Proietti v Proietti

Solicitors: Self-represented (Appellant) Maatouks Law Group (Respondent) File Number(s): 2022/217751 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: [2022] NSWSC 875 Date of Decision: 30 June 2022 Before: Kunc J File Number(s): 2022/14128

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Philip Proietti, and the respondent, Mr Peter Proietti, are brothers. Their mother, Ms Miranda Proietti, died on 28 November 2019. By her last will made on 17 March 2016 ("the 2016 Will"), Miranda devised and bequeathed her entire estate upon trust to be divided equally between Philip and Peter. The estate included a property at Marsfield, which was the family home. An unsigned copy of a previous will prepared by Miranda, which the primary judge assumed was executed in 2015 ("the 2015 Will"), contained a stipulation absent from the 2016 Will: that Philip be allowed to live at the Marsfield property for four years after her death. On 12 March 2020, probate of the 2016 Will in common form was granted to Philip and Peter. The brothers were subsequently registered as the owners of the Marsfield property as tenants in common as to one half each. Since that time, Philip has continued to reside in the home. For a period, he paid rent to Peter. On 17 January 2022, Peter filed a summons in the Equity Division seeking orders under s 66G of the Conveyancing Act 1919 (NSW) that trustees be appointed to sell the Marsfield property. Philip, who represented himself (both in the Equity Division and in the appeal), resisted those orders on three bases: proprietary estoppel, promissory estoppel, and contract. The proceedings were case managed in the Equity Division through the Online Court, and the Usual Order for Hearing was made, in accordance with the relevant practice notes. During the hearing before the primary judge, large parts of Philip's affidavit evidence were struck out in accordance with objections raised by Peter prior to the hearing, including that Philip's evidence contained speculation as to Miranda's state of mind about why the 2015 Will was changed. Philip appealed against the primary judge's making of orders under s 66G on four main grounds, namely, that: (1) He was denied procedural fairness on the basis that there was a lack of directions hearings, pleadings, a mediation, or an order for the provision of written submissions, and was thus at a "severe disadvantage" in presenting his defences; (2) He was denied an opportunity to object to Peter's affidavit and not given a fair opportunity to address the objections taken to his own affidavit; (3) His Honour's decision was affected by actual and apprehended bias based, principally, on findings being made against him "on nearly every single issue"; and (4) His Honour's findings in respect of his defences were erroneous based on Peter's alleged knowledge of, and duty to tell him about, the 2015 Will, which Philip alleged was changed due to Peter exerting undue influence on their mother ("the proprietary estoppel defence"). He also alleged that there was an agreement not to sell the property before 2023, in respect of which he sought to rely primarily on the lack of evidence of any text messages between the parties concerning a pre-2023 sale ("the contract and promissory estoppel defences"). Ground 5 of the Notice of Appeal was, in effect, an application under rule 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) to adduce further evidence, including from Miranda's former solicitor that he (that is, the solicitor) was not responsible for changing the 2015 Will. Ground 6 sought dismissal of the proceedings under s 66G and the setting aside of the costs order. The Court (Mitchelmore JA, Basten and Griffiths AJJA agreeing), dismissing the appeal, held: As to Ground 1: (1) Philip was not denied procedural fairness in any of the respects that he identified: (a) The proceedings were required to be commenced by summons, and any application for pleadings would need to support their necessity, including by reference to the efficiencies pleadings would achieve in the particular case: [77], [120], [121]. Uniform Civil Procedure Rules 2005 (NSW), rule 6.4(1)(i); Civil Procedure Act 2005 (NSW), s 56(1) considered. (b) If Philip's complaint that he was not given substantive guidance in directions hearings is a call for judicial advice, the Court could not give him that advice, nor could the Court conduct his case on his behalf. If Philip's complaint was more limited to matters of practice and procedure, then he accepted that he received the orders made through the Online Court and consented to them being made. That he subsequently considered that he was ill-advised to do so was not a matter that gave rise to procedural unfairness: [78]-[81], [120], [121]. DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225; Hamod v New South Wales [2011] NSWCA 375; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 applied. (c) Mediation is not mandatory and is conditional on the Court forming the view that the circumstances of the case are appropriate. Its application must be considered alongside complementary provisions of the Civil Procedure Act (as to which self-represented litigants are required to make themselves aware): [82]-[83], [120], [121]. Civil Procedure Act 2005 (NSW), ss 26 and 56 to 61 considered. As to Ground 2: (2) Philip's complaint was not supported by the provision of the Court Book to Philip in advance of the hearing, which contained Peter's objections to Philip's evidence: [87], [120], [121]. (3) More significantly, and in any event, the parts of Philip's affidavit in which he sought to engage in speculation about what motivated his mother to change her previously communicated position were properly rejected, while parts of the affidavit in which he sought to explain the conclusions he had drawn from events were properly treated as submissions rather than evidence: [88], [120], [121]. (4) Although Philip sought to contend otherwise, Miranda's former solicitor's statement to Philip that he was not responsible for changing the 2015 Will was hearsay, for which there was no applicable exception: [89], [120], [121]. As to Ground 3: (5) The materials before the Court did not support Philip's allegation of actual bias, which required that the primary judge was committed to a conclusion from which his Honour could not be moved. As to the allegation of apprehended bias, although Philip emphasised that his Honour described the case as an "unremarkable" one for the making of s 66G orders, that description was required to be read with the preceding words, "but for the defences that have been raised", and with the primary judge emphasising that he did not intend any disrespect in so describing the case: [95], [120], [121]. Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228; South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 applied. (6) In his written and oral submissions, Philip failed to identify anything that might have led the primary judge to decide the matter other than on its legal and factual merits. The fact that the primary judge did not accept his arguments does not give rise to an apprehension of bias: [98], [120], [121]. Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 applied. As to Ground 4: (7) The proprietary estoppel defence entailed speculation and conjecture in the face of Peter's direct and consistent denial of knowledge of the 2015 Will. Philip's submissions did not demonstrate a glaring improbability as to Peter's account, or compelling inferences to the contrary, such as would enable this court to reach a different conclusion to that reached by the primary judge. Philip's subsequent "realisation" amounted to no more than speculation on his part about his mother's intention: [108]-[110], [120], [121]. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 applied. (8) The absence of text messages regarding the sale of the Marsfield property did not constitute positive support for Philip's his claim that his brother had promised that he could remain in the property until 2023. There was no legal error in the primary judge's findings with respect to the contract and promissory estoppel defences: [111], [120], [121]. As to Grounds 5 and 6: (9) Further evidence from the solicitor would not assist Philip to make good the fundamental proposition on which his proprietary estoppel claim rested, namely, that Peter knew about the 2015 Will, noting that the primary judge proceeded on the basis that the 2015 Will had been executed: [112], [120], [121]. (10) There was no reason why costs should not have followed the event in the court below: [113], [120], [121].

