of her evidence, Stella was recalled, so that Mr Kendall might put to her further matters, which he had overlooked while cross-examining her. However, when the defendants gave their evidence, their testimony covered matters which had not been the subject of cross-examination pursuant to the rule in Browne v Dunn. Furthermore, in a number of important instances, the evidence of the defendants contradicted, or was significantly different from, matters which had been put on their behalf in cross-examination of the plaintiff's witnesses.

103 It is, of course, trite that, in complying with the rule in Browne v Dunn, counsel need not put each and every detail of the client's case. Further, where there is a discrepancy between what has been put on behalf of the client, and the client's evidence, it is important to take into account that counsel, in the heat of cross-examination, may overlook putting particular matters to a witness which ought to have been put. Furthermore, errors and misunderstandings can occur when counsel takes instructions from witnesses, particularly in a case such as this, in which emotions have run quite high. Nonetheless, on some important issues, the evidence of both the first defendant and the second defendant significantly differed from what had, or had not, been put on their behalf in cross-examination, so as to indicate to me that the evidence of that defendant, on that aspect, had been the result of further, and recent, invention by that witness.

104 Before making findings of fact on particular issues, I shall first say something more about each of the individual main witnesses who gave evidence.

105 Stella Loulatzis is now 69 years of age. She has had a difficult life. After her husband died, she worked very hard to sustain her family. It has not been disputed that she was a good mother who did her best to provide for her family. Over the years she has had to cope with the difficulties of her relationship with Con, with a particularly troubled relationship with Christina, with the proceedings brought against her by Christina, and with the failure of her second marriage to Con Lollis. In evidence she gave the appearance of a resilient individual with strong, if inflexible, views on the issues which I must determine. As I have already stated, in my view the plaintiff, as a witness, has been significantly affected by the bitterness of her dispute with her eldest son. In particular, she was quite open about her powerful dislike of the second defendant, Irene Petruccelli. She could hardly acknowledge Irene Petruccelli's relationship with her son at all. In my view she understated the true nature of the relationship between Con and Irene in the early 1990s. She also, in my opinion, somewhat exaggerated her level of ignorance of the work which was carried out by Con in the Green Street property during the 1990s and early 2000s. On occasions, she was steadfast in denying knowledge of a fact which might adversely affect her case. Thus, she maintained that neither the solicitor, Mr Kenna, nor Con, ever discussed with her the contents of the affidavits sworn by Mrs Easton, and indeed she maintained that she had never seen that affidavit herself. In light of the issues which were fundamental to the proceedings brought by Christina, I find that evidence of Mrs Loulatzis to be incredible. It was contradicted, in that respect, by the evidence of Tracy Loulatzis, who said, in cross-examination, that she was told by Stella of the existence and contents of that affidavit. Similarly, Stella downplayed the relationship between Con and Irene in the early 1990s to an exaggerated extent. The tenor of the plaintiff's evidence was that the relationship between the two was nothing more than that of friends, and that Irene in fact played an insignificant role in Con's life at that time. For reasons which I shall set out later, I do not accept that that is an accurate description of the state of the relationship between the defendants at that time.

106 The witness Con Lollis presented as an interesting individual. He has clearly been successful in his business affairs, notwithstanding his setback in 1995 when sentenced to a term of imprisonment. The impression which I had of Mr Lollis is that, notwithstanding his divorce from the plaintiff, he nonetheless entertains warm feelings towards her, and is loyal to her. There was no evidence of any ill feeling by him towards the plaintiff at all. Rather, he blamed the failure of his marriage to the plaintiff on Christina and Con. There was an artificial, and exaggerated, flavour to some of his evidence. For example, his explanation as to why he voluntarily, and happily, gave half of his assets to the plaintiff, in the early 1990s, seemed somewhat exaggerated and overplayed, notwithstanding that he is clearly a very generous and giving individual. Similarly, when asked to describe the condition of the Green Street property before it was renovated, he did so in terms which clearly overstated its condition. On two occasions he described the bathroom as a "beautiful bathroom" before it was renovated.

107 Tony Loulatzis was a witness who gave his evidence in careful, if slightly hesitating, terms. However, his demeanour did not significantly alter between evidence in chief and cross-examination, and I gained the impression that his manner of giving evidence reflected his style of everyday conversation. I consider that Tony was a witness who was trying to do his best to be objective and honest. Mr Kendall cross-examined Tony vigorously in an endeavour to demonstrate that his evidence had been driven by the prospect of material gain. In particular, it was put to him that he knew that if his mother won the case, he, Tony, would stand again, particularly under the terms of his mother's will. I accept, without hesitation, Tony's repudiation of that suggestion. I was left with the strong impression by Tony that he was not motivated by any desire for personal gain. Rather, I consider Tony to be a very loyal and supportive son, who has seen it as his role to stand by the side of his mother in this difficult litigation. Notwithstanding that role, I did not detect any conscious effort by Tony Loulatzis to exaggerate or to reinvent what had occurred.

108 Of course, I do take into account the circumstance that Tony could not but be affected by his feelings of loyalty towards his mother and, to a lesser extent, by his feelings of dislike towards his older brother Con. There were some aspects of Tony's evidence which I do not accept in its entirety. However, in those respects I do not consider that Tony Loulatzis was endeavouring consciously to mislead me but, rather, was affected by the factors to which I have just referred.

109 As I have already stated, I consider that Tony's wife Tracy was singularly the most objective and dispassionate of all the witnesses who gave evidence before me. I consider that she gave her evidence in a careful and considered way, and there was no suggestion of any invention by her, or exaggeration by her. She is clearly fond of, and loyal to, her mother in law. However, she resisted the temptation to give any evidence beyond recounting of the facts which were known to her. That is not to say that all of the evidence of Tracy was correct. Like all the witnesses, she was giving evidence about matters, some of which are now long passed. Further, I do take into account the fact that Tracy could not be immune from the strong undercurrent of feelings which has affected all the witnesses in this case. She was frank in accepting, in cross-examination, that she does support Stella in this case, that she does not like her brother in law Con, and that it is her view that the house belongs to Stella. Nonetheless, I regard Tracy as a truthful, candid and reliable witness.

110 In assessing the evidence of Peter Takakis, I take into account the fact that he is clearly very loyal to, and concerned about, his aunt, the plaintiff. Peter Takakis's mother died when he was young, and he spent a lot of time with the Loulatzis family, and has been close to the plaintiff. In addition, until approximately two or three years ago, he was very close to Con. Indeed, Con was his best man when he married for a second time in 2001. Since then he has had a falling out in his relationship with Con. While I do not consider that Peter Takakis deliberately or consciously fabricated any of his evidence, I am conscious that some of his evidence may have been affected by his attachment to the plaintiff and, to a lesser extent, by his falling out with the first defendant.

111 In assessing the credibility and reliability of Con Loulatzis, I have taken into account the fact that he has been, and is, subject to a number of longstanding and serious health problems, which may have impacted on the way in which he presented himself in Court. It is clear that some of the problems which he has with his health can affect his emotional state. Con tended to react, on a number of occasions, in an emotionally inappropriate and unusual way in the witness box. He smiled and smirked inappropriately, and on other occasions overreacted, in a particularly exaggerated way, to questions put to him in cross-examination. I suspect that some of his responses were not only the consequence of his health problems, but were also the product of his quick temper and his underlying emotional disposition.

112 As I have stated, I have taken into account Con Loulatzis's constitutional difficulties in assessing his demeanour in the manner in which he gave his evidence. Nonetheless, I found his evidence to be unreliable and unsatisfactory. On important issues his evidence was contrived and exaggerated. He contradicted himself, and often gave self-serving responses which defied credibility. For example, he was clearly keen to lay an appropriate foundation for the promise which he alleged Stella made to him in 1990, that if he married Irene and settled down, he would own the house. For that purpose he exaggerated the nature of and extent of his relationship with Irene at that time, and in the period which immediately followed. If anything is clear from the evidence, it is, I consider, beyond dispute that there was no relationship, other than that of friendship, between Con and Irene, before they rendezvoused overseas in 1988 or 1989. Yet at one stage, in his cross-examination, Con sought to maintain that Stella and he had had discussions about he marrying Irene before he went to Europe. Equally, I consider that his evidence concerning the nature of the relationship between himself and Irene, and any discussion as to marriage between the couple, to be exaggerated, when Con gave evidence relating to their relationship in the early 1990s. The tenor of Con's evidence was that there was discussion, not only between himself and Irene, but between their respective parents, and between themselves and their parents, as to upcoming nuptials. The only question which had been put to Stella in cross-examination (and which was denied by Stella) was that she had expressed the desire that if any marriage had taken place, the first ceremony should be in the Greek Orthodox church, followed by a second ceremony in a Catholic church. Con's evidence concerning the nature of his relationship with Irene was not, I consider, reflected to the same extent even by the evidence of Irene, nor by the evidence of any other of the witnesses.

113 Another example of exaggeration by Con was his evidence as to the occasion on which he claims that his mother brought a duplicate certificate of title to the Green Street property, after he had requested a copy of that title so that he could progress his building plans. Con not only gave evidence that his mother acceded to that request, but then gave a detailed and graphic description of the duplicate certificate of title produced by his mother on the day. That evidence was clearly given in order to persuade me that the document produced by Stella was indeed the duplicate certificate of title issued by the Titles Office to Stella as the registered proprietor. The evidence sounded, as it was, contrived and unrealistic. In cross-examination on that topic, Con even resorted to giving a description of the colour and shape of the handbag from which his mother produced the certificate of title. I found Con's evidence at the time to be contrived and highly exaggerated. The two matters to which I have just referred are but examples of a number of instances of exaggeration, and of evidence given by Con in a transparent effort to bolster his claim.

114 In addition, there were numerous occasions when the evidence given by Con Loulatzis differed markedly from matters which have been put on his behalf to the plaintiff's witnesses in cross-examination. Often the additional matters stated by Con in his evidence added a layer of embellishment to what had been put on his behalf in cross-examination of the plaintiff's witnesses. For example, Con stated that Stella, in the early 1990s, had discussions with Irene's parents concerning a proposed marriage between Irene and Con. That had not been the subject of any questions asked of Stella in cross-examination. Similarly, when Con gave evidence about the telephone call he made to Stella after he found the notice to quit in his letter box in 1995, he said that his mother, when asked about the document, said "I don't know what you're talking about". However, when Stella was cross-examined, it was not put to her that she professed ignorance about the document when Con raised it with her on the telephone. Again, when Con gave evidence about a contretemps which he had with valuers who wished to inspect the Green Street premises for the purpose of the matrimonial proceedings between Stella and Lollis, he said that Stella, on that occasion, had reassured him by guaranteeing that his interest in the Green Street property would be taken into account in the matrimonial settlement. That matter was not put to Stella in cross-examination. On another occasion, when giving evidence about the impeding divorce proceeding between Stella and Lollis, Con volunteered that, on one occasion while they were in the driveway of the Green Street property, Stella looked at him and said "I'm going to fix that sister of yours first, I'm going to fix Con Lollis, and then I'm coming after you". It had not been put to Stella in cross-examination that she had made such a threat. When Con Loulatzis gave evidence as to the making of that threat, it seemed to me that it was a contrived effort by him to counter the evidence of his mother that, on the conclusion of the mediation between Christina and herself, Con had made a similar threat to her.

115 For those reasons I found Con Lollis to be, overall, an unsatisfactory and unreliable witness. However, that is not to say that his evidence should be entirely rejected. As I have already remarked, this is a case in which the main protagonists were very much witnesses in their own cause. I accept that, notwithstanding that some of them were unreliable witnesses, nonetheless, some of their evidence, even on important matters, may well have been truthful.

116 I have also come to the conclusion that Irene Petruccelli was not a satisfactory or reliable witness. Her evidence appeared to be highly rehearsed and practised. She gave the appearance of having developed for herself a script, to which she sought to adhere, and which she considered was best suited to support the case of the first defendant on the counterclaim. The tenor of her evidence was that her relationship with Stella was, and indeed always has been, by and large amicable, subject to two isolated incidents, the blame for which she laid solely at the foot of either Stella, or Stella and Christina. The evidence of Irene as to the nature of her relationship with Stella is in stark contradiction to the evidence of all the other witnesses, including Con. In the course of his cross-examination Con gave evidence, which I accept, that between 1995 and 2005 the relationship between Irene and Stella was not good, and that it was a relationship in which he was forced to make decisions between the two women. He said that there were occasions where he felt that the behaviour of either of them had gone beyond "the pale". Irene denied that, after Stella returned from overseas in 1995, she was angry to find Irene living at the Green Street property. That denial was in stark contrast to what had been specifically put in cross-examination to, and agreed by, Stella, Tony Loulatzis, Peter Takakis and Tracy Loulatzis.

117 On a number of instances I found that Irene Petruccelli's evidence was exaggerated. For example, she purported to give evidence as to the colour of the dress worn by Stella when she visited Green Street in 2001, evidently to bring a copy of the title for Con. In addition, Irene's evidence was highly rehearsed. In the course of the evidence a part of the transcript before the Magistrates' Court proceedings, in the intervention proceeding, had been tendered on behalf of the plaintiff as Exhibit AA. Further extracts from the same transcript had been tendered as Exhibit 14 on behalf of the defence. At one stage, when cross-examining Irene, Ms Sparke put before her Exhibit 14, and without referring to that document, Irene immediately mentioned page 11 of that transcript. In fact page 11 was not to be found in Exhibit 14, but rather in Exhibit AA. The significance of page 11 is that it contained an extract from Irene's evidence at the Magistrates' Court proceeding, and to which I shall later refer, in which Irene acknowledged that, over the past 10 years, Stella had made demands for rent on Con and herself. Irene gave the appearance of having programmed herself to respond to the transcript, even before the relevant part of it was put to her in cross-examination. That instance, in my view, characterised a number of her other responses in evidence. Again, as with the other witnesses, I do not entirely discount all of Irene Petruccelli's evidence. However, because of the conclusions which I have reached about the nature of her as a witness, I do not find her evidence to be particularly helpful in determining disputed issues of fact, where the resolution of those issues depends upon one witness's oath against another.