Judgment

1. MITCHELMORE JA: The appellant, Mr Philip Proietti, and the respondent, Mr Peter Proietti, are brothers. On 28 November 2019, their mother, Ms Miranda Proietti, died after what the primary judge described as "a short but devastating illness". Without intending any disrespect, I will refer to the parties and their late mother by their given names.
2. Miranda made her last will on 17 March 2016. By that will ("the 2016 Will"), Miranda devised and bequeathed her entire estate upon trust to be divided equally between Philip and Peter. The estate included a property at Marsfield, which was the family home. Philip has lived in the Marsfield home for more than 30 years. Peter has not lived at the property for many years.
3. On 12 March 2020, probate of the 2016 Will in common form was granted to Philip and Peter. The brothers were subsequently registered as the owners of the Marsfield property as tenants in common as to one half each. Since that time, Philip has continued to reside in the home. For a period, he paid rent to Peter.
4. On 17 January 2022, Peter filed a summons in the Equity Division seeking orders under s 66G of the Conveyancing Act 1919 (NSW) that trustees be appointed to sell the Marsfield property. Philip, who represented himself (both in the Equity Division and in this appeal), resisted those orders on three bases: proprietary estoppel, promissory estoppel, and contract.
5. On 30 June 2022, Kunc J delivered judgment granting Peter the relief that he sought: Proietti v Proietti [2022] NSWSC 875. On 7 July 2022, his Honour entered orders giving effect to the judgment. Those orders, which include an order requiring Philip to vacate the Marsfield property, have been stayed pending the outcome of this appeal.
6. By Notice of Appeal filed on 25 July 2022, Philip appeals from the decision of the primary judge. His grounds of appeal allege denials of procedural fairness, bias on the part of the primary judge, and errors of law with respect to his Honour's dismissal of the arguments that Philip raised in response to Peter's application, relying on promissory estoppel, proprietary estoppel, and contract. Philip submits that further evidence could also be admitted to substantiate those defences and justify the dismissal of Peter's claim under s 66G of the Conveyancing Act.
7. For the reasons that follow, I consider that the appeal must be dismissed. There is no substance in any of the challenges that Philip has made to the decision of the primary judge or the fairness of the process by which his Honour came to make that decision.

The evidence

1. In the court below, Philip relied on an affidavit sworn by him on 16 March 2022. Counsel for Peter objected to the admissibility of parts of Philip's affidavit. As the primary judge noted in [6] of his Honour's reasons, "a large number" of those objections were upheld. Philip was not cross-examined.
2. In addition to a formal affidavit of his solicitor that was filed in support of the Summons, Peter relied on two affidavits sworn by him on 22 December 2021 and 11 April 2022. Philip did not make any objections to either of those affidavits, but he did cross-examine Peter.

Peter's first affidavit

1. In his first affidavit, Peter's evidence was that in accordance with the terms of the 2016 Will, title to the Marsfield property passed to him and his brother. On 1 January 2020, Peter spoke with Philip about his continuing to reside in the property. Philip agreed to start paying a weekly rent of $400 from 1 July 2020. This arrangement lasted for a little over a year, with Peter receiving the final rental payment on 28 July 2021.
2. On 15 March 2021, Peter told Philip that he wanted to sell the property because the market was good and he wanted to invest elsewhere. Philip said that he needed until mid-2022 to raise the finance to buy out Peter's share. By 24 September 2021, Philip was telling Peter that he needed until mid-2023.
3. On 8 October 2021, Peter requested through his then solicitors that Philip cooperate with his intention to sell the property. Philip declined to do so.
4. On 8 November 2021, Philip proposed that there be no sale until 30 March 2023 and that he would pay the rent originally agreed, including any amounts outstanding. Peter's solicitors responded on 9 November 2021, advising that unless Philip consented to placing the property on the market and dividing the net proceeds, Peter's instructions would be sought to initiate proceedings.
5. Peter's second affidavit responded to the matters raised in Philip's affidavit sworn on 16 March 2022. Accordingly, it is convenient to consider them in sequence.

Philip's affidavit

1. Philip's evidence was that he had lived in the Marsfield property "for the vast majority of [his] life". He cared for his father, Mr Giuseppe Proietti, who suffered from Alzheimer's disease, for about four years until he passed away in 2015. Philip claimed that around this time, Miranda told him that she wanted to include in her will that the Marsfield property was not to be sold for four years after her death. Philip told her that this would not be necessary as he and Peter "got along", but his mother insisted.
2. Philip annexed to his affidavit an unsigned copy of a will from 2015, which he said that Miranda had executed ("the 2015 Will"). Peter did not object to the tender of the 2015 Will even though it was not executed; and the primary judge assumed, in Philip's favour, that Miranda had executed this will: [15]. The 2015 Will provided in part (adopting the same redactions and omissions as appear in [16] of the reasons of the primary judge): "THIS IS THE LAST WILL AND TESTAMENT of me MIRANDA PROIETTI of XXXX, Marsfield in the State of New South Wales, Table Hand. 1. I HEREBY REVOKE all former Wills and testamentary dispositions made by me AND DECLARE this to be my last Will and testament. 2. IF my sons PHILIP JOSEPH PROIETTI and PETER ROBERT PROIETTI both survive me by the period of one (1) calendar month then the provision of Schedule One of this Will shall apply. […] SCHEDULE ONE 1. I APPOINT as my Executor and Trustee my said sons PHILIP JOSEPH PROIETTI of XXXX, Marsfield in the State of New South Wales and PETER ROBERT PROIETTI of XXXX, Mt Annan in the State of New South Wales, (hereinafter referred to as 'my Trustee'). 2. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind or nature and wheresoever situate to my Trustee UPON TRUST to be divided equally between my sons. 3. I GIVE the following directions to my Trustee concerning my principal residence at XXXX, Marsfield (residence): (a) my son PHILIP JOSEPH PROIETTI may live in the residence for a period of up to four (4) years from the date of my death provided: (i) he pays the rates, taxes and other outgoings for the residence; (ii) he keeps the residence insured against loss and damage from fire, storm and tempests in any amount, and with an insurance office, approved by my Trustee; and (iii) he maintains the residence in a state similar to that in which it is at my death. (b) the residence is not to be sold within the four (4) year period without PHILIP JOSPEH PROIETTI's consent except where: (i) my said son has, in my Trustee's opinion, ceased to live in the residence permanently; or (ii) my said son has, in my Trustee's opinion, ceased to comply with the conditions in clause 3(a)(i), (ii) or (iii), or (iii) my said son dies."
3. In 2016, Philip was admitted to hospital with severe pancreatitis. He described the Marsfield property as becoming his "hospital" and an integral part of his life. Miranda helped Philip in his recovery; and he, in turn, assisted her with home duties and dealing with the loss of her husband of 50 years.
4. On 17 March 2016, Miranda made the 2016 Will. As the primary judge noted at [18]-[19], the 2016 Will did not contain an equivalent clause conferring on Philip a right to reside in the Marsfield property for four years. Philip's evidence was that his mother told him that "she had changed her mind about the four year clause". It was this difference between the two wills that formed the basis of Philip's proprietary estoppel claim.
5. In 2019, Miranda was diagnosed with pancreatic cancer. She passed away two months after the diagnosis.
6. Philip's evidence was that throughout the probate and administration of his mother's will, he was never informed by his solicitor, or Peter, about any prior will that was revoked or "any material information in regards to the future sale of the home". He believed, therefore, that a "fundamentally important fiduciary obligation was denied" which placed him "at a severe disadvantage in regards to future dealings with the home including rent". He further alleged that he was denied the opportunity to object to any change or to contest the 2016 Will.
7. Consistently with Peter's evidence, Philip's evidence was that after Miranda's death, he agreed with Peter that he would pay $400 a week in rent beginning in July 2020. They also agreed to constantly update this arrangement, depending on their own individual circumstances.
8. Additionally, however, Philip's evidence was that he and his brother had an agreement not to sell the home prior to "late 2021 to early 2022". The nature of the agreement, Philip said, could be discerned from text messages that he exchanged with his brother which he exhibited to his affidavit and marked "PP1". This exhibit was admitted without objection.
9. In early 2021, according to Philip, he and Peter met to discuss plans to sell the property. Philip's account of this meeting was that Peter said he was looking to move to Brisbane in 2023, to which he replied that this timeline suited him. Philip's case was that by this conversation, Peter had promised that he, Philip, could remain in the Marsfield property until 2023. Philip relied on this in support of his promissory estoppel claim, and (to a lesser extent) his claim in contract.
10. In supporting the timeline which he alleged he had agreed with Peter, Philip relied on subsequent text messages that he exchanged with his brother for the absence of any discussion about engaging real-estate agents or fixing the home for sale. Philip also pointed to text messages which showed he was working with his brother to fix damage to the Marsfield property arising from a demolition next door (in respect of which the brothers later sought compensation).
11. Philip claimed that on 23 September 2020, Peter informed him of his intention to sell the Marsfield property "by this time next year" (Peter says that the date he said that was actually 23 September 2021). Philip said it was the first he had heard of this idea and he firmly objected to it. The next day, Peter told Philip that he had organised a real-estate agent. The brothers had a heated argument which led to Philip temporarily breaking off contact with Peter. He described Peter's demeanour at that time as "increasingly threatening and aggressive".
12. When the brothers met again (Philip's evidence is that this meeting occurred on 30 September 2021; Peter does not specify the date), for the purpose of Philip paying overdue rent, Philip asked Peter about his willingness to sell the home in 2023. According to Philip, Peter said that he was unwilling to sell as late as 2023; and he denied that their mother intended to give Philip four years, saying that "she just said give him 12 months".
13. Parts of Philip's affidavit were treated as submissions rather than evidence. In paragraphs 20 to 24, Philip alleged that Peter exerted undue influence on Miranda to change her will. He said this was evidenced by Peter's conduct after her death, in bringing these proceedings (which posed a threat to "the life" that their mother "was attempting to preserve"). He set out the resolution he was seeking from the Court and noted the "shattering" effect that his mother's death had had on him. He reiterated that he relied on the Marsfield property as a kind of "hospital" in which to recover from his illness.
14. Finally, Philip gave evidence that he and Peter each received a substantial amount of money under the 2016 Will, apart from the Marsfield property, which Peter used to pay off his mortgage, buy a new car, and redo his home. Philip also referred to the rental income that Peter had received, in the order of about $20,000, which Philip said that he could keep.