118 With those observations about the witnesses in mind, it is now necessary to make findings in relation to the issues raised by the first defendant's counterclaim. The pleadings underwent a series of amendments throughout the trial. However, the fundamental claims pleaded in the counterclaim remained essentially the same. Paragraph 17 recites the conversation, which the first defendant alleged occurred with Stella in 1990, in which it is alleged that Stella told him that if he married Irene and had children with her she would give Con the house. Paragraphs 18 to 23, on their face, plead that that conversation amounted to a binding agreement, that the plaintiff has breached that agreement, and that the first defendant has suffered damage as a result. However, at the outset of the trial, and again in final address, Mr Kendall made it clear that his client was not pursuing a claim based in contract. Rather, paragraphs 17 to 24 were stated by Mr Kendall, and throughout the trial understood, to contain a claim based on "promissory" estoppel, arising primarily from the oral statement made by Stella to Con in 1990 and which, it is alleged, she reiterated to him when he telephoned her in 1995 after Con received a copy of the notice to quit in the letter box. Paragraphs 25 to 27 plead an alternative claim, based on what has been described as estoppel by acquiescence or encouragement. The gist of that plea is that the plaintiff permitted or encouraged the first defendant to remain in possession of the Green Street property, to meet all outgoings in connection with it, and to carry out extensive repairs, improvements and renovations to the property, in the expectation, encouraged by her, that he would enjoy the sole beneficial ownership of the property. It is alleged that, on the faith of that expectation, the first defendant has remained in possession of the property, has met all the outgoings in respect of it, has carried out extensive repairs and renovations, and has refrained from purchasing a property for himself of a standard similar to the premises at 25 Green Street. Accordingly, it is pleaded that the plaintiff is estopped from denying that the first defendant is entitled to enjoy the sole beneficial ownership of the property.

119 For the purpose of completeness I note that, at the outset of the trial, Mr Kendall acknowledged that the first defendant did not plead, nor claim, an entitlement to a constructive trust of the type discussed in cases such as Muschinski v Dodds[2] and Baumgartner v Baumgartner.[3]

(i) First claim in counterclaim: promissory estoppel

120 I turn, then, to the first basis of the claim advanced in the counterclaim, namely, that in 1990, Stella stated, and promised, to Con that if he married Irene, settled down and had children, and renovated the house, the house would be his. It is alleged on behalf of the first defendant that, in 1995, after Con received the notice to quit, he telephoned his mother, and confirmed with her the "deal" which he alleged they had. For the reasons which I shall set out below, I am not satisfied on the balance of probabilities that, in or about 1990, Stella made to Con the statement or promise alleged, or any statement or promise to like effect. Nor am I satisfied that, when Stella and Con spoke about the 1995 notice, Con raised with her the "deal" which he alleges he had with her. In both respects, I am satisfied to the contrary. That is, I am satisfied on the balance of probabilities that in or about 1990 Stella did not state or promise to Con that he could have the house at Green Street if he married Irene, raised a family and fixed the house. I am satisfied on the balance of probabilities that no such conversation occurred, and I am further satisfied that there was no reference to any such conversation when Con and Stella spoke about the notice to quit which Con received in 1995. My conclusions are based both on the demeanour of Con and Irene, and the manner in which they gave their evidence as to this aspect of the case, and, more importantly, on my assessment of the probabilities as to whether any such conversation occurred as that alleged by the first defendant.

121 In my view, it is most improbable that in 1990 Stella would have been minded to give her house to one of her four children. Firstly, she had only just moved out of the house herself. The evidence establishes that the relationship between Stella and her second husband, Lollis, had been unstable throughout the 1980s, and there had been periods of separation between them. According to Con, their relationship improved when Stella moved in permanently with Lollis in Rosebud. However, later in cross-examination, Con stated that throughout the 1990s, and until the end of their marriage, the relationship between Stella and Lollis was troubled. In 1990, Stella had few assets other than her interest in Green Street. She did hold a share in La Trobe Private Nursing Home Pty Ltd, but she had no legal interest in any of the real estate owned by Lollis. For that reason alone, it would have been unlikely that she would have been moved, in 1990, to give away her own home. In addition, it is clear on the evidence that she had a strong sentimental attachment to the house at Green Street. Even after she moved in with Lollis to Rosebud on a full time basis, she visited Green Street very regularly and treated the house as if it was her second home during the day time, while Lollis was working in the nursing home.

122 Moreover, it is unlikely that, in 1990, Stella would have favoured Con above the interests of her other three children to such an extent that she would have given the house at Green Street to him alone. At that time Stella was on good terms with each of her other three children. She had no reason to prefer Con. Even if she was keen to provide an inducement that her eldest son get married, nonetheless Christina, who was the second child, was still unmarried, and, it would seem, somewhat itinerant. The youngest son Nicholas, who was in his early 20s, had only recently made the move to live in the United States on a permanent basis in 1989. In the period leading up to that move he had stayed, at one stage, at Green Street for a period of about six months. In those circumstances it is, as I say, unlikely that Stella would have preferred Con only of her four children so much that she was prepared to give the house to him alone.

123 Furthermore, the alleged promise in 1990 is improbable in view of the apparent nature of the relationship between Con and Irene at that stage. Certainly, it was not obvious that they were a committed couple at that time. Their romance had commenced while they were overseas in Europe, and had resumed in the later part of 1989 on Irene's return to Australia. They were not living together in 1990. The evidence is that Stella was cordial towards Irene, but certainly there is no evidence that she was particularly enthusiastic about her son's relationship with Irene. Indeed, Con stated in his evidence that his mother tended to become antagonistic to any girl to whom Con had become close. If that is correct, and if at that stage Stella was on cordial terms with Irene, it is unlikely that Stella would have viewed Irene as a likely marriage partner for her eldest son. There was evidence, both from Stella and from Tony (relating to 1993) that, on occasions, Con was liable to talk in disparaging terms about Irene, in her absence. That evidence indicates that in 1990, while Con and Irene were romantically attached, their relationship was not such, at that stage, as to lead to the conclusion, particularly in the eyes of Stella, that they were anything like a committed couple.

124 The evidence of Con, and of Irene, relating to the making of the promise by Stella, is also improbable in light of what seems to have followed. According to Con, the discussion which he had with his mother was a "heart quickening" moment. When he related it to Irene, she viewed the discussion in similar terms. Yet Irene's evidence was that she never discussed with Stella the promise made to Con in 1990 at any stage at all. For example, she did not, in the ensuing year, see fit to thank her prospective mother in law for her generosity in giving the house to Con. Con himself stated that he never discussed the conversation with his mother again until, according to his evidence, it was discussed in a telephone call in 1995 after he received the notice to quit. If the promise made by Stella was, as the defendants maintain, of such moment, it is incongruous that they did not have further discussions about that subject with Stella in the ensuing years. In particular, as pointed out by Ms Sparke, the promise alleged by Con was stated in vague and uncertain terms. If that promise was to be the foundation of the future conduct by the defendants, one would expect that they might, in informal terms, have raised with her what was comprehended within the requirements that they marry, have children, and renovate the house.

125 In addition, it is in my view significant that, notwithstanding the terms of the promise alleged by Con, he and Irene did not get formally married in the ensuing years. In his evidence, Con stated that it was part of the "promise" that he get married to Irene. Yet the couple did not commence to live together as husband and wife until 1995. Nor did they get married. If the promise was such a fundamental event in their lives, one would expect that they would have either got married, or clarified with Stella whether she did require them to undergo formal rites of marriage. In his evidence Con referred to problems which, he claimed, Stella raised about the denomination of the church in which the first marriage ceremony should occur. That evidence was denied by Stella. I accept Stella's denial to that effect. However, and in any event, if the question of the denomination of the church, in which the marriage was to take place was such an issue, it does not seem to have been an impediment at all to Con and Irene getting married. In cross-examination, Con accepted that neither he, Irene, or Irene's parents, were troubled by whether the marriage occurred in a Greek Orthodox church or a Catholic church. Indeed, Irene's sister had already married in a Russian Orthodox church. In any event, the couple could have become married by way of a civil ceremony. Tony and Tracy had been married by a civil celebrant, and Stella had happily attended that occasion. In the end Con conceded, in cross-examination, that the question of religion was not relevant to the issue as to whether they got married. In my view, the fact that Con and Irene did not commence living together as man and wife until 1995, and the fact that they did not get married at all, particularly in the years which immediately followed 1990, adds to the improbability that Stella did make to Con the promise which he alleges.

126 Furthermore, Con accepts that he never told any of his siblings about the promise, which he alleges Stella made to him. His failure to do so is quite significant. It will be recalled that in early 1991, when Christina returned from overseas, she became hostile towards Con, when she observed the renovations which Con had commenced in the house, and accused him of taking over the house. I accept the evidence of Tony and Tracy that, shortly thereafter, Con visited them at their home to apologise for the argument which had occurred between himself and his sister. Indeed, Con accepts that he made such a visit, but could not recall what was said. I accept the evidence of Tony and Tracy that, when Con attended their house, he told them that they should not believe what Christina was saying, and that the works which he was carrying out to the house at Green Street were in honour of his father's memory. If, as Con alleges, the house had been promised to him, subject (inter alia) to renovation works at the house being carried out by him, there is no reason why Con would not have told Tony and Tracy, on that occasion, that that was why he had been renovating the house. Indeed, given the nature of the challenge made to him by Christina, it would be expected that Con would have been at pains to make it clear to Tony and Tracy that, as promised by his mother, he was to be entitled to the house if he carried out renovations to it.

127 I also consider that there is force in the submission made by Ms Sparke that the improbability of the promise is magnified by the failure of Con to discuss it on occasions when it might be expected that that topic might have been raised by him. As I have stated, he did not raise it, either with Stella or with his siblings, after Christina challenged his right to renovate the house in 1991. Further, when, as he alleges, Stella raised problems as to the denomination of the venue in which the marriage was to occur, it would be expected that Con, and indeed Irene, would have raised with Stella how it was they were to comply with the terms of her promise, if she was to erect such a difficulty as that. In 1995, when Stella returned from overseas, it is clear that her relationship with Irene was poor. Irene herself gave evidence as to an incident in which, for no apparent reason, Stella turned on her in a hostile manner. After that incident Irene contacted Lollis for his advice. In that light, if the 1990 promise had been made to Con, it would be expected that he and Irene would have been at pains to clarify with Stella the nature and continuation of that promise, given her then hostility to Irene. Further, it is in my view significant that Con never sought to clarify or confirm the promise, or his compliance with the terms of it, when he and Irene commenced to live together, when they had children, and when he had substantially renovated the house.

128 Finally, it is, to some extent at least, relevant to examine the manner in which, in a series of defences and counterclaims, the 1990 "promise" has been either pleaded, or omitted. The proceedings were served on Con in late October 2003. The first defence was served on 17 December 2003. In that defence, Con claimed that he had an equitable interest as a consequence of his renovation works and "continuous stewardship" of the property. The defence did not make any reference to the 1990 promise. I accept that little flows from that point, since the defence does bear all the hallmarks of a "holding" defence. However, on 23 March 2004, a further amended defence was filed in substantially the same form. It also did not refer to the 1990 promise. That allegation was first made in the third defence delivered on 15 October 2004. That defence was the first pleading delivered on behalf of the defendants after counsel had been briefed in this matter. That defence, and each ensuing defence and counterclaim, allege that the plaintiff in 1990 told the first defendant that the house would be his if he settled down, got married and had children. None of those pleadings have contained an allegation that the 1990 promise also included a requirement that Con renovate the house, as alleged by Con in his evidence. The inconsistency between the defence delivered on behalf of Con, and his evidence, is not, on its own, a good reason for disbelieving his evidence. However, it adds some, albeit limited, weight to the other factors to which I have referred above.

129 Thus, in my view, it is most improbable that Stella made the promise alleged by Con. The evidence given by Con and Irene to that effect was unsatisfactory. I reject that evidence. On this aspect of the case, I am comfortably satisfied on the balance of probabilities that Stella did not make any such promise or statement to Con in 1990 or on any other date thereabouts.

130 I also am satisfied on the balance of probabilities that, when Con spoke to Stella after he found the notice to quit in his letter box in 1995, he did not say to her that they had a "deal". As I shall set out below, I am satisfied that Con received that document in the manner alleged by him, namely, by finding an unsigned and undated notice in his letter box. The evidence by both Stella and Con as to the discussion which ensued is unsatisfactory. The common feature of the evidence of both of them is that Con reacted angrily to the receipt by him of that notice. Such a reaction would be in keeping with the relationship which he had with Stella, and with the evidence as to the nature of his fiery temperament. However, I do not accept that, in any conversation which occurred between Stella and himself concerning that notice, he made any reference to a "deal" or promise of the type alleged by him in these proceedings.

131 For those reasons, I am of the view that the first basis of the counterclaim, asserted by the first defendant must fail. There was, in my view, no express promise or statement made by Stella to Con that if he married, had children and renovated the house at Green Street, he would be entitled to the beneficial ownership of it.

(ii) Second claim in counterclaim: estoppel by encouragement or acquiescence

132 The second basis of estoppel relied upon by the first defendant is that, between 1990 and 2003, the plaintiff acquiesced in, and/or encouraged, the formulation by the first defendant of an assumption or expectation that he was, or would be, the beneficial owner of the house at 25 Green Street, Camberwell, and that the first defendant had acted on the basis of, and in reliance on, that assumption or expectation, such that he would suffer detriment if the plaintiff were now to depart from it, by denying the first defendant's entitlement to the beneficial ownership of that property.

133 In addressing that basis of his client's claim, Mr Kendall referred to the recent statement of principle by Brereton J in Vukic v Luca Grbin & Ors: Estate of Zvonko Grbin,[4] in which his Honour summarised the relevant principles as follows:

"Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption ... It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation ... Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated ... The unconscionability which attracts intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion."