Peter's second affidavit

1. In his second affidavit, Peter disavowed having anything to do with the preparation of his mother's last will, being the 2016 Will. Peter's evidence was that he found out about the 2015 Will on 30 September 2021, when he met with Philip to discuss the sale of the Marsfield property and the outstanding rent that Philip owed him.
2. Peter said that the only time he discussed his mother's will with her "was around 2 years before she passed". On that occasion, Miranda told him that the will was already prepared by her solicitor (who would be the executor). She also told him that her solicitor's phone number was on the fridge and he should be contacted "when the time comes". According to Peter, Miranda also told him that he and Philip would be "equal beneficiaries" in her estate. When Peter and Philip met with the solicitor in the days following their mother's death, they "agreed that it would be better to transfer the property into [their] own names first before selling in the near future".
3. According to Peter, on 23 February 2020, he discussed via text message with Philip increasing Philip's rent for the following year to match the market. However, the text messages from that date show that Peter merely said that "next year we'll probably have to discuss the rent again". In April 2020, Philip suggested selling the property within a reasonable period. Philip said that either they would get a decent price, or he would buy Peter out. On 13 August 2020, Peter contacted a real-estate agent for a valuation. On 21 December 2020, he was referred to a comparable sale in the area of $3 million.
4. According to Peter, on 18 February 2021 there was damage to the Marsfield property which led to a conversation in mid-March about its sale. Peter said that in the course of this conversation, he told Philip that he wanted to invest in rental properties in Brisbane. Philip said he was not ready to sell and "was thinking around the middle of 2022 to give [him] the opportunity to buy me [Peter] out". Peter replied that he could not wait that long but that they would "discuss again later".
5. In early April 2021, the brothers again discussed selling the home. At that time, Peter said he told Philip that the compensation process relating to the damage that had occurred in February was taking too long, but that they would see how it progressed.
6. On 24 September 2021, after meeting with a loss adjuster and realising that they would not receive the $250,000 in compensation that Philip hoped they would (Peter deposes that they subsequently received a Calderbank letter valuing their claim at roughly $14,000), Peter said that he suggested to Philip that they sell at the beginning of 2022. According to Peter, Philip replied: "No way I don't want to sell, and I need up until mid-2023 to buy you out". This led to an argument, in the course of which Peter stated his belief (explained further in paragraph 26 of his affidavit) that, because Philip was unemployed, a bank would not lend him $1 million dollars.
7. On 30 September 2021, Philip sent Peter a text message stating that he had no intention of paying the arrears of rent or any future rent. In response, Peter indicated that he would organise for a real-estate agent to value the property.

The proceedings

1. By his Summons, Peter sought an order that two solicitors be appointed trustees of the Marsfield property, and that the property be vested in those trustees "subject to any incumbrances affecting the entirety of the said property but free from incumbrances, if any, affecting any undivided share or shares therein to be held by the said trustees upon the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919".
2. The procedural history of the matter was as follows: 1. On 22 February 2022, the Registrar in the Online Court ordered Philip to file and serve all affidavits on which he relied by 17 March 2022. A directions hearing originally listed for 24 February 2022 was vacated. 2. On 24 March 2022, the Registrar in the Online Court listed the proceedings before the Real Property List Judge on 1 April 2022. A directions hearing originally listed for 24 March 2022 was vacated. 3. On 1 April 2022, Darke J ordered Philip to provide Peter with copies of all the annexures to his affidavit by 6 April 2022, and for Peter to file and serve any affidavit in reply by 12 April 2022. These orders were made by consent, a copy of which Philip electronically signed, along with Peter's legal representative. His Honour stood the matter over to 22 April 2022 for directions and, if appropriate, the allocation of a hearing date. 4. On 21 April 2022, Darke J set the matter down for hearing before Kunc J on 10 June 2022 (with an estimate of half a day) and made the usual order for hearing in accordance with the Real Property List's Practice Note SC Eq 12. The directions hearing listed for 22 April 2022 was vacated. Again, these orders were made by consent, based on dates nominated by the parties on which they were both available, and a copy was electronically signed by Philip.

Hearing before the primary judge

1. Philip appeared at the hearing on 10 June 2022 by audio-visual link. Mr Paterson appeared, in person, for Peter. The primary judge commenced the hearing by noting two things for Philip's benefit. First, Philip was asked to let the Court know if he had any difficulty hearing or following the proceedings. Secondly, the primary judge noted that the Court was limited in the kind of assistance it could offer him, namely, that his Honour's role was not to give legal advice about how he should conduct his defence.
2. His Honour indicated that he had read all the evidence, subject to the objections raised by Peter's legal representatives. Mr Paterson moved on the Summons and read the three affidavits to which I have earlier referred. The following exchange then occurred in respect of Peter's evidence: "HIS HONOUR: If you don't mind, as I have two Proiettis, Mr Philip Proietti, do you have any objections to any part of the evidence that the plaintiff proposes to read? I know it is difficult because you are not a lawyer. You are entitled, if you think there is a matter, something as a matter of the laws of evidence that the Court should not receive, you are entitled to make a submission that I should deal with that evidence. Is there anything that you want to object to in their evidence? DEFENDANT: The entirety of the evidence or just HIS HONOUR: Again, it is difficult. Object does not mean disagree with but there are legal principles that relate to what evidence the Court can receive, what is admissible and what is inadmissible and if there was anything that you thought was legally inadmissible as opposed to evidence that you did not agree with, you are entitled to draw that to my attention. You don't have to. DEFENDANT: The only point I have to make, I guess it is an objection, I am objecting to this entire situation of a section 66G because I don't feel as though the proper procedures were followed in the first place. HIS HONOUR: I understand that. I have read that in your submissions and I have seen it in your affidavit. You will be given an opportunity at the end of the evidence and after Mr Paterson has put his submissions, to make your submissions to me and what you have just said sounds like the sort of thing you should be telling me at the end of the case but it is not an objection to the evidence. Do you understand? DEFENDANT: Okay, I understand that."
3. The primary judge then took Philip to his own evidence, namely, his affidavit and its annexures, each of which Philip confirmed he was relying on and which, in addition to his written submissions, constituted the entirety of the material that he was presenting to the Court. The following exchange then occurred: "HIS HONOUR: Thank you. Now, I have had some objections notified to your affidavit and so I have to deal with those. If there is anything you wish to say in relation to those objections as we go through them you are, of course, entitled to do so. I take it you are still pressing the objections? PATERSON: Yes, your Honour. Often when one has a litigant in person who does not understand the laws, I am content for your Honour to receive this material where your Honour upholds an objection as to his subjective understanding and submission rather than completely ruling it out. HIS HONOUR: I understand that. It is a matter for you. PATERSON: I do press the objections, your Honour."
4. His Honour then worked through each of Peter's objections. Philip intervened several times early in this process to submit that the objected-to material was necessary "to give a background of the story" as, otherwise, he did not have a case. For example, he argued in favour of the relevance of paragraph 9, in which he deposed, amongst other things, that Miranda's intention was "to try to avoid any future issues in regards to the sale of the home". The primary judge explained, however, that what Philip thought was his mother's intention was not legally relevant. Philip also submitted that the 2015 Will, which was not objected to, was not enough to prevent the proceedings from being "lopsided" and that he was being precluded from putting into evidence "basic background that points to circumstantial evidence" that he would be relying on, which he said was "unfair".
5. The primary judge ruled on the objections to the balance of the affidavit without any further intervention from Philip. Peter was then called for cross-examination.
6. In answer to questions from Philip, Peter denied that he had any knowledge of the 2015 Will. He also said that he never had any discussion with Miranda about the 2015 Will because he "never knew it existed". Peter's evidence was that the first time he became aware of the 2015 Will was when he and Philip met up in September 2021 to discuss rent. In response to later questioning from Philip, Peter said that all that Miranda told him about her will was that there was one and that they were to contact her solicitor about it; that he and Philip were equal beneficiaries; and that if a problem arose to "give [Philip] 12 months".
7. Peter also denied that he and Philip had reached an agreement, in or about March 2021, that they would sell the home in 2023. Peter agreed with Philip that they had a discussion in which he mentioned moving to Brisbane with his family, but he said the only agreement they had was in relation to Philip paying an amount by way of rent. Peter also agreed that when he told Philip that he wanted to sell the house, Philip had said to him that he needed more time. However, Peter maintained that while they had discussions about the timing of that sale, the brothers had reached no agreement as to that timing. The primary judge sought to clarify Peter's evidence in this regard as follows: "Q. But is your evidence because I don't think this is in your affidavit, and I just want to be clear I understand what you say happened. Is your evidence that the first time your brother suggested to you there was an agreement that he could stay in the house until 2023, the first time he raised that with you was in September of 2021? A. No, he had we had had discussions where he'd mentioned this. It was originally 2022, and then it became 2023. Yes, we had had discussions but there was certainly never agreement. And then when we had that argument [in September 2021] he said, 'No, you can't do this. We had an agreement on that.' Q. And what did you say to him? A. I said, 'Well, no, that's not that's not correct, and I'm you know, if we can't sort this out I'll have to pursue legal you know, a legal course."
8. In terms of the parties' submissions, his Honour noted at [10] that he "indicated to the parties at the outset that but for the matters raised by Philip, this was a clear case for relief under s 66G". In those circumstances, his Honour continued, "after some brief opening submissions by Mr Paterson, at the conclusion of the evidence the case proceeded on the basis that the Court first heard from Philip as to why he submitted no orders should be made, followed by Mr Paterson's submissions on behalf of Peter in response". Philip was given a brief right of reply.
9. As Philip is critical of what his Honour said about the nature of the case at the close of evidence and before submissions, it is important to set out what his Honour said: "Mr Paterson, it's a matter for you, but it seems to be the most efficient course - but for the defences that have been raised, this seems to me to be a perfectly unremarkable, without being disrespectful to anybody, case for the making of s 66G orders. So I think the onus is really on the defendant. And unless you particularly want to say anything, as it were, in chief, I think it would be more efficient if we heard from the defendant and then you responded."
10. In response to the suggested course, Mr Paterson, on behalf of Peter, made three points, so as not to take Philip by surprise when he made submissions in response. The first point related to Philip's argument based on the existence of a contract, and related to Philip's contention that he did not have a legal obligation to pay rent. Mr Paterson's second point, in response to a query from his Honour, was that he did not press a submission he had made, in writing, that there was an agreement between Peter and Philip that Philip could stay in the home until early 2022 - that submission being contrary to the oral evidence of Peter, his client, that there was never any agreement about how long Philip could remain in the home. The third point related to Philip's estoppel argument, and was to the effect that there was no evidence of acts of reliance or detriment.
11. His Honour took these points up with Philip in the following way: "HIS HONOUR: […] So the point, just so you can follow, sir, that has been made by Mr Paterson is: he accepts it was his mistake in reading his client's evidence to suggest that there was an agreement about early 2021, early 2022, rather. So the case that is being made is that there was only ever an agreement about rent, but there was no agreement about when or how long you could stay in the property. Or alternatively, as I understand what's being put, it will be said that even if there was something, it was not intended to be binding. PATERSON: Yes. DEFENDANT: Yeah, can I make a statement about that? HIS HONOUR: Well, it's now your turn what we're going to do is, just to be clear so you can follow what's happening. If you had not put up any sort of defence, this is the kind of case where the court would make an order under s 66G. So the burden really falls on you to persuade me why I should not make an order under s 66G, and this relates to the points that you've raised in your submissions. So this is now the time for you to tell me everything you want to tell me as to why you say I should not make an order under s 66G. Do you understand, sir? DEFENDANT: I understand."
12. Consistently with his written submissions, Philip raised three matters with his Honour: proprietary estoppel, promissory estoppel, and contract. Given that Philip effectively reagitates the arguments he made to the primary judge in this Court, I have summarised them below in the context of his submissions on appeal.
13. At the conclusion of the submissions, the primary judge reserved his judgment and indicated to the parties that it would be published "in the next few weeks hopefully". Although JusticeLink records an order made on 10 June 2022 that the judgment was published electronically the same day, the date recorded on the coversheet, 30 June 2022, appears to be correct. The material date is relevant not only to Philip having brought a timely appeal but is also relevant to a fear which Philip expressed during the course of the hearing, namely, that the primary judge would make a "split second decision".