134 That statement of principle was based on, and contained references to, the well known authorities of Grundt v Great Boulder Pty Ltd Gold Mines Ltd;[5] Thompson v Palmer;[6] Waltons Stores (Interstate) Ltd v Maher;[7] Crabb v Arun District Council.[8] In his final address, Mr Kendall's fundamental submission was that, apart from the express promises which the first defendant alleged were made to him in 1990, and reiterated in 1995 (which I have rejected), the conduct of the plaintiff in the ensuing years was such as to convey to the first defendant an implied representation or acknowledgement that he was entitled to proceed on the assumption or expectation that the property at Green Street was or would be his. Particular emphasis was placed by Mr Kendall on the circumstance that, notwithstanding the receipt by the first defendant of the notice to quit in late 1995, the plaintiff took no action to enforce her rights in respect of that document, or to otherwise evict Con from the premises. In the meantime, it was submitted, Stella stood by, substantially if not wholly in silence, while Con expended significant sums of money, and effort, in effecting substantial improvements to the property. Mr Kendall submitted that the plaintiff could only have perceived that Con was labouring under the assumption that the house was or would be his, and thus she owed to him a duty to disabuse him of that assumption, before he acted in a manner which was such that he would suffer detriment should the assumption later be proven incorrect. In that context, Mr Kendall relied on the well known statements of principle by the House of Lords in Ramsden v Dyson & Anor,[9] and in particular, the statement by the Lord Chancellor, Lord Cranworth, as follows:

"If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented."[10]

135 On this aspect of the claim Mr Kendall particularly relied on four facts which he submitted were established by the evidence:

(a) Between 1990 and 2003, Con effected significant renovations to the house of which Stella must have been aware or ought to have been aware.

(b) On one occasion Stella assisted Con in renovating the kitchen floor.

(c) In 2001, Stella gave Con a copy of the title to the Green Street property to enable him to obtain a building permit.

(d) On no occasion did Stella seek to enforce her rights to exclude Con from the premises, or take any other step to properly disabuse Con of the assumption that he was entitled to treat the property at 25 Green Street as his own.

136 The most useful and convenient method of determining whether the first defendant has made out the second basis of his claim in the counterclaim is to review the evidence, generally, in a chronological manner.

137 In my view, it is clear on the evidence that, in the early 1990s, Con did not formulate the assumption that he was or would be the beneficial owner of the property at Green Street, nor did he so conduct himself in such a way as to have alerted Stella that he was labouring under a new such assumption. In 1991, when Christina challenged him for carrying out renovations to the property, Con did not then assert his right to do so as a beneficial owner of the property. Rather, his stance was that he was carrying out those repairs for his father's memory. In making that statement, particularly to Tony and Tracy, Con was expressing his own understanding, at that time, that Green Street was the family home of which he was then taking care.

138 In the ensuing four years before 1995, Con remained residing at the Green Street property, without interruption. During that period Irene stayed with him off and on overnight. Tracy Loulatzis's evidence, which I accept, is that by 1993 Con and Irene were, to all outward appearances a "couple". However, Irene had not moved into the house at that time, but, rather, was still living with her parents in Fawkner. At the same time, Stella was visiting the house during the day and carrying out a number of household tasks, including her son's washing, cleaning the premises, and cooking food for herself, her husband and Con. She treated herself as being free to come and go from the house as she pleased, and Con expressed no demur to that. Although Stella, on occasions, in her evidence stated that she had not liked Irene since 1991, the evidence is, in my view, persuasive that until 1995, Stella remained on cordial terms with Irene. Certainly, and apart from an incident involving Christina, Stella and Irene (as to which Stella and Irene gave different accounts), there is little evidence of any untoward friction between Stella and Irene before late 1995.

139 In the meantime, I accept the evidence of Con that he did, during that period, embark on renovations of the house. I accept that he had already played an important role in the rebuilding of the front fence. He also undertook significant work in building the area under the front of the house known as the "cellar", which he enlarged, and converted into a work room for himself and his business. Having completed that task he then commenced to carry out some renovation works on the interior of the house. In particular I accept that he commenced to renovate the front hallway, and some of the front rooms, removing, stripping and repainting the skirting boards, cornices and architraves. It also appears that during that period he re-plastered the walls of the hallway and some of the front rooms.

140 As I have stated, during that period Stella was visiting the premises on a frequent basis. I accept her evidence that, during that period, she disagreed with a number of the works being carried out by Con, and expressed that disagreement to him. Con's evidence is that she only expressed mild disapproval of his replacement of the front windows in the master bedroom and lounge room, and that she simply queried whether it had been necessary to carry out that work. On the other hand, the evidence of Stella, supported by both Con Lollis and Tracy Loulatzis, is that she was particularly upset about that aspect of the works undertaken by Con. The dispute about the replacement of those two windows is, in itself, of some significance. First, it was, in my view, symptomatic of an underlying difference between Stella and Con as to the style which the house should have, and as to the nature and extent of changes which should be carried out by Con. Stella did not want the work carried out by Con to make any change to the previous character of the house. On the other hand, Con wished to, and indeed did, restore the period features of the house which had been altered by the works undertaken by his father, and, subsequently, by Stella. Stella's opposition to that course was based partly on taste, but, it would seem, at least substantially on feelings of sentiment. The evidence of Stella, supported by Con Lollis, is that she wished the house to retain the character which it had, as a result of works undertaken by her first husband, and as a result of works which she had completed on his demise. For that reason she later (in the late 1990s) was upset that a tree, planted by her late husband in the back yard, had been removed by Con. She was also upset when Con removed tiles from the kitchen which had been chosen and laid by her late husband. Con and Irene stated that not only was Stella content that that work be done, but indeed she physically assisted in carrying it out. I do not accept that that is so. In my view, the evidence of Stella was cogent, and indeed consistent with other evidence, that she stated she was unhappy that the work had been carried out on the kitchen tiles, because they involved disposing of tiles chosen and laid by her late husband. Indeed, in this respect, Con acknowledged that there was at least a "lament" between his mother and himself when he carried out those works. Furthermore, I note that it had not been put to Stella, in cross-examination, that she had physically assisted in the removal of the old tiles. I reject the evidence of Con and Irene that she did so.

141 Thus, I accept that Con did carry out substantial works in the period leading up to 1995. However, I also accept that, during that time, Stella objected to a number of those works being carried out. I accept that she expressed her concerns to members of her family including Con Lollis, Tony Loulatzis and Tracy Loulatzis. Given her strong and volatile temperament, it is most unlikely that she did not express the same disagreement to Con. I accept that she did so. The evidence satisfies me that she was particularly concerned, first, that the work was being carried out without her permission, and, secondly, that works were being carried out to the house which altered its character and style, particularly from the type of house in which she and her late first husband raised their young family.

142 On the other hand, notwithstanding that Stella was unhappy with, and expressed her disapproval of, some of the work being carried out by Con at the house, I do not accept her evidence that, from 1991, she had made demands of Con that he pay rent or move out. If she had made such demands, they were ignored by Con. In my view, it is not in keeping with her personality that, if such demands had been made and rebuffed, she would not have complained to Tony, Tracy and Con Lollis about that behaviour of Con. On the evidence, it would seem that she only made mention of such a complaint, particularly to Tony and Tracy, after 1995. In the meantime, she continued to pay the rates and bear the significant expenses of the household. That conduct is, in my view, inconsistent with Stella maintaining the position that, during the same period, she made demands of Con that he leave the house or pay rent.

143 Thus, during the period leading up to 1995, the evidence satisfies me that Stella permitted Con to remain in the house without payment of rent, and that Stella bore the rates and most of the other household expenses in respect of the property. I accept that Con paid some of the bills, but that the majority of them, during that period, were paid by Stella. In the same period, Con increasingly acted on the basis that he was entitled to renovate the house, notwithstanding Stella's protests to the contrary. By 1995 he had carried out some renovations in the hallway, the front bedroom, the kitchen and dining room, and had carried out substantial renovations in the lounge room. While those works are a small percentage of the works carried out by Con later, nonetheless they were not inconsequential.

144 The foregoing analysis brings me, then, to 1995. In the latter part of that year Stella and Con Lollis travelled overseas. On her return, I accept that she told Con Lollis, Tony, Tracy and Peter Takakis that she wanted Con to move out of the house or to pay rent. While that evidence, on its own, does not mean that she made such a demand of Con himself, nonetheless it reflects her then state of mind.[11]

145 While Stella and Con Lollis were overseas, Irene had moved into the Green Street premises on a full time basis. In my view, the evidence is clear that, on her return from overseas, Stella was most displeased to find that Irene had moved into the home in her absence. Tony, Tracy and Peter Takakis each gave evidence to that effect. The same proposition was put, in cross-examination, by Mr Kendall, to the plaintiff, Tony Loulatzis, Peter Takakis and Tracy Loulatzis. Although Irene gave evidence to the contrary, I accept that it was this circumstance which in fact substantially ignited the tension between Stella and Irene. In particular, Stella objected to Irene living in the house free of charge, and stated to both Tony and Tracy that Irene and Con should either pay rent or move out of the house.

146 In about October 1995, Stella was so upset with the state of affairs that she consulted a solicitor, Mr Goldsmith, in order to take action to have Con and Irene removed from the premises. I accept that before she consulted Mr Goldsmith, Stella did demand of Con and Irene that they either pay rent or leave the premises. It would be extraordinary if she had consulted the solicitor without making prior demand to that effect. Further, given the nature of her protestations to Tony and Tracy about the failure of Con and Irene to either pay rent or leave the house, it would be unlikely, given her temperament, that she had not also expressed the same views to Con and Irene directly.

147 In that period it is clear that the relationship between Irene and Stella altered for the worse. Each of them gave evidence of an incident in which, they claimed, the other was openly hostile to her. Stella recounted an incident in which she claimed that Irene chased her with a knife. On the other hand, Irene recounted an incident when, she claimed, Stella suddenly turned on her and abused her. When Irene made to leave the premises, Stella pushed her against the front banisters. It is not necessary for me to decide the rights or wrongs of the incidents. Indeed, I informed the parties that I would not do so, unless it were necessary. What is relevant is that it is clear that, by late 1995, the relationship between Irene and Stella had become quite hostile. There was clearly anger and discontent on both sides. Indeed, Mr Lollis gave evidence, which I accept, that from time to time he was consulted, during that period, by Con and Irene, in order to act as an intermediary and adviser in relation to the tension which had developed. I accept that those approaches occurred, notwithstanding Con's denial of them. By then Con was still reasonably close to Lollis, and it is natural that he would have turned to Lollis for counsel and assistance. I also accept that, during those discussions, Lollis himself sought to pacify the situation by encouraging Con to agree to pay rent to his mother.

148 It is in that context that Stella consulted Mr Goldsmith in late 1995. I accept that Mr Goldsmith prepared at least one Notice to Determine Tenancy, a copy of which Con states was placed in his letter box. The plaintiff did not call Mr Goldsmith to give evidence on her behalf, and she was unable to say herself whether she had given or sent a copy of such notice to Con. I accept the evidence of Con that he received the document, in an undated and unsigned form, when he found it in his letter box.

149 As I have already set out, the parties gave competing versions as to what discussion ensued after Con received a copy of the notice. Stella's evidence was that she discussed the notice with Con and Irene on the verandah of the Green Street property, and that Con, albeit testily, stated that he would leave the premises. On the other hand Con gave evidence, which I have summarised, that he telephoned his mother about the notice, and that she disavowed any knowledge of it, and confirmed that he had a "deal" with her.

150 Taking Con's evidence first, I do not accept that, in any conversation he had with his mother about the notice, she disavowed any knowledge of the notice. Con's evidence to that effect was not at all convincing. Further, it was not put to Stella, in cross-examination, that she had told Con that she did not know about the existence of the notice. The conversation was an important part of the evidence, and it is unlikely that counsel would not have put such a part of it to Stella, if it then formed part of his instructions. I do not accept that Stella responded to Con's question about the notice by stating she knew nothing about it. Further, as I have already stated, I reject Con's evidence that in any such conversation which did occur with Stella, he reminded her that they had a "deal", and that she agreed.

151 On any view of the evidence, Con and Stella did have a conversation about the notice after Con received it in the letter box. The evidence of Stella relating to that aspect of the case was not entirely convincing. However, one common component of the account given by both Stella and Con is that Con reacted angrily to the document. It is quite possible, in those circumstances, that he did make the remark that he and Irene would get out of the house. However, I also accept that, if he made any such remark, it was made as a matter of pique, and that Stella would have been well aware that it was nothing more than a testy response to the receipt by Con of that document.

152 At the same time, Stella made a will, dated 2 November 1995, which had been drafted for her by Mr Goldsmith. By that will, she appointed Tony, and, in default, Nicholas, to be her executor. Further, by the will, she gave her property at Green Street to Tony, and her interest in the house which she then co-owned with Mr Lollis in Rosebud to Nicholas. In cl 7 of the will, she stated that she had made no provision for Con because he had made considerable problems for her during her lifetime, in attempting to refuse permission for her to continue living in her home at Burwood, and " ... in making alterations to my said home without my permission and against my wishes and in refusing to leave when requested by me".

153 When cross-examined, Stella maintained that she told Con, on a number of occasions, that she had excluded him as a beneficiary under her will. On the other hand Con, in his evidence, stated that his mother never told him of the existence of the will, or of the dispositions which she had made under it. On this aspect of the case I accept the evidence of Con, and reject that of Stella. Stella's evidence was that on a number of occasions she pointed out to Con that he would get nothing under her will. While it is possible that, in the heat of their many arguments, she made such a threat to Con, I do not accept that she pointed out to him that, under any existing will, he was left without any disposition. The relationship between Con and Stella continued, albeit in a rather turbulent manner, until the final rift in 2002. It was sufficiently strong that she felt confident to turn to Con for assistance when Christina made a claim against her, she accepted Con's assistance, and, more relevantly, Con was prepared to give her significant assistance in relation to that claim. It is doubtful that Con would have conducted himself in that way if he knew that he was to be excluded from any entitlement to Stella's estate on her decease. Secondly, Stella gave evidence that at no time had she told Tony, Tracy or Nicholas of the dispositions which she made under the 1995 will, or, indeed, under a subsequent will which she made in 2002. That evidence was supported by the testimony of Tracy and Tony, which I accept. While it is quite possible that she might have told Con, but not Tony, of the dispositions which she made under her will, I consider that it is most unlikely that she would have acted in that way. Rather, I accept Con's evidence that she did not tell him about the 1995 will, or the contents of it.