The decision of the primary judge

1. His Honour's judgment commenced with the statement that orders under s 66G of the Conveyancing Act "will generally be made unless the defendant can demonstrate some extant legal or equitable right that is inconsistent with that relief being granted, or which cannot be accommodated by the terms on which any orders are made": [4].
2. His Honour described Peter's decision not to object to any of Philip's affidavit evidence as a forensic one, which meant that the Court should accept so much of that evidence as was admitted into evidence: [7]. His Honour noted that other matters were incontrovertibly established in text message exchanges between the brothers, while Peter had also made some limited concessions in cross-examination: [7].
3. In relation to the 2015 Will, his Honour stated that "[s]trictly speaking" he was not persuaded on the balance of probabilities that the 2015 Will was executed. Nonetheless, his Honour assumed, in Philip's favour, that the 2015 Will was in fact executed: [14]-[15]. His Honour accepted that the 2016 Will did not contain an equivalent clause to the 2015 Will in relation to conferring on Philip the right to reside in the family home for four years: [19].
4. The primary judge was satisfied that by 23 February 2020, there was an agreement in place whereby Philip would pay Peter $400 per week in rent from 1 July 2020 - his Honour referred to this as the Occupation Agreement: [22]-[23]. His Honour considered that part of a lengthy text message exchange between the brothers on 12 April 2020 supported Peter's contention that when the property was ultimately to be sold was still unresolved, whilst also noting that Philip relied on the same exchange to support his contention that by these proceedings Peter was resiling from earlier promises: [26]. After this dispute was overcome, Philip commenced paying rent on 1 July 2020, up to and including 28 July 2021: [27]. However, he was in arrears after that point, and on 24 September 2021 the brothers had a serious argument: [30]. This led to various exchanges between the parties which were unable to resolve matters.
5. His Honour found that Peter never knew about the 2015 Will. His Honour described Peter's evidence as consistent, and his explanation for not inquiring about it (his mother being in good health and believing it of no concern while she was alive) as plausible: [40]. His Honour described Philip's reasons to the contrary as "not persuasive": [41]. In so far as Philip relied on the text messages not making mention of any will, his Honour stated at [42]: "This electronic silence between the brothers on this issue is relevant in one of two ways. Primarily, it is neutral and proves nothing. However, if that be wrong, it is more consistent with a conclusion that Peter genuinely knew nothing of the contents of the 2015 Will. Neither conclusion assists Philip's case."
6. His Honour further found that even if Peter knew about the 2015 Will, it did not follow that he knew about or had any involvement in its alteration: [42]. His Honour accepted in this regard that there was no evidence that Peter had exercised undue influence or duress on their mother to persuade her to make any change between the 2015 Will and the 2016 Will: [43].
7. In so far as Philip contended that Peter had represented, or they had agreed, in early 2021, that there would be no sale of the property until 2023, his Honour was not satisfied that any such agreement was reached in March 2021: [51]. His Honour noted that the text messages were "once again silent about any such arrangement", which was not of assistance to Philip's case and, if anything, was more consistent with Peter's case that no agreement had been reached. His Honour continued at [52]: "Apart from what may be made of the text messages, the Court is left in the position of having only the word of each brother against the other. In such a case, where no independent evidence can be relied upon to distinguish one version of events from another, the question becomes one of onus. It is Philip who bears the onus as the party asserting the estoppel: Sidhu v Van Dyke (2014) 251 CLR 505 at 523 (French CJ, Kiefel, Bell and Keane JJ) and 531 (Gageler J); [2014] HCA 19. He has failed to discharge that onus such that the Court cannot be actually satisfied on the balance of probabilities that there was any agreement to the effect that Peter asserts."
8. In dismissing Philip's reliance on proprietary estoppel, the primary judge set out at [57] what he understood Philip's case to be: 1. Peter had a duty to tell Philip what was in the wills, and to tell Philip when the 2015 Will was changed. 2. Peter's silence created an assumption on Philip's part "that Peter would not behave 'aggressively' with respect to the sale of the property", which his Honour took to mean that Peter would not oppose Philip's desire to remain in the property. 3. Peter's failure to tell Philip caused Philip a detriment: "first, it deprived him of the opportunity to persuade his mother to retain the clause that purported to give him a right to reside; and second, it deprived him of the opportunity to challenge the grant of probate of the 2016 Will".
9. As to the first element, the primary judge concluded that by reason of his finding that Peter never knew of the alleged clause in the 2015 Will nor its change, "no duty could arise requiring Peter to inform Philip of the change in circumstances": [60]. Further, even if Peter had known, "no facts have been proven that would have given rise to a duty in Peter to say anything to Philip": [61]. As his Honour observed by reference to the language of Brennan J in Waltons Stores (Interstate) Ltd v Maher and Anor (1988) 164 CLR 387 at 542; [1988] HCA 7, there was "no evidence that Peter knew or intended that Philip should conduct his affairs on any assumption or expectation of the kind alleged by Philip". Further, Miranda had already told Philip of the change, meaning that "Peter's alleged silence would not have caused him any detriment"; and Philip had failed to take the opportunity to raise the change with her and persuade her to reinsert the clause. Philip had not demonstrated any basis on which equity would hold Peter responsible for that failure, or for his failure to challenge probate: [62].
10. As to Philip's promissory estoppel claim, his Honour summarised Philip's submissions as contending, first, that there was an alleged verbal agreement between him and Peter, made on 18 March 2021, that they would not sell the Marsfield property until 2023; second, that Philip acted in reliance on this by not taking steps to obtain finance to purchase the property; and third, that he had suffered a detriment because he now had less time to obtain the finance: [64]. Philip also relied on the absence of text messages about when to sell the property, which he claimed supported his argument that they had already agreed on 2023 as the time to sell: [66].
11. His Honour's finding that Peter had not made any representation to Philip that he would not sell the property until 2023 was fatal to this claim. The silence in their text messages was consistent with the conclusion that there were ongoing discussions but no actual agreement and, in any event, did not positively assist Philip. It followed that "there was nothing that Philip could be said to have reasonably relied upon, or that a failure to take steps to obtain finance before now is as a result of that reliance: [72].
12. In terms of the claim in contract, his Honour was not entirely clear as to how this claim was put, with Philip having placed far greater emphasis on his estoppel claims: [73]. However, he understood from the submissions that Philip was of the view that "there was some kind of agreement under which he would receive security of housing at the Property in exchange for the payment of rent to Peter": [73]. His Honour concluded at [75]: "The evidence does not support the existence of any exchange sufficient to establish a contract between Philip and Peter, even assuming that as a family arrangement between brothers an intention to be legally bound could be inferred. The agreement alleged by Philip was entirely uncertain. The evidence does not support a finding of consensus ad idem between the brothers on essential matters such as how long Philip could reside in the Property and on what terms such as payment of rent, insurance and outgoings. By Philip's own admission […] the payment of rent was only something he considered 'implicit'."
13. The primary judge concluded that as none of Philip's arguments were successful, orders should be made under s 66G of the Conveyancing Act: [76].

Notice of Appeal

1. Philip's Notice of Appeal is drafted in a narrative form, but it raises grounds which are comprehensible and discrete. The grounds are arranged under the following headings: 1. "Judicial Process"; 2. "Affidavit"; 3. "Bias Judge"; 4. "Errors of Law"; 5. "Further Evidence"; and 6. "Non-Compliance Dismissal".
2. Philip filed written submissions in support of the grounds. He supplemented the written submissions with lengthy oral submissions before this Court which involved some repetition. Philip summarised the key errors that he alleged the primary judge had made in his written submissions as follows: "[…] a lack of proper judicial process and the numerous examples of judge bias and errors of law that have conspired to thwart my two estoppels and a contractual obligation as a defence to Section 66g orders".
3. I will proceed on the basis that by Grounds 1 and 2, Philip contends that the primary judge denied him procedural fairness, including by rejecting evidence that should have been admitted (Ground 2). His claim of bias in Ground 3 arises from the way the hearing was conducted and from the primary judge's findings as expressed in the judgment. In the course of the hearing, Philip indicated that his bias ground involved allegations of actual bias and apprehended bias.
4. Ground 4 challenges the primary judge's conclusion with respect to Philip's defences, largely by challenging his Honour's conclusion that Peter's account was credible. Ground 5 is, in effect, an application for this Court to receive further evidence under rule 51.51 of the Uniform Civil Procedure Act 2005 (NSW) ("UCPR") in the event that the appeal is allowed. Ground 6 seeks the dismissal of Peter's Summons and the setting aside of the costs order.
5. An intermediate appellate court dealing with allegations of apprehended bias should generally address the issue of bias first, as the necessary result, if bias is established, is a retrial: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3]; [117]. However, given the overlap of Ground 3 with the other grounds (in particular, Grounds 1, 2, and 4), it is convenient to address the grounds in the order I have identified them above.

Ground 1: Denial of procedural fairness

1. Philip submitted that without directions hearings, pleadings, or a mediation, he was not given the opportunity to argue his case properly and was at a "severe disadvantage" in presenting his defences.
2. Philip submitted that directions hearings were essential to the parties being able to "accurately gauge the true nature of the case" and that, because he received no "substantive guidance" from the Court, he was taken by surprise at the hearing, and critical elements required to argue his case were denied. Although he accepted in his written submissions that he agreed to the vacation of the initial directions hearing, he did not realise that this would prejudice his case and that he should not have to bear the consequential unfairness that occurred. As to this and other directions hearings, Philip relied on two provisions of the Civil Procedure Act 2005 (NSW), ss 57(1) and 62(4), which provide for the "just" determination of the proceedings and refer to each party's entitlement to a fair hearing, including that parties must be given a reasonable opportunity to lead evidence, make submissions, and present a case.
3. Philip submitted that the lack of directions led to no pleadings being undertaken; and it was "absolutely essential" for pleadings, to define the issues. The absence of pleadings made the task of preparing his affidavit more difficult; and it ultimately meant that the case he was presenting "lacked the establishment of what the issues were and how the evidence and facts supported [his] argument". Philip also complained that there was no formal request for him to file written submissions. Although he prepared written submissions, Philip said that he did not prepare those submissions "to the extent that [he] would have" if he was aware of "how unprepared [his] case was".
4. The lack of pre-trial steps, in his submission, led to additional problems with his affidavit and the final hearing, including that he and the primary judge were "unprepared". In oral submissions, Philip summarised his impression of what occurred during the hearing as follows: "I was spending most of the day trying to explain things to [the primary judge], get my case across, and in the end those central issues which weren't defined weren't really developed properly, so that was a major procedural irregularity in the case and unfairly compromised my case. Then that led to the affidavits which in the end were struck out in the last minute, and unfairly."
5. Philip contended that, if the primary judge required extra clarification as to the key issues he sought to raise, "there should have been another hearing". I understood this submission to allege that his Honour erred by not adjourning the proceedings, under s 66 of the Civil Procedure Act or the Court's incidental power, so as to afford Philip an opportunity to provide further evidence and/or submissions.
6. In relation to the hearing, and overlapping with Ground 3, Philip submitted that he made the point below that the primary judge was about to make a hasty or pre-determined decision which would be unfair to his case. Despite his Honour's assurance that his decision would be the subject of careful deliberation, Philip submitted that this did not occur. He further submitted that, contrary to his Honour's judgment, the case should have continued to be heard in respect of "unresolved issues" (such as Peter's knowledge of the 2015 Will and his role in changing it), with further evidence "garnered and produced". Philip also argued that he was "unfairly stopped on numerous occasions" from exploring issues in cross-examination.
7. Philip also submitted that a mediation could have resolved the proceedings early on. Alternatively, mediation could have clarified the issues with respect to case management. However, he alleged, Peter did not want the facts or the arguments to "come out" at a mediation.
8. Peter's submissions in respect of Philip's claim that he was denied procedural fairness can be summarised as follows: 1. Philip had an obligation to inform himself in relation to the court rules and that he is bound by how he conducted the hearing below. 2. Contrary to Philip's complaint that there were no directions hearings, directions hearings were conducted in the Online Court in accordance with Practice Note SC Eq 1 at [11] and Practice Note SC EQ 14. 3. The proceedings were required to be commenced by summons and, in any event, pleadings would not have added much having regard to the nature of the proceedings. 4. What happened in mediation, and the steps leading up to it, would have been privileged: Civil Procedure Act, s 30. In any event, Philip could have attempted to settle the proceedings, up to and including while judgment was reserved.