154 The critical question, then, is whether, in the ensuing eight years after 1995, Con assumed, or maintained an assumption, that he was entitled to the beneficial ownership of Green Street, and whether, during those years, Stella encouraged or acquiesced in the maintenance by Con of that assumption.

155 Mr Kendall submitted that, on the evidence, Con did assume that he was the beneficial owner of the property during that period. He further submitted that Stella acquiesced or encouraged the formulation and maintenance of that assumption by Con. In particular Mr Kendall relied on three principal matters, namely: the failure of Stella to take any steps to enforce the notice to quit which had been received by Con in late 1995; the acquiescence by Stella in renovations performed by Con on the house during that period; and the act of Stella in giving a copy of the certificate of title to Con in 2001, in order to enable him to obtain a building approval for renovations planned by him at the Green Street house.

156 In response, Ms Sparke submitted that, notwithstanding that Stella did not resort to legal process to enforce her rights in the period after 1995, nonetheless Stella made it clear to Con that she, and not he, was the beneficial owner of the property. Ms Sparke submitted that, during that period, the evidence established that Stella did not stand by and acquiesce in the extensive renovation works undertaken by Con, but, rather, she voiced her disagreement with them. Further, she submitted that I should not accept the evidence of Con and Irene that, in 2001, Stella acceded to Con's request to give to him a copy of the certificate of title to enable the application for the building approval to proceed.

157 There is, of course, a head on collision in the evidence led on behalf of the plaintiff on the one hand, and the evidence adduced on behalf of the defendants, as to whether Stella, after 1995, continued to demand that Con either pay rent for his occupation of the Green Street premises, or that he and Irene leave them. In this context, I am satisfied on the evidence of Tony, Tracy, Peter Takakis and Con Lollis that, during that period, Stella, on a number of occasions, repeatedly complained to them that Con was refusing to comply with her demand that he either pay rent or vacate the premises. As I have stated, that evidence was not adduced for an hearsay purpose, to prove the truth of what the plaintiff said she had told the first defendant. Rather, the evidence was admissible in order to establish the plaintiff's state of mind at the relevant time. I am satisfied that the plaintiff did during that period have a consistent and firm desire that the defendants either pay rent or leave the premises at Green Street. I am further satisfied that she became quite upset and distraught by the failure of Con to comply with her demands that she do so. It was suggested by Mr Kendall, in final address, that Stella told Tony and Tracy that she made those demands of Con, when that was not the truth, in order to placate Tony. However, Mr Kendall was not able to advance any cogent reason why Tony would need to be placated. Although, since 1993, Tony had harboured ill feeling towards Con, there is no suggestion that he was hostile to the fact that Con was living in the house and not paying rent. Indeed no evidence was given by Con to that effect. I accept that the reason why Tony spoke to Con about the matter was because he could perceive that his mother was becoming upset by Con's continual refusal to comply with her requests.

158 I therefore accept that, in the period in question, Stella was genuinely upset and concerned that Con was failing to comply with her requests to pay rent or to move out of the premises. Her comments to Tony, Tracy, Peter Takakis and Con Lollis to that effect were not idle remarks made in casual conversation. Rather, the evidence makes it clear that Stella was becoming emotionally upset over the issue. It was for that reason that Peter Takakis and Tony Loulatzis each spoke to Con about the matter. Given Stella's temperament, it is unlikely that she would have remained silent about the issue when she spoke to and dealt with Con. The fact that she expressed her concerns so often, and in such terms, to other witnesses, supports the probability of her evidence that she did raise the matter with Con on a number of occasions between 1995 and 2003.

159 In this context I do accept that, in respect of some matters, Stella did tend to treat her children on a "need to know" basis. A good instance of such a phenomenon is one I have already mentioned, namely, when she only told Con of the criminal charges brought against Lollis and herself. Mr Kendall submitted that, in the same way, she may well have expressed particular sentiments concerning Con's tenure of the house to Tony, Tracy, Lollis and Takakis, but not communicated those sentiments directly to Con. In my view, such a scenario is most unlikely. The nature and frequency of the complaints voiced by Stella, and the fact that she expressed them to four members of her family, suggest strongly that she was so pent up about the issue that it is unlikely that she would have refrained from raising it when speaking to Con. The simpler, and more plausible, explanation why she told so many people of her discontent with Con's conduct, was that she was becoming particularly frustrated and upset by the failure of Con to comply with her stated wishes to him.

160 Furthermore, the evidence of Tony, which I accept, was that, such was the level of Stella's concern about the issue, that he took it upon himself to speak to Con about it. Con denied that Tony raised the issue with him during the period in question. It is true that, after 1993, the two brothers were substantially estranged, and seldom communicated with each other. Tony acknowledged in his evidence that he did not like Con, and that he did not like talking to him. He said the communication with his older brother was a one way affair, in which he was frequently subjected to a diatribe by Con. For those reasons, I do not consider that Tony raised the issue often with Con. However, I do accept his evidence that, on a few occasions, he did take it upon himself to telephone Con, and tell Con that he should comply with his mother's request to either vacate the premises or pay rent to her. I also accept the evidence of Tony that in response, during those conversations, Con stated that he needed time to move out of the house, and that he needed time to relocate his family and his business. I accept that at no time during those conversations did Con suggest to Tony that he considered that he was entitled to own the house, or to remain in it indefinitely. That evidence clearly militates against the formation by Con of an assumption by him that he was entitled to beneficial ownership of the property.

161 As I have already stated, I have some reservations as to the reliability of the evidence of the witness Peter Takakis. I do not accept the evidence which he gave concerning the conversation which he said occurred between Con and himself while driving from Point Leo. Peter Takakis' evidence about that matter was so confused that it was of no useful weight. However, he also gave evidence, more generally, of discussions which he had with Con concerning the need for Con to resolve the issues between himself and Stella relating to the house. I accept that those conversations occurred. At the time of those conversations Peter Takakis was a cousin and close friend of Con, and was also close to Stella. It is natural that, given his relationship with each of them, he would have raised the issue with them, and sought to encourage Con to resolve it with his mother. I also accept that, during those conversations, Con did tell Takakis that Stella wanted him to leave the premises.

162 As I have already stated, I am well satisfied on the evidence that, in the period after 1995, Stella remained significantly hostile to the presence of Irene in the Green Street property. I am also satisfied that, in large measure, there was antagonism by each of the two women to each other. There was a strong air of reality to the evidence given by Con, in cross-examination, to the effect that during the ten years after 1995, the relationship between Irene and Stella was not good, and that, on a number of occasions during that period, he considered that the conduct of either one or other of them was "beyond the pale". During that period he was forced to make difficult choices between his mother and his partner. He stated that his response to that dilemma was to make a "tactical retreat". In that context, there is no reason why, in the years after 1995, Stella would have resiled from her position that she objected to Irene's presence in the house, and that she wanted Con and Irene to either pay rent for their occupation of the house or to vacate it. Indeed, the ongoing hostility between Stella and Irene adds force to the evidence of Stella that, during that period, she did state such a demand to Con and Irene.

163 That conclusion is reinforced by two matters which were raised in the cross-examination of Con and Irene respectively. In the cross-examination of Con, Ms Sparke put to him, and tendered in evidence, a passage from the transcript of his evidence in the intervention proceedings in the Magistrates' Court in 2005. Stella was unrepresented in those proceedings. In questioning Con, she stated "I ask you to pay me rent from '95 and you refuse and you brought all this family, not only Irene". The Magistrate then assisted by asking Con "What do you say to that question?". To that question, Con responded as follows:

"Well the question of rent has arisen several times and I say, 'hold the phone, what about all the work I've done, what about what we've said we were going to do'."

164 When Ms Sparke put that passage to Con in cross-examination, he claimed that, when giving evidence in the Magistrates' Court, he was only referring to demands made by Stella after the issue of proceedings in this case. However, it is clear from the transcript of the Magistrates' Court proceedings that Stella made it plain that she was alleging that she had asked Con to pay rent from 1995. Con, in his response, did not qualify his response, or limit it, by reference to the period after the issue of proceedings. In my view, the explanation given by Con during cross-examination in this trial was unconvincing. I am persuaded that, in his answers before the Magistrates' Court, he did admit that the issue of rent had arisen "several times" during the period of eight years which preceded the issue of these proceedings.

165 In a like manner, in the Magistrates' Court proceedings, Stella put to Irene the same question, when she stated "The last ten years I ask them for rent, they don't pay me any rent". The Magistrate then stated to Irene: "That is a question. She has asked you for rent the last ten years?". The Magistrate requested that Irene answer that question. In response she said as follows:

"Well she has, the word would be merry-go-round, regarding the issue of rent payment and, for that matter, settlement regarding the house or, for that matter, any work done on the house. So it was never clearly stated, I was never issued with a rental contract, neither Con or myself were ever issued with a rental contract. If there was talk of rent it was always hearsay."

166 When that passage was put to her by Ms Sparke, Irene, similarly, claimed that in her evidence at the Magistrates' Court she was only referring to the period after the issue of proceedings. Again, it is clear that the question which was put to Irene at the Magistrates' Court, both by Stella and by the Magistrate, referred to the period of ten years before 2005. I do not accept Irene's explanation for the answer which she gave to that question. In my view, by her answer she acknowledged that, during that period of time, Stella had made demands of herself and Con to pay rent.

167 In this context, the answers given by both Con and Irene in the Magistrates' Court proceedings bore a close resemblance to some evidence given by Peter Takakis that, on one occasion, he recalled that he was present when Con and Stella had a discussion. During that discussion Con said "I shouldn't pay rent because I've done renovations here and that would cover that part of it". Mr Takakis further stated that Stella disagreed with that proposition. While Mr Takakis did have some reservations concerning his recollection of that conversation, it is, in my view, significant that its content is particularly similar to the answers given by both Irene and Con at the Magistrates' Court, when asked whether Stella had asked them to pay rent during the period of ten years after 1995. I am satisfied that the conversation attested to by Mr Takakis did occur. His recollection was that the conversation occurred before Pantelis was born, but I do take into account that Mr Takakis was not reliable when endeavouring to recall the approximate dates on which conversations and events occurred.

168 Based on the above evidence, I am satisfied, on the balance of probabilities, that during the period from 1995 to 2003, not only was Stella anxious that Con and Irene either move out of the Green Street property or pay rent for their occupation of it, but also that she communicated that matter to Con and Irene on a number of occasions. I am satisfied that, during that period, Con and Irene refused to accede to that request, justifying their refusal on the basis that Con was looking after the property and renovating it. I am also satisfied that, notwithstanding Con's steadfastness in taking that position, Stella continued to press him to either pay rent or vacate the premises.

169 Mr Kendall, on behalf of the defendants, relied on two principal points in order to rebut the evidence that Stella had, between 1995 and 2003, demanded that Con and Irene either vacate the Green Street premises or pay rent for their occupation of them. First, he pointed out that, after service of the notice to quit on Con in 1995, Stella took no steps to remove Con from the premises, or to extract rent from him, until her solicitor wrote a letter to Con on her behalf in August 2003, and issued these proceedings in October 2003. Mr Kendall submitted that if, as she alleges, Stella wished to evict Con and Irene from the premises during the period from 1995 to 2003, she has not advanced any cogent reason for her failure to take such action during that period. Secondly, Mr Kendall pointed to the extensive renovations undertaken by Con to the Green Street premises during the whole of the period 1990 to 2003. He submitted that if, as alleged, Stella had demanded that Con either leave the premises or pay rent, so as to assert her rights as the owner of the house, it is highly improbable that Con would, nonetheless, have undertaken such extensive and costly work. He submitted that the only reasonable explanation for Con undertaking such costly and extensive works, was that he considered that he was, and that his mother regarded him as, the beneficial owner of Green Street.

170 Stella was cross-examined, quite extensively, as to why she had delayed in taking any action to remove Con and Irene from the Green Street house. She responded that she was particularly reluctant to take such legal proceedings against Con. She said that she did not regard it as a nice thing to go to Court to sue her son in order to evict him from her home. She told me that she found it very difficult to go to Court in this case, and that she had not wanted to become involved with lawyers and courts. She said that she had tried to settle things down, and lived in the hope that Con would voluntarily move out. Stella also explained that she was reluctant to force Con's hand, particularly in the early years after 1995, because she perceived that his business was only just getting on its feet. Subsequently, in 1997 Irene was pregnant, and later gave birth to Pantelis. Con told Stella that he would move to Point Leo after he had carried out renovations to that house. Thereafter Stella was also reluctant to take action against Con, because he had chronic problems with his health, and at one stage had told her that he was "sick and dying". Stella stated that she told Con that his brothers had left of their own accord and that he should also leave. She wanted Con and Irene to leave peacefully, rather than to bring about a permanent rupture with her son by taking him to Court.

171 As I have already set out,[12] Tony gave evidence that over the years his mother had expressed reluctance to force Con out of the house because she was concerned as to his health. Stella, in the mid 1990s, also referred to difficulties which Con had with trade unions in his business. She expressed concern to Tony that Con's business was going through an uncertain period. Similarly, as I have set out above,[13] Tracy stated that, when she asked Stella what was happening in respect of Green Street, Stella would respond that there were problems with Con's business, that he was not well, or that Irene was pregnant, and that that was why they had not moved out of the premises.

172 In response to that evidence, Con stated that, by 1995, the business of Icon Plastering was prospering, and he was earning a healthy income from it. He did suffer a setback from the Bourke Street job which he undertook in 1996, and the financial repercussions of that project apparently became evident in 1997. Thereafter Icon recovered well and Con considered that he was running a thriving business. He also gave evidence that, although he had suffered with a number of health problems from the early 1990s, it is only in the most recent years that those health problems have become quite florid. He denied saying to his mother that he and Irene had purchased the Point Leo house in order that they might live there.

173 Irene also gave evidence to like effect. She said that Icon Plastering did suffer financial problems between 1996 and 1997 as a result of the Bourke Street project, which did not go well. The impact of that project became apparent after Pantelis was born in 1997. After that, it took Con some time to re-establish himself with builders and businesses. In cross-examination Irene gave evidence about Con's health. In particular she agreed that in 1999 Con complained of dizziness, and in December of that year he attended an outpatient's clinic at a hospital where he was diagnosed with diabetes type 2. She denied that the house at Point Leo was purchased in order that it became the primary place of residence for Con, her children and herself.

174 Having considered the relevant evidence, I accept the explanation proffered by Stella as to why she delayed until 2003 to take legal proceedings against Con and Irene to have them removed from the Green Street property. It is a particularly extreme step for a mother to issue proceedings against her son, in order to remove him, his partner, and her own young grandchildren, from the home in which they have resided. It is understandable that the plaintiff would have refrained from taking proceedings against her son, in the hope that he might move from the premises of his own accord. As I have already stated, throughout the 1990s, Con and Stella continued to have a close relationship, notwithstanding that it was turbulent and volatile. The nature of that relationship is illustrated by the fact that it was to Con that Stella turned for help and support when she was sued by Christina in early 2002. It was only after the final ruction between Stella and Con in late 2002, shortly after the mediation in Christina's proceedings, and after Con locked her out of the Green Street house in 2003, that Stella could bring herself to issue these proceedings against Con. I accept her explanation that it is distasteful and difficult to bring proceedings against her own son, and that she was hoping that, like his brothers, Con also would move out of the premises of his own accord.

175 I also accept that, when Stella did raise with Con her demand that he either move out or pay rent, he did, from time to time, proffer different reasons for not doing so, such as his health, the need for his business to establish itself, and problems which he was experiencing with his business. While those excuses themselves may not have been particularly sound, it is understandable that Stella, as a mother, might have readily accepted such excuses from her son. Con had suffered from ill health in the early 1990s, and in 1999 was diagnosed with type 2 diabetes. He has a chronic long-standing problem with his blood pressure. His health problems date back to a trip which he and Irene took to Central and Western Australia in 1991, as a result of which Con contracted Ross River fever. It is natural that Stella, as a mother, should sympathise with, and be concerned about, the health of her son, and be concerned not to place it in jeopardy by forcing him to leave the home in which he was residing. Similarly, Con's business was establishing itself in the early part of the 1990s and, on his own account, had only become financially prosperous by about 1995. In 1996 he had problems with the Bourke Street project, as a result of which his business sustained a downturn in the ensuing year. While the business might have recovered more rapidly than Stella appreciated, and while Con's health may not have been as bad as perceived by Stella, nonetheless I accept that Con did use both of those circumstances as excuses for his failure to leave the premises during the 1990s, and that Stella saw them as reasons why she should not force her son's hand in that respect.

176 Mr Kendall submitted that the evidence in this case has demonstrated that Stella is not, and has not been, particularly solicitous about Con's health and welfare. In April 2007, she vigorously opposed an application on behalf of Con to adjourn the trial, notwithstanding the evidence that his health was then somewhat precarious. In my view, the answer lies in the changed dynamics of the relationship between Stella and Con since its rupture in about late 2002. Since then, Stella has "grasped the nettle" and embarked on litigation. Her attitude to Con's health and well-being, while she is in the throes of a bitterly fought litigation with him, is not a useful guide to her attitude hitherto.

177 The second principal matter relied upon by the defendants, in rebuttal of the allegation that Stella had demanded that they either leave the premises or pay rent, arises from the extensive renovations undertaken by Con at the Green Street property from 1990 to 2003. It was put on behalf of the defendants that, throughout that period, Stella was well aware of the nature and extent of the works being undertaken by Con. Apart from expressing some mild concern about the replacement of the two front windows with bay windows, and being a little disappointed that the tiles laid by her late husband in the kitchen had to be removed, the evidence of Con was that Stella did not challenge his right to carry out the works, nor did she express any dissent from the works being carried out. It was put forcefully, on behalf of the defendants, that it is inconceivable that Con would have carried out the amount and type of works, which he undertook, and with the care with which he executed them, if his mother, at the same time, was challenging his right to do so, and, more importantly, was challenging his and Irene's right to remain in the house. Mr Kendall submitted that the carrying out of the works by Con could only be consistent with an understanding held by him, engendered by the conduct of Stella, that he was entitled to be the beneficial owner of the house.

178 It is this aspect of the case which has caused me most concern, and has led me to pause in the conclusions which I have so far stated. In particular, the evidence of the nature, scope and quality of the work undertaken by Con over a substantial period, the expense incurred by him in carrying out that work, and the care with which he did it, raise the question whether Con would have carried the work out if Stella had (as I have found) demanded that he leave the premises or pay rent.

179 It is therefore necessary to give some consideration to the nature and scope of the works which were carried out by Con to the house, the evidence as to the knowledge of Stella of the carrying out of those works, the evidence as to her reaction to them, and the evidence as to her stated attitude to the continued occupation of the house by Con and Irene.

180 Con gave fairly detailed evidence as to the work which he had carried out to the Green Street property. In her evidence, Stella accepted that some of the work was carried out, but did not accept that she had observed other work which Con claimed to have carried out at the house. Although Mr Browning was not able to verify all of the work set out in Annexure A, he was able to observe the large majority of it. I accept the evidence of Con that he did carry out the works described in Annexure A. In his evidence Con stated the approximate dates at which the works were carried out. By and large I accept that evidence, subject to one or two exceptions.

181 I have already dealt with the work which Con carried out at the Green Street property until 1995. Before examining the work which was carried out after that date, I should mention, and dispose of, one related matter which was in issue between the parties. Stella and Con Lollis each gave evidence that, after Stella's return from a trip overseas in late 1991, Stella observed that Con had rendered the brickwork to the front and side of the premises. She was upset that that work had been carried out without her permission, and she expressed her disagreement with it to Con. On the other hand, Con gave evidence that he carried out that work in 1995, and not 1991. He said that he carried it out with Con Lollis's assistance, while Stella was overseas at that time. He further stated that, on Stella's return from overseas, she said that he was pleased with the effect of the rendering, and stated that it looked just like the houses she had seen in America.

182 So far as I can understand, the question of the date at which the rendering works were carried out is, by and large, not particularly relevant. In my view, in all probability, the evidence of Stella is correct, and the works were carried out in 1991. In 1995, when Stella was overseas, Con was busy working in his business of Icon Plastering. His evidence was that he had plenty of work at that time, and indeed, it seems, was preparing for the large Bourke Street project which he had secured. In addition, he described the work, which he had been carrying out in the nursing home while Stella and Lollis were overseas. I doubt that he would have then been able, or inclined, to carry out the rendering to the house, which required at least two weeks' work. Some supporting invoices tendered by the plaintiff suggest that the work was carried out in 1991. Further, I accept the evidence of Stella that she was displeased with the work having been carried out, and that she expressed that displeasure to Con. Her displeasure is consistent with her stated desire that Con not alter the appearance of the house, particularly without her permission.

183 I turn, then, to the works which were carried out after 1995. In his evidence, Con stated that, in the period from 1995 to 2001, he continued to renovate the lounge room, the master bedroom and the kitchen. He also renovated the kitchen and laundry after the birth of his son Pantelis in 1997. Con's evidence was to the effect that each of those works was carried out with the knowledge of his mother, and that she either did not disagree with them, or expressed her approval of them. For example, Con stated that Stella regarded the work which had been carried out in the laundry and toilet area as a vast improvement. Con also stated that he told his mother in advance that he had to remove the large pine tree at the rear of the block in 1998, and that she agreed that it was necessary. He also gave evidence that the timber structure of the rear external staircase had become rotten, so that, in about 1996 to 1997, he removed that staircase, realigned it, and replaced it with a blue jarrah timber staircase. He also gave evidence that he fixed the roof tiles and re-pointed the roof tile ridges in 1998 to 1999. Again, according to Con, his mother observed the work which was either being done or had been done, and did not express any disagreement with it.

184 In 2001 Con engaged an architect, Mr Sharif Abraham, to prepare plans for substantial alterations to the rear portion of the house. Structural computations were prepared, and in October 2001 Mr Abraham, on behalf of Con, instructed a building surveyor to apply for a building permit. I shall return to this aspect of the evidence later. However, Con stated that subsequently, in 2002, he decided not to proceed with the proposed extension. Instead, he undertook further renovation works which, while extensive, were of a less ambitious scope than that contemplated by the designs which had been prepared. In May 2002, he gutted the main bathroom, and significantly renovated it between that date and early 2003. He told me that he spent some $40,000 in that work. He then embarked upon significant and radical renovations of bedroom No. 1 and the upstairs study in 2003. Those rooms had been the subject of the extension undertaken by Stella in the 1980s. The works carried out by Con were quite extensive. The timber which had been used for the frame of the two rooms was not the correct timber, and had to be re-blocked. For that purpose the plaster walls of each of the two rooms had to be removed. Con then undertook significant renovation works, including installing an air conditioner to the upstairs room, installing fibreglass installation, windows, computer lines, new carpet, a burglar alarm, electrical fittings and new cornices, architraves and skirting boards. In addition, he installed built-in furniture such as cupboards. Con stated that, during that work, Stella continued to visit the house and was aware that the work was being carried out.

185 On the other hand, Stella's evidence was that she had only limited knowledge of some of the works that were carried out by Con. However, in cross-examination, she did accept that she knew that some of the works had been carried out, but only after they were completed. She said that Con had removed the large tree at the back without first consulting her and she only learnt about it later. Similarly, she only knew that the external staircase had been replaced after that work was complete. She denied that Con carried out extensive renovations to the toilet and laundry area. In relation to the lounge room, she said that Con only, after some considerable delay, sanded and polished the floor and painted the room. Otherwise she did not accept that he had carried out other works to that area.

186 Stella stated that, at one stage after about 2002, when she was at the premises, she noted that a number of the aluminium windows, which she had herself installed to the premises, had been removed, and were in the yard outside. Con's evidence as to when that work was undertaken was confused. At one stage in his evidence in chief he suggested that that work was carried out substantially in 2002 to 2003. However, at another stage in his evidence, he said that the windows in the house were progressively replaced as he renovated the house from room to room. Thus, he stated that the windows were replaced throughout the whole of the period during which he undertook renovations at the premises.

187 Stella stated that throughout the whole of that period, when she observed work which had been or was being undertaken by Con of the house, she told him that she did not wish that the work be done.

188 In determining the issues raised by that evidence, it is useful to confine my consideration, initially, to the period from 1995 to 2001. During that period, the frequency of Stella's visits to the Green Street house decreased substantially. According to Con, in 1996 Stella only visited the house on about four occasions. He stated that, in the period from 1997 to 2001, she visited approximately once per month. However, Stella refrained from visiting the premises while Irene was pregnant with Pantelis, and for some short period thereafter. As I have already stated, there was a significant level of animosity between Stella and Irene. Stella continued to resent the fact that Con and Irene were remaining at the house and not paying rent, despite her requests that they either leave or pay rent. In the meantime, Stella continued to complain to other family members, and in particular to Tony and to Peter Takakis, as to the work which Con continued to carry out at the premises. I accept the evidence of those two witnesses that Stella's complaints to them continued during that period. While Tracy was only able to recall that Stella specifically complained about the front windows (which had been replaced in about 1994 or 1995), the gist of Tracy's evidence was that Stella was unhappy about the work which was being undertaken in the house in a general sense.

189 There was no reason why Stella's attitude to the renovation works, undertaken by Con, would have changed after 1995. If anything, it would be logical and plausible for her attitude to have hardened, but certainly not to have diminished, in that respect. I therefore accept Stella's evidence that she did express her disapproval of the work which Con continued to undertake at the house, but that Con paid no heed to her disapproval. I accept that Stella did not observe all of the works while they were being undertaken, nor was she consulted about those works before Con commenced to do them. On the other hand, I am satisfied that she observed that more substantial works were being undertaken of the premises than she was prepared to concede in the witness box. I suspect that her reluctance to acknowledge the extent of the renovation works undertaken by Con stemmed from her adversarial approach to the litigation, and from her reluctance to make any concession at all in favour of Con. Nonetheless, I do accept her evidence that she did continue to convey to Con her disapproval of the fact that he was substantially altering the style and nature of the house contrary to her wishes.

190 Those conclusions bring me to an important issue in the case, namely, the circumstances in which Con made an application for a building approval in respect of the proposed renovations in 2001. This aspect of the case was relied on by both parties.

191 I have already summarised the evidence given by Con[14] that, in late February or early March 2001, he showed the concept drawings, prepared by his architect, to Stella at Mt Martha, and that he subsequently showed those drawings to his brother Tony on the Grand Final Day of 2001. As I have already set out, Con's evidence is that after 24 October 2001 he requested the plaintiff to provide him a copy of the certificate of title, so that he might make an application for a building approval in relation to those plans, and, in response, Stella visited the house at Green Street and provided a copy of the title to Con. Irene gave evidence that, in middle to late 2001, Stella visited the house in relation to the plans which Con had prepared, in order to bring the certificate of title. Irene described how Stella went upstairs with Con and remained there for some time. As I have already set out, Con stated that he subsequently received a phone call from Tracy, who said that Stella did not wish the building work to proceed. The contents of that telephone conversation are set out earlier in this judgment.[15]

192 In response, Stella denied that Con ever showed her a copy of the concept plans which were tendered in evidence as Exhibit 8. She stated that, on one occasion, in Christmas 2001 (or possibly 2002) Con visited her at Mt Martha, and brought a sketch with him, which she thought was a plan for Point Leo. Subsequent to that visit, Stella learnt that the plans were not for Point Leo, but for Green Street. Stella stated that she raised that matter with Con, and asked him where he was planning to build the extension, and he showed her. Stella told Con that he was not allowed to do anything at Green Street. She asked him why he was planning to do an extension, because the house was big enough already. In her evidence Stella also stated that, on one occasion, Con asked her for the title and she said "Don't be silly, I don't need an extension and you've got no right to make extensions on my property". She denied that she had given Con a copy of the title.

193 I have also already summarised the evidence of Tony Loulatzis as to the circumstances in which Con showed him a copy of the plans for the proposed extensions on Grand Final Day 2001, and Tony's evidence that subsequently he telephoned Con in order to dissuade him from carrying out the work.[16] I have also referred to the evidence given by Tracy as to the telephone call which she made to Con at the behest of Stella, in order to tell him that Stella did not wish him to proceed with the extension work.[17]

194 Mr Kendall submitted that I should find that Stella did tell Con that she approved of the renovations which she planned in 2001, and that she gave Con a copy of the certificate of title in order to enable those renovations to proceed. He submitted that it was only some time subsequently that Stella resiled from her agreement to the renovations, when she requested Tracy to telephone Con and ask him not to proceed.