Consideration

1. On my review of the procedural history of the matter, I do not consider that Philip was denied procedural fairness in any of the respects that he has identified. As to Philip's first complaint, regarding the absence of pleadings, it is important to appreciate that not only did the respondent's application not require pleadings, the respondent in fact was required to commence the proceedings by summons: see UCPR rule 6.4(1)(i). A requirement for pleadings would involve a departure from the ordinary rules in a case of this nature. The party seeking the pleadings would need to apply for them and support their necessity, including by reference to the efficiencies pleadings would achieve in the particular case, bearing in mind the overriding purpose of the Civil Procedure Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56(1).
2. Having regard to the procedural framework in which the proceedings were commenced, the difficulty with a complaint about the absence of pleadings is that Philip does not appear to have raised this issue, at least not before the hearing of this appeal. It may be for this reason that Philip also impugns the conduct of the directions hearings, by which, he says, he was denied what he describes as "substantive guidance". In DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 at [99], White JA held that "the obligation to inform a self-represented litigant about matters of practice and procedure, so far as is reasonably practicable, for the purpose of ensuring a fair trial, is an obligation of the Court, not only of the individual judge hearing the proceedings". However, as Beazley JA recognised in Hamod v New South Wales [2011] NSWCA 375 at [312] (Giles and Whealy JJA agreeing), "it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant".
3. If Philip's complaint that he was not given substantive guidance in directions hearings is a call for judicial advice, the Court could not give him that advice, nor could the Court conduct his case on his behalf. If Philip's complaint is more limited to matters of practice and procedure, paragraph 5 of Practice Note SC EQ 14 requires legal practitioners and self-represented litigants to register to access the Online Court. Paragraph 8 provides that all matters in the Equity General Registrar's List, in which the primary proceedings were originally filed, are automatically entered into the Online Court and are to be managed through the Online Court unless the Court otherwise orders. Requests made in the Online Court, "including, but not limited to, timetables for the preparation of the matter for trial, referral to mediation, adjournment, referral to the List Judge, and scheduling a listing date", are to be made in the Online Court in accordance with the timeframes specified in the Practice Note.
4. In the course of the hearing in this Court, Philip accepted that he received the orders made through the Online Court, and that he consented to them being made. Although he alleged that "there was some type of threat" involved in this process, he did not specify the nature of that threat or otherwise provide any evidence to support a threat being made. In circumstances where Philip consented to the directions that were made, that he now considers he was ill-advised to do so is not a matter that gives rise to procedural unfairness on the part of the court. A self-represented litigant is "subject to the practice and procedure of the court as much as any other litigant": Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [71] per Buss P, Murphy and Vaughan JJA.
5. As to Philip's complaint that an order for the provision of written submissions was not made, the Usual Order for Hearing in Annexure A of the Real Property List's Practice Note No SC Eq 12 provides for an Outline of Submissions to be filed with the Court Book four days prior to the hearing. Philip provided written submissions to the primary judge, which his Honour noted that he had reviewed in advance of the hearing, and Philip was able to supplement those submissions orally. Having been aware of Peter's evidence for some time (albeit subject to his cross-examination), Philip had a fair opportunity to address it as best he could in writing and orally. That opportunity is also relevant to his contention that a "further hearing" was required in which Philip could clarify key issues.
6. In relation to Philip's complaint about there being no mediation, s 26 of the Civil Procedure Act provides that, if it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned: see Practice Note SC Gen 6 at [5]. Section 26 is not mandatory, and is conditional on the Court forming the view that the circumstances of the case are appropriate. Its application must be considered alongside complementary provisions of the Act including ss 56 to 61 (as to which self-represented litigants are required to make themselves aware: Practice Note SC Eq 1 at [6]). Section 59 relevantly provides that: "In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial."
7. The absence of a mediation did not give rise to procedural unfairness. As the primary judge noted to Philip in the course of his submissions during the hearing, Philip was not precluded from speaking to Peter; indeed, his Honour encouraged them to keep talking.

Ground 2: Philip's affidavit

1. In paragraph 4(i) of his Notice of Appeal, Philip submitted that: 1. he was not given an opportunity to object to Peter's affidavit on the day of the hearing; and 2. Peter waited until the last minute to object to Philip's affidavit and he was not given a fair opportunity to address the issues raised.
2. In his written submissions, Philip contended that there was a "fine line between what is evidential and argumentative, especially when the facts are of an intangible nature". He submitted that his Honour erred by striking out large parts of his affidavit on the basis of speculations, purported states of mind, relevance, and submissions. The nature of the case, involving the "mistaken belief" that he formed, required him to give "retrospective viewpoints" that he had deduced (for example, the realisation that Peter was responsible for changing their mother's will). He submitted that the nature and complexity of the case required those matters to be admissible, which I understand to amount to a submission that those matters were admissible and that his Honour erred in rejecting them. In the course of the hearing, Philip referred in support of the admissibility of the evidence that was rejected to various provisions of the Evidence Act 1995 (NSW), including s 55, s 59 and s 60, and s 77.
3. Peter submitted that Philip had ample notice of the objections that Peter made to his evidence, and an opportunity to respond, but he did not take that opportunity. As to how the primary judge dealt with the objections, Peter submitted that it was not unusual for the argument and rulings on objections to be brief, citing Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 279. Peter submitted that Philip had not identified any alleged error in respect of the rulings but, instead, detailed his understanding of the importance of the various rejected paragraphs of his affidavit. Peter further submitted that Philip effectively acknowledged that his affidavit involved making submissions, including by reference to "the deductive process" that he had to go through to arrive at his conclusions.

Consideration

1. Philip's complaint that Peter waited until the last minute to object to his affidavit, and that he was not given a fair opportunity to address the issues raised in the proceedings, is not supported by the provision of the Court Book to Philip in advance of the hearing, which contained Peter's objections to Philip's evidence. Philip acknowledged at the hearing before the primary judge that he received a copy of the Court Book; and he has not challenged Peter's claims in respect of the service of the objections therein.
2. More significantly, and in any event, Philip has now had the opportunity, in