195 In particular, Mr Kendall placed great emphasis on the fact that Con had discovered, in his affidavit of documents, a copy of the duplicate certificate of title issued by the Titles Office. Thus, Mr Kendall pointed out, Con had had access to the duplicate certificate of title, of which he had retained a copy. Mr Kendall submitted that Con would only have obtained a copy of that duplicate if Stella had given it to him, as he alleged in his evidence.

196 In her evidence, Stella stated that originally she kept her duplicate certificate of title, and other important documents, in a safety deposit box at the Commonwealth Bank at Burwood. In about 1986 she withdrew those documents, and kept them at home at Green Street. She said that she first kept them in the master bedroom, but later, when Con commenced works in that room, she moved them upstairs to what was then the bedroom upstairs (but which later was converted into a study by Con). Stella stated that her papers remained in that room until 2002, when Con changed the locks to the room, and she then removed the documents and took them with her to Mt Martha. Stella denied that she had acceded to Con's request to give him a copy of the certificate of title, in order to enable him to proceed with his planned building works in 2001.

197 It is therefore important first to determine whether Stella did give to Con a copy, or the original, of the duplicate certificate of title held by her to Green Street. After reviewing the evidence in this matter, I am satisfied that Stella did not give to Con a copy of the duplicate certificate of title when he requested it. On Con's evidence, he specifically requested that that title be provided to him, in order that he could proceed with the building plans which he had shown to Stella at Mt Martha, and with which Stella was happy. In my view that evidence lacks credibility. Even a cursory examination of the plans (Exhibit 8) reveals that they contemplated a very radical change to the premises at Green Street. Indeed, as pointed out by Con, if the plans had been implemented, it would have involved the demolition of the back half of the house, and, in its place, the construction of a substantially larger, and different, rear section to the residence. Given Stella's continued dislike for, and disapproval of, works which involved a substantial change to the character of the house, it is inconceivable that she would have been happy for Con to proceed with those plans, or that she would have provided him a copy of the certificate of title to enable him to do so.

198 In this context, I do not accept the evidence of Con that he visited Stella at Mt Martha in the early months of 2001, in order to show her the concept drawings which Mr Abraham had prepared for Green Street. His reason for making that visit sounded hollow, and he gave that evidence in an unconvincing manner. On the other hand, Stella described an occasion at about Christmas 2001 when Con visited her and showed her what appeared to be some plans for Point Leo on A4 paper. That evidence gained some support from the testimony of Tracy, who described a visit made by Con on his motor bike to Mt Martha at that time, and at which she observed Con to remove such a document from the back part of his bike. It is relevant that Mr Abraham, in cross-examination, agreed that he did prepare sketch plans for proposed renovations at Point Leo. Stella's evidence is that the documents which were shown to her on that day were understood by her to relate to such plans. I accept that evidence. In my view, it is more probable that Con would have shown his mother such plans, which would have been uncontroversial, rather than take to her, at Mt Martha, the concept drawings which involved such a significant change to the layout and design of Green Street.

199 I also reject the evidence of Con that Stella agreed to provide to him a copy of the certificate of title to enable his proposed plans for Green Street to proceed, and that she provided a duplicate of the certificate of title to him. Con's evidence to that effect lacked credibility. As I have already stated, in my view the evidence well satisfies me that at that stage Stella was still vehemently opposed to any radical changes being made to the house at Green Street. Con's evidence as to the occasion on which he says that Stella made available to him the duplicate certificate of title lacked credibility, and was very much overdone. In order to bolster his evidence, he sought to describe the handbag from which he claimed that his mother produced the duplicate certificate of title. He also gave a detailed description of the document which, he said, was given to him by Stella, no doubt in order to prove that it was the original duplicate certificate of title. That evidence sounded false, and was typical of the exaggerated manner in which Con sought to embellish and thus, in his own mind, reinforce, his own evidence. I reject that evidence. Indeed, I am satisfied that the only copy of the title held by Stella is a photocopy of the duplicate, and not the original duplicate. She was spontaneously and genuinely surprised when, in the witness box, it was pointed out to her that the document which she had produced in Court as her title was only a photocopy of it. Similarly I reject the evidence of Irene as to the visit which she claims that Stella made to the house at Green Street for the purpose of producing the certificate of title. Irene's evidence sounded as if it was contrived and well rehearsed. Her evidence that she could recall, and describe, the clothes worn by Stella on that day is highly improbable.

200 Mr Kendall submitted that I should accept the evidence of Con and Irene that Stella gave Con the duplicate certificate of title. He pointed out that, by 30 October 2001, Mr Abraham had forwarded to the building surveyor the completed application for the building approval, accompanied by a copy of the certificate of title. Mr Kendall submitted that the most probable inference available in those circumstances is that the certificate of title provided by Con to Mr Abraham had been given to Con by Stella. As I have already stated, I reject the evidence of Con and Irene to that effect. The evidence of Stella is that the certificate of title, at that time, was among her papers in the upstairs bedroom (which was later to be converted into a study). Con had access to that room. It appears that he had already commenced to use that room either for storage purposes or as a study. It is common ground that he requested Stella to give him a copy of the certificate of title. Con could only have made that request after receiving the facsimile from Mr Abraham on 24 October 2001, requesting a copy of the title for the purposes of the application for a building permit. While there is no positive evidence to the effect that Con did search among Stella's papers to obtain the title, nonetheless Con is not in a position to maintain that he could only have obtained access to a copy of the duplicate certificate of title if Stella had given it to him. In those circumstances, the fact that Con was able to provide to Mr Abraham a copy of the certificate of title on or about 30 October 2001 does not cause me to alter the conclusion, which I have reached on the viva voce evidence, namely, that Stella did not provide to Con a copy of the certificate of title when requested by him to do so.

201 It is common ground that Tracy telephoned Con, in respect of Con's proposed plans to renovate Green Street, and informed him that Stella did not wish him to carry out that work. According to Con, he responded by saying to Tracy "She (Stella) hasn't told you has she?", referring (according to Con) to the agreement which he had struck with his mother in 1990. I have already rejected the evidence of Con that Stella had promised to him that he could have the house if he undertook renovations to it. I also reject his evidence that he made reference, albeit indirect, to any such arrangement or promise when speaking to Tracy. In cross-examination Con also added that, in the course of that conversation, he told Tracy that Stella had given him a copy of the title so that he could proceed with the works. That evidence was volunteered by Con in the course of cross-examination. It had not been put to Tracy in cross-examination. When Con stated it in cross-examination, it had all the hallmarks of a particularly recent invention by him, again, in order to embellish and, in his own mind, strengthen, the point which he sought to make by his evidence. I reject his evidence that he told Tracy that Stella had given him the title. In my view, the conversation occurred in the manner related by Tracy. In other words, at the behest of Stella, she telephoned Con, and told him that Stella did not wish the works to proceed. In response, Con told her to mind her own business and became abusive.

202 I also accept Tracy's evidence that that telephone conversation occurred shortly after Christmas 2001. Tracy had a good recollection of the telephone conversation, and of when it occurred. By contrast, in evidence in chief, Con initially stated that the conversation occurred "months" after the Grand Final of 2001 (which was at the end of September). Later, when he perceived the implications of that evidence, he sought to move the timing of that telephone conversation to 2003. He stated that it was only then that his mother expressed disagreement with the works that he was undertaking to the back half of the house. Once again, Con's evidence, in cross-examination, seemed self-serving, and I accept Tracy's evidence that the relevant telephone conversation occurred at the very end of 2001 or early 2002.

203 Accordingly, I reject Con's evidence that Stella had agreed with the proposed renovation works, which were the subject of plans formulated for Con by Mr Abraham. I also am satisfied that Stella did not give to Con the duplicate certificate of title, or a copy of it, in order to enable those plans to proceed. Rather, I accept that Stella, when learning of the plans, voiced her disagreement with them to Con. When her efforts to dissuade him from proceeding with the work failed, she enlisted the aid of Tracy, who telephoned Con, and made it clear to him that Stella did not wish the works to proceed.

204 Accordingly, I am well satisfied that, when Con embarked on his tranche of works from 2002 and 2003 in the back half of the house, he well understood that his mother did not wish him to do so, and that she objected to those works. Yet he proceeded with those works nonetheless. I accept Stella's evidence that in 2002, Con telephoned her and told her that he was about to commence work on the bathroom, and that by the time that she arrived at the premises, the bathroom had been substantially gutted. That episode is characteristic, in my view, of Con's preparedness to ride roughshod over the stated objections of his mother to the works which were being undertaken. The work carried out in the bathroom was subsequent to the telephone call made by Tracy, in which she had made it clear that Stella did not wish the house to be renovated in such a radical way. Having completed the bathroom Con then embarked on the radical overhaul of the rear two rooms, namely bedroom No. 1 and the study upstairs. He did so in the face of Stella's disagreement with those works, and her opposition to them.

205 As I have stated, the matter which has given me some cause to pause, is the question why Con would have proceeded with such extensive and costly works, knowing that his mother disagreed with them, and in circumstances in which his mother had repeatedly asked him to either leave the premises or pay rent. Mr Kendall submitted that the only logical answer to that conundrum is that Stella had not requested Con to leave the premises or pay rent, that she had not expressed any opposition to the renovation works being undertaken to him, and that she had permitted him to labour under the assumption that he was entitled to treat the house at Green Street as his own.

206 In my view, having observed the characters involved in this case in the witness box, and having heard a substantial amount of detail as to how they are interacted over the years, I consider that the answer to the conundrum posed by Mr Kendall lies elsewhere. I agree with Ms Sparke that, as the years went by, Con did regard himself as being entitled to treat the house as if he were the "lord of the manor". I also agree that he acted in that way, notwithstanding the protestations of his mother to the contrary, in particular comprised in her requests that he either leave the premises or pay rent, and in her objections to the works which he was undertaking. The relationship between Con and (subsequently) Irene, on the one hand, and Stella, on the other hand, was marked by conflict. It is in keeping with the dynamics of that relationship that he would disregard her stated desires about the house, and, as the eldest son, and the only member of the family still residing at Green Street, for his own reasons regard Green Street as his domain. While that may well have been the view of Con, I am well satisfied that Stella did nothing to permit him to develop and maintain that understanding. Rather, as I have stated, I am satisfied that, over the years, she made it clear that she regarded herself as still being the owner of the house, and as such she required him to either leave the house or pay rent, and she objected to the renovations he was undertaking at the premises.

207 It is true that those conclusions mean that Con proceeded to embark on and complete very substantial renovation works to the house despite assertions by Stella which were inconsistent with any assumption that he was, or would be, the owner of the property. In doing so he took substantial care, and no doubt expended a lot of his time working on the house. He spent a large amount of money, and, as stated by Mr Browning, the workmanship and materials which have been employed in the renovations are of a very high standard. Nonetheless, I am satisfied that Con carried out those works notwithstanding that Stella had, by the means which I have stated, made it clear that he was not the legal owner of the house, and that he was not entitled to carry them out. In this connection, it is relevant that Con embarked on the extensive renovations of bedroom No. 1 and the study in 2003, after he had learnt of the contents of the Easton affidavit at the mediation of Christina's claim in October 2002, and after he gained an understanding as to the implications of Mrs Easton's evidence in respect of his mother's ownership of Green Street. He also knew that Christina had lodged a caveat over the property. The claim by Christina against her mother in respect of the grant of probate over her late husband's will was not resolved until some years later, and at least after March 2006. Thus, when Con embarked on the expensive and extensive renovations to the rear two rooms in the house, he did so knowing that not only was he not the owner of the house, but, indeed, that Stella's title to it might be in jeopardy.

208 Thus, while I am satisfied that, from the early 1990s, Stella was aware that Con was proceeding with substantial renovation works to the Green Street house, I am also satisfied that she did not acquiesce in, or encourage, the execution of those works by Con. As I have stated, I am satisfied that, from an early stage, Stella had consistently expressed to Con her disagreement with, and opposition to, those works. I am also satisfied that from 1995 Stella demanded that Con either leave the premises or pay rent for his occupation of them. Thus, while Con might have sought to act as if the house at Green Street was his own to occupy and to develop, Stella did not conduct herself in such a way as to convey to him that she acquiesced in or encouraged any assumption by Con that he was entitled to treat the house as if it was his own. To the contrary, I am satisfied that Stella, in her communications with Con, sought to assert her rights of ownership over the house, but that she was consistently ignored or overridden by Con.

209 In light of the findings which I have expressed above, it is clear that the first defendant has failed to make out the second basis of the counterclaim, namely an estoppel based on "acquiescence" or "encouragement". The authorities, to which I shall briefly refer, make it clear that, in order to found an equitable estoppel of the type relied upon by the first defendant, he must establish at least each of the following "elements" of the estoppel, namely:

(1) That at all material times he acted on an assumption that he was, or was entitled to be, the beneficial owner of the property at Green Street;

(2) That the plaintiff knew or intended that he was acting, or would act, on that assumption;

(3) That the first defendant acted on the basis of that assumption in such a way that he would suffer detriment if the plaintiff insisted on enforcing her legal rights in a manner which was inconsistent with, or contrary to, that assumption;

(4) That the plaintiff either encouraged the first defendant in the development and maintenance of the assumption, or, knowing that the first defendant was acting on the basis of that assumption, remained silent in circumstances in which either -

(ii) her silence constituted an implied representation as to the correctness of the assumption.

210 The principles, to which I have just referred, are derived from a number of the authorities, and were not in dispute in this case. Notwithstanding the different origins of the various species of estoppels which have been discussed in the authorities, the critical aspect, which lies at the heart of the equity, is constituted by the prevention by the Court of an unconscientious departure by one party of an assumption, held by a second party, in the development or maintenance of which the first party has played a relevant role.[18] A classic formulation of the principle is contained in the judgment of Dixon J (as his Honour then was) in Thompson v Palmer,[19] where his Honour stated:

"The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct ...; or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other parties adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption. But, in each case, he is not bound to adhere to the assumption unless, as a result of adopting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption be permitted."

211 As pointed out by Mason J and Deane J, in their joint judgment in Legione v Hateley,[20] Sir Owen Dixon did not employ the phrase "unjust departure" as " ... a charter for idiosyncratic justice and fairness". Their Honours noted that Dixon J defined that concept in Grundt v Great Boulder Pty Ltd Gold Mines Ltd,[21] where his Honour stated:

"The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it. But the law does not leave such a question of fairness or justice at large. It defines with more or less completeness the kinds of participation in the making or acceptance of the assumption that will suffice to preclude the party if the other requirements for an estoppel are satisfied."

212 Where a party seeks to establish an estoppel based on the circumstance that the other party has stood by in silence whilst he or she has acted to his or her detriment on the basis of a particular assumption, the party claiming the estoppel must either establish that the other party was under a duty to disabuse him or her of the assumption,[22] or that the other party's silence was tantamount to an implied representation that the assumption was correct,[23] As emphasised by Dixon J in Grundt's case, the concept of "duty" in such a context is not confined to a legal duty, but it is not a duty defined according to idiosyncratic notions of right and wrong. Rather, the duty arises when it would be unconscionable, in an equitable sense, for that party to remain silent[24].

213 The above statements of principle, while by no means complete, are sufficient for the purposes of the second basis upon which the first defendant has rested his counterclaim. On the findings of fact which I have outlined above, while Con may have sought to act as if he were the owner of Green Street, I am satisfied, on the balance of probabilities, that Stella did not encourage or acquiesce in Con so acting. I am satisfied that at all times she did not remain silent, but, rather, that throughout the relevant period of time with which this case is concerned, she communicated to him her demand that he either leave the premises or pay rent. That demand is inconsistent with Stella playing any role in the formulation by Con of his stance that he was, and was entitled to act as, the beneficial owner of Green Street. Further, I am satisfied that Stella at all material times expressed to Con her disapproval of and disagreement with the renovation works on which he was embarking at Green Street. She did not encourage or acquiesce in Con undertaking those works on the basis of an assumption or understanding by him that he was entitled to treat the house as his own. Rather, I accept that at all times Stella acted in a way which made it clear to Con that the basis upon which he was seeking to treat Green Street was inconsistent with the rights which she was asserting as the legal owner of the property. I am satisfied that Con, well aware of his mother's attitude, nonetheless persisted in endeavouring to treat Green Street as his own. It therefore follows that the first defendant has failed to establish the second basis of the estoppel asserted by him in his counterclaim, and that the counterclaim of the first defendant must fail.

214 My conclusions in relation to the first defendant's counterclaim bring me back to the claim made by the plaintiff in the proceeding. The only defence made to that claim was that maintained in the first defendant's counterclaim, which shall be dismissed. Otherwise, it was not disputed by the defendants that the plaintiff had established each element of her cause of action, entitling her to judgment for possession of the Green Street property against both defendants. Accordingly, the plaintiff is entitled to that relief.

215 In addition, the plaintiff claims, against each defendant, damages for trespass, or alternatively payment of a use and occupation fee. The only defence pleaded to that claim is based on s 5(1)(a) of the Limitation of Actions Act 1958 (Vic), namely, that any claim for damages for a period more than six years before the issue of the writ in October 2003 is barred. The plaintiff did not plead any reply to that defence. Accordingly, it is common ground that, if the plaintiff is entitled to damages, or to a use and occupation fee, that claim is limited to the occupation by the defendants of the premises since October 1997.

216 The plaintiff's claim was based on the evidence of a licensed real estate valuer, Mr Karl Cundall, as to the rental value for the property at Green Street from 1997 to November 2007. Mr Cundall based those estimates on the assumption that the property was in fair condition until 2000, and was in fair to good condition thereafter. In cross-examination, he told me that his assessment was based on the assumption that various renovations had been carried out to the property over the relevant period. He produced an alternative measure of rental estimates (Exhibit 18) on the basis of the unrenovated condition of Green Street during that period.

217 There was little argument in final address as to the basis upon which damages should be assessed by me, in the event of the plaintiff succeeding on her claim. Nonetheless, in assessing those damages two interrelated issues arise. The first issue is whether I should assess damages on the basis of rental for a renovated house or an unrenovated house. On behalf of the defendants, it was contended that the appropriate measure of damage would be on the basis that the house had not been renovated. The second, and more important issue, is whether the damages to be awarded to the plaintiff, based on the rental value of the property over the period of the trespass, should be assessed by taking into account, and thus being reduced by, the value of the substantial improvements effected by Con to the house during the period of the trespass. In relation to that second issue, I drew counsel's attention to two authorities - Lord Cawdor v Lewis[25] and Tai Te Whetu v Scandlyn & Ors[26] - which appeared to support the proposition that the plaintiff's claim for damages is not to be reduced or offset by the value of renovation works or improvements undertaken by the first defendant.

218 In her final address, Ms Sparke submitted that, based on those two authorities, the plaintiff was entitled to damages, consisting of the rental value of the property for the period of the trespass, without any diminution taking into account the value of the improvements effected by Con. She was unable to point to any other authority than the two cases which I have just mentioned, in support of that submission. On the other hand, Mr Kendall submitted that I should take into account the value of the improvements effected by Con. However, he did not address to me any argument why I should do so, nor did he address any argument in relation to the two cases to which I have referred above.

219 Subject to the two issues to which I have referred above, the law relating to the assessment of damages for trespass is well settled. Damages awarded for trespass to land are sometimes described as "mesne" profits[27]. The usual measure of such damages is constituted by the value of the market rent for the premises which the trespasser should have paid during the period of the trespasser's occupation of the premises. In order to prove an entitlement to such damages, it is not necessary for the plaintiff to establish that the property has been damaged, or that the plaintiff would have been able, or indeed willing, to lease the premises during the period of the trespass.

220 Those principles were settled by the Court of Appeal in Whitwham v Westminster Brymbo Cole & Coke Company[28]. In that case, the defendants trespassed on the plaintiff's land by tipping soil on to it from their colliery. It was submitted that, because the plaintiff had failed to prove any loss of user of the property during the trespass, damages should not be awarded on the basis of the rental value of the property. The Court of Appeal, upholding the decision of Chitty J at first instance[29], rejected that proposition. The Court applied the principles established by the "way-leave" cases, to the effect that, if one person without the leave of another uses the other's land for his or her own purposes, then the trespasser ought to pay for that user. That principle has been adopted and applied for more than one century in a number of cases. In Swordheath Properties Limited v Tabet & Ors,[30] Megaw LJ held that, in order to be entitled to such damages, the plaintiff is not required to prove that he or she would have or could have leased the property to someone else during the period of the trespass. His Lordship stated:

"It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages."[31]

221 Thus, notwithstanding that the plaintiff did not adduce any evidence that she would, or could, have leased the premises at Green Street during the period of the trespass by the defendants, she is entitled, prima facie, to damages for the trespass calculated as the reasonable rental value of those premises during that period. The authorities, however, leave open the question whether, in calculating those damages, I should take into account, and offset, the value of the renovations undertaken by Con to the premises.

222 Apart from the two authorities to which I referred counsel, I have been unable to find any other authority directly in point on this question. The factual background to the decision of the Court of Exchequer in Lord Cawdor v Lewis is quite complex. In that case the plaintiff's predecessor (the late Lord Cawdor) had, mistakenly, occupied, and erected a smelting house on, property owned by the defendant's predecessor (Thomas Lewis). The defendant had successfully obtained judgment against the plaintiff, at common law, for possession of the property. The plaintiff sought an injunction in the Court of Exchequer to restrain the defendant from claiming mesne profits in that action. The plaintiff's substantial claim in the Court of Exchequer was based in equity, on the basis that Lewis had stood by and allowed him to spend money on the lands without giving to Lord Cawdor the notice of his title.[32] The defendant admitted that the plaintiff had an equitable claim for compensation on that basis. The Lord Chief Baron held that "because in an action for mesne profits no setoff is allowed", he should not allow the defendant to "go to law" and claim mesne profits, in light of the plaintiff's undisputed claim in equity to compensation.[33] Thus, his Lordship extended an interlocutory injunction, against the defendant claiming mesne profits at common law, until the hearing of the suit in equity to determine the amount of compensation payable to the plaintiff.

223 That decision was referred to, and applied, by Fell J of the Supreme Court of New Zealand in Tai Te Whetu v Scandlyn & Ors.[34] In that case, the defendant had occupied the land of the plaintiff under a lease, which was later found to be void. During the period of occupation the defendant had made improvements to the land. The defendant argued that he should be entitled to offset, against the plaintiff's claim for mesne profits, the value of those improvements. That submission was rejected by Fell J. His Honour regarded the decision of the Court of Exchequer in Lord Cawdor v Lewis as authority against the defendant's submission. His Honour held that the plaintiff should not be compelled to pay for, or offset, the value of improvements made without his consent. Accordingly, he awarded damages to the plaintiff for mesne profits without any deduction for the value of the improvements.

224 The authorities to which I have just referred do not, with respect, provide a strong basis for the proposition that, in each and every case, the value of improvements effected by a trespasser may not be taken into account in a claim for damages for trespass consisting of the rental value of the property during the period of trespass. The decision of Fell J in Tai Te Whetu is substantially, if not wholly, dependent on the decision of Abinger CB in Lord Cawdor v Lewis. As I shall later explain, I do not regard the decision, properly understood, as authority for that proposition, but, if it is, the Lord Chief Baron did not cite any authority for it. Further, the law relating to the assessment of damages for trespass has largely been developed and established during the last century, since the decision of the Court of Appeal in Whitwham. It is in the line of authority commencing with Whitwham that, in my view, the answer to the present question may be found.

225 As I have already mentioned, in Whitwham, Chitty J, at first instance, rejected the submission of the defendants that the measure of damages is the diminished value of the property, caused by the trespass, and not the value of the property to the trespasser during the period of the trespass. His Lordship stated:

"Now the question is whether the principle of the way-leave cases applies in a case of tipping. They are founded on the principle that a wrongdoer shall not make a profit out of his own wrong, and that the value of the land for the purposes for which it was actually used by the wrongdoer ought to be taken into consideration. ... I think that the principle does apply (to this case), and that the plaintiffs are entitled to damages on the basis of what would be a reasonable sum to be paid for the use of their land by the defendants for tipping purposes."[35]

226 The decision of Chitty J was upheld by the Court of Appeal, on substantially the same grounds. Lindley LJ stated:[36]

"The plaintiffs have been injured in two respects. First, they have had the value of their land diminished; secondly, they have lost the use of their land, and the defendants have had it for their own benefit. It is unjust to leave out of sight the use which the defendants have made of this land for their own purposes, and that lies at the bottom of what are called the way-leave cases. Those cases are based upon the principle that, if one person has without leave of another been using that other's land for his own purposes, he ought to pay for such user. ... Applying that reasoning to this case, on what principle of justice can it be said that these defendants are to use the plaintiff's land for years for their own purposes, and to pay nothing for it, in addition to the injury that they have done to the land? Chitty J has proceeded upon that principle, and, the principle being right, the figures are not disputed. The appeal must be dismissed with costs."

227 In Inverugie Investments Ltd v Hackett,[37] the Privy Council, having quoted the passage from the judgment of Megaw LJ in Swordheath Properties Limited, which I have cited earlier,[38] stated:

"It is sometimes said that these cases are an exception to the rule that damages in tort are compensatory. But this is not necessarily so. It depends on how widely one defines the 'loss' which the plaintiff has suffered. ... In Stoke-On-Trent City Council v W & J Wass Limited [1988] 1 WLR 1406 Nicholls J called the underlying principle in these cases the 'user principle'. The plaintiff may not have suffered any actual loss by being deprived of the use of his property. But under the user principle he is entitled to recover a reasonable rent for the wrongful use of his property by the trespasser. Similarly, the trespasser may not have derived any actual benefit from the use of the property. But under the user principle he is obliged to pay a reasonable rent for the use which he has enjoyed. The principle need not be characterised as exclusively compensatory, or exclusively restitutionary; it combines elements of both."

228 In Ministry of Defence v Ashman,[39] Kennedy LJ described the damages to be awarded in a case of trespass to be "somewhat analogous to quasi contractual restitution".[40] Hoffman LJ was bolder, and regarded the nature of the damages to be entirely restitutionary. His Lordship stated:[41]

"A person entitled to possession of land can make a claim against a person who has been in occupation without his consent on two alternative bases. The first is for the loss which he has suffered in consequence of the defendant's trespass. This is the normal measure of damages in the law of tort. The second is the value of the benefit which the occupier has received. This is a claim for restitution. The two bases of claim are mutually exclusive and the plaintiff must elect before judgment which of them he wishes to pursue. ... It is true that in the earlier cases it has not been expressly stated that a claim for mesne profit for trespass can be a claim for restitution. Nowadays I do not see why we should not call a spade a spade. In this case the Ministry of Defence has elected for the restitutionary remedy. It adduced no evidence of what it would have done with the house if the Ashmans had vacated. In my judgment such matters are irrelevant to a restitution claim. All that matters is the value of the benefit which the defendant has received." (Emphasis added)

229 It is not necessary for me to enter into the debate as to whether the damages, which are awarded under the principles enunciated in Swordheath Properties, are restitutionary or compensatory, or both. To the extent to which the damages are restitutionary, they are founded on the notion that the trespasser must restore to the owner of the property the benefit derived by the trespasser from the occupation by him of the owner's property. In the large majority of cases, it would be unjust and erroneous to take into account, in favour of the trespasser, expenses and costs incurred by the trespasser in effecting improvement to the property without the permission of the owner. In many, if not most of, such cases the improvements would have enured to the immediate benefit of the trespasser, during the period of the trespass complained of. However, in determining the appropriate amount to be repaid by way of "restitution", that principle could not hold true in all cases. In the present case, Con has expended very significant sums of money, and has himself carried out what he describes as "thousands" of hours of work, restoring and renovating the house. It was not disputed in the trial that the renovations have significantly improved the value of the house. The improvements were carried out with a view to the future enjoyment of the premises. The evidence discloses that, in the short term, they detracted from, rather than enhanced, the user of the premises during the trespass. Most of the benefit of the improvements have not enured to the enjoyment of the premises by Con and Irene during the period of the trespass. If Con were now ordered to pay damages consisting of the market rental of the property, he would be required to do so in circumstances in which he has spent a large amount of money, and worked over a very long period of time, at his own inconvenience, in a manner which will be significantly to the financial advantage of his mother, the plaintiff. In the unusual circumstances of this case, a requirement that Con pay such damages to Stella, undiminished by a fair evaluation of the cost to him of the works undertaken by him in improving the house, could not be regarded as a remedy comprising just restitution by a wrongdoer of the benefits derived by that wrongdoer of his trespass.

230 Similarly, to the extent to which damages in a case such as this may be compensatory, it is basic that, in an action for tort, damages are awarded as compensation, in order to restore the plaintiff to the position in which the plaintiff would have been, had the tort not occurred. In this case, if the defendants had not trespassed on the plaintiff's property, and if they had acceded to her demands that they leave the property, the house would not have been renovated to anything like the extent to which it has been. It is true that most of the renovations were carried out contrary to the wishes of the plaintiff. Nonetheless, as I have stated, they have substantially enhanced the value of the property. Ordinarily, it might be expected that renovations or improvements gratuitously undertaken by a trespasser should not, as a matter of fairness, be taken into account in determining damages to be awarded against a trespasser by way of compensation to the owner. However, this is a most unusual case. If I were to award to Stella damages comprising the whole of the market rental for the premises, undiminished by the value to her of the improvements effected by Con, such an award would go well beyond fairly compensating her for the loss which she sustained as a result of the trespass on her property by the defendants.

231 Thus, on either view of the juridical basis of an award of damages in a case such as this, as a matter of principle, it would seem to me that, in an appropriate case, the Court may and should take into account either the cost or value of improvements effected by the defendant trespasser. I emphasise that this is an unusual case. There is no evidence that the plaintiff has suffered any loss as a result of the trespass. As a result of her success in this action, she will regain possession of a house, the value of which has been significantly enhanced by the hard work, and at the expense, of the first defendant. The defendants have gained nothing as a result of their trespass. Their user of the property as trespassers was significantly diminished by the disruption and inconvenience occasioned by the renovation work. As a result of the order for possession, they will lose substantially, regardless of whether they are required to pay damages. The rental which they would have been required to pay on other premises (or to Stella) would be significantly reduced, if not entirely offset, by the cost and value of the work undertaken by Con, to the financial benefit of the plaintiff. There is no evidence that the plaintiff wished to live in the house in the meantime, to sell it, or to put it to any other use. Thus, in the unusual circumstances of this case, in my view it is appropriate, as a matter of principle, that either the cost or the value of the works undertaken by Con to the house be taken into account in determining the damages to be awarded for the plaintiff.

232 With those principles in mind, I return to the two authorities to which I have earlier referred. In my view, when properly analysed, I do not consider that the decision of Abinger CB in Lord Cawdor v Lewis stands in opposition to those principles.

233 The precise basis of the decision by the Lord Chief Baron is not entirely clear from the short report of the case. However, the following points may be made in relation to it. First, it seems that Abinger CB granted the injunction on the basis of the simple proposition that the claim of the plaintiff (Lord Cawdor) for relief in equity, in that case by way of compensation, could not be set off against the defendant's claim for mesne profits, which was a claim at common law. Thus his Lordship was not directly addressing the question whether, at law, the amount of mesne damages might have been reduced by the improvements effected by Lord Cawdor. While that proposition may be implicit in the reason why the plaintiff, Lord Cawdor, had sought the intervention of equity, it is not part of the actual reasoning of the Lord Chief Baron. Secondly, if (contrary to what I have just said) that proposition was part of his Lordship's reasoning, he cited no authority in support of it. His Lordship was hearing a case in equity, and, to the extent to which his statement reflected on the calculation of mesne profits of common law, it could only be obiter dictum. Thirdly, the decision in Lord Cawdor was well before the more modern line of authorities, commencing with the judgment of the Court of Appeal in the Whitwham case, which have identified and clarified the basis of the claim by the plaintiff in this case for the rental value of the premises during the period of occupation of them by the defendants.

234 Thus, I do not consider that the decision in Lord Cawdor would stand in the way of the conclusions which I have expressed above, and which, in my view, are based on an analysis of the fundamental principles underlying the type of damages which should be awarded to the plaintiff in this case. The decision of Fell J in Tai Te Whetu was substantially, if not wholly, based on the decision in Lord Cawdor, and on the explanation of that decision in the 11th edition of Mayne on Damages, quoted by his Honour. The decision of Fell J is expressed in short compass, without reference to the considerations which I have analysed above. There is no subsequent authority, which I have been able to locate, which has followed or considered that decision. In those circumstances, while the decision is persuasive, I do not consider that it establishes, as a universal proposition, that in the circumstances of this case, the claim for damages by the plaintiff, based on the reasonable rental value of the property, should not take into account the cost or value of the improvements undertaken by Con to those premises during the relevant period of the trespass complained of.

235 Based on those principles, I therefore turn to the evidence in relation to the quantification of the damages claimed by the plaintiff. As I have stated, the plaintiff relies on the evidence of Mr Cundall. The defendants did not adduce evidence from any valuer to the contrary, in relation to the rental value of the property. I accept Mr Cundall's evidence. If, as is my view, it is appropriate to offset, against the rental claimed by the plaintiff, the cost or value of the improvements effected by Con, then, equally, it is appropriate to quantify the rental value of the premises to him on the basis of the renovated state of the premises. On that basis, I calculate the fair rental value of the premises from 1997 to November 2007 at $208,630.

236 The evidence as to the cost and value of the work undertaken by Con in renovating the house was led in quite short compass. I have already referred to Mr Browning's evidence, to the effect that the invoice value of that work was $555,248. Mr Browning himself concedes that that method of calculation is not entirely exact. Further, as pointed out by Ms Sparke, some of Mr Browning's calculations may not be accurately based on the underlying material. For example, he used an hourly rate of $45 for carpentry works, when it would appear that an invoice, tendered in evidence, reflected an hourly rate of $25 per hour. Nevertheless, I regard Mr Browning's evidence as a reliable guide as to the approximate quantum of the invoice cost to the works undertaken by Con.

237 A number of the works were undertaken by Con himself. Con did not perform any exact calculation of the cost to him of materials and contractors. However, he gave evidence that he estimated that cost to have been in the order of $250,000 to $300,000. That evidence was not the subject of any cross-examination. He also stated that he himself had spent "thousands" of hours in carrying out the works, and that evidence was not the subject of cross-examination either. Further, the plaintiff did not adduce any evidence to contradict the evidence of Mr Browning or Con in that respect.

238 Con did tender a bundle of invoices (Exhibit 35) for some of the expenses incurred by him in respect of the renovations. Those invoices are confined to the period after 2001, and they total approximately $75,000. They do not reflect at all the cost to Con of the works which he performed before 2001. Nor, it would seem, are the invoices an exhaustive record of the costs incurred in respect of the works after 2001. Accordingly, while Con's evidence as to the cost to him of the work may be a little exaggerated, in light of Mr Browning's evidence, I regard his evidence as to the costs actually incurred by him as being broadly accurate. In that case, even allowing a modest hourly rate for Con's work over the years, it would seem that a fair estimate of the "cost" of that work to Con, in terms of expense incurred, and hours spent, would be at least $400,000.

239 Both sides led evidence as to the "value added" to the premises at Green Street as a consequence of the works undertaken by Con. Mr Cundall, who was called on behalf of the plaintiff, valued the premises, as at November 2007, in the sum of $1,000,000. Of that value, he attributed $845,000 to the land, and $155,000 to the improvements. If the property had not been improved, it would be worth $885,000. In that way, it is put on behalf of the plaintiff that the renovations undertaken by Con added approximately $115,000 to the value of the premises.

240 The figures produced by Mr Cundall are not particularly different to those arrived at by the defendants' valuer, Mr Matler, whose reports were tendered in evidence. Mr Matler was not cross-examined in relation to those reports. Mr Matler valued the property as at 8 November 2007 in the sum of $995,000. Of that sum, the land value is $826,000. Mr Matler also expressed the view that, in an unrenovated state, the property would be worth $935,000, with the value of the residence in an unrenovated state being $109,000. Thus, on that analysis, the renovations carried out by Con "added value" to the premises in the sum of $60,000.

241 In my view, it would be unrealistic, and inappropriate, to use the method of valuation, undertaken by the two valuers, as the sole means of calculating the amount by which the plaintiff's claim for damages should be reduced in this case. As Mr Kendall pointed out, there is a substantial artificiality in producing a valuation of a property as a whole, assessing the land value, and then treating the residue as the value of the improvements. Generally, the market value of a property comprises a synthesis of the land value and the value of the improvements. The market value may be less, or greater, than the value of those component parts. Further, and in any event, even if it is correct to rely on the evidence of the valuers to the effect that Con's works have only added $60,000 to $100,00 to the value of the land, the fact remains that he has spent very significant amounts of money, and devoted very many hours of labour, to achieving that result. From a restitutionary point of view, during the period of his trespass, he has incurred those expenses to improve the property. From a compensatory point of view, the plaintiff has received an increase in the value of her premises, at considerable cost to the defendants. In those circumstances, I consider that the appropriate method of calculating the "offset" against the plaintiff's damages is to take into account the cost to the defendant which, on any analysis, is well in excess of the rental value claimed by the plaintiff. Accordingly, it follows that the plaintiff's damages are totally offset by the renovation works and the value of them carried out by Con. For those reasons I reject the plaintiff's claim for damages.

242 In summary, for the reasons which I have expressed at some length in this judgment, I have reached the following conclusions:

(1) The first defendant has not established either basis of estoppel asserted by him in his counterclaim. On the contrary, I am satisfied that there is no basis for the promissory estoppel, or for the estoppel by acquiescence or encouragement, pleaded in the counterclaim. Accordingly the counterclaim should be dismissed.

(2) The plaintiff is therefore entitled to possession of the premises. The defendants have failed to comply with the demands of the plaintiff that they vacate the premises. Accordingly the plaintiff is entitled to an order for possession of the property at 25 Green Street, Camberwell against both defendants.

(3) The plaintiff has not established her claim for damages against either defendant, and that claim will be dismissed.

243 Before departing from the case, it is appropriate for me to make the following concluding remarks. In analysing the evidence, and in applying the law, as I have done, I have been acutely conscious that the conclusions which I have reached will result in the plaintiff obtaining an order against her eldest son, his common law wife, and her two young grandchildren, requiring them to vacate the property which they have made their home for a substantial period of time. I am also acutely conscious that my conclusions mean that the first defendant will be excluded from the home to which he has devoted so much care, effort and expense. While that conclusion is necessitated by the findings of fact which I have reached, and the principles of law which are applicable to them, it occasions me no satisfaction that the outcome of this case will, no doubt, exacerbate the tragic differences which have divided the Loulatzis family. At an early stage in the trial I exhorted the parties to endeavour to compromise their differences, and to attempt to resolve them, rather than pursuing their respective legal rights. Accordingly, at the end of the plaintiff's evidence, I directed that the matter proceed to mediation. Unfortunately the mediation did not succeed in achieving a settlement between the parties. At the conclusion of the final addresses I again encouraged the parties to make one last effort to reach a settlement between them. Notwithstanding that the case has now proceeded to judgment, I remain of the firm view that a much better result would be achieved for both sets of parties - the plaintiff, Stella Loulatzis, and the defendants, Con Loulatzis and Irene Petruccelli - and for their respective families, if the parties could still see their way to resolving their differences as to the premises at Green Street, rather than relying on the outcome of this case. I encourage them to do so.

[2] [1985] HCA 78; (1985) 160 CLR 583.

[3] [1987] HCA 59; (1987) 164 CLR 137.

[4] [2006] NSWSC 41, [27].

[5] [1937] HCA 58; (1937) 59 CLR 641, 675 (Dixon J).

[6] [1933] HCA 61; (1933) 49 CLR 507, 547 (Dixon J).

[7] [1988] HCA 7; (1988) 164 CLR 387, 404 (Mason CJ and Wilson J), 423 (Brennan J).

[8] [1976] Ch 179, 188 (Lord Denning MR).

[10] Ibid, 140 - 141; See also at 147 (Lord Cranworth LC), 168 (Lord Wensleydale); 170 - 171 (Lord Kingsdown).

[11] Walton v R [1989] HCA 9; (1989) 166 CLR 283.

[18] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 406 (Mason CJ, Wilson J), 419 (Brennan J).

[19] [1933] HCA 61; (1933) 49 CLR 507, 547.

[20] [1983] HCA 11; (1983) 152 CLR 406, 431.

[21] [1937] HCA 58; (1937) 59 CLR 641, 675-676.

[22] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 427-428 (Brennan J); Ramsden v Dyson & Anor (1866) LR 1 HL 129, 141 (Lord Cranworth LC).

[23] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 443 (Deane J).

[24] The Commonwealth v Verwayen (1990) 170 CLR 394, 444 (Deane J).

[25] (1835) 1 Y and C Ex 427; [1835] EngR 814; 160 ER 174.

[26] [1952] NZLR 30.

[27] Wilson v Kelly [1957] VicRp 19; [1957] VR 147, 152.

[28] [1896] 2 Ch 538.

[29] [1896] 1 Ch 894.

[30] [1979] 1 WLR 285, 288.

[31] See also Ministry of Defence v Ashman (1993) 66 P& CR 135; Inverugie Investments Ltd v Hackett [1995] 1 WLR 713, 717-8; Lamru Pty Ltd v Kation Pty Ltd & Ors (1998) 44 NSWLR 432, 439; Yakamia Dairy Pty Ltd v Wood [1976] WAR 57.

[32] (1835) 1 Y and C Ex 427, 430, 433.

[34] [1952] NZLR 30.

[35] [1896] 1 Ch 894, 899.

[36] [1896] 2 Ch 538, 541-2.

[37] [1995] 1 WLR 713, 717 - 718.

[39] (1993) 66 P & CR 195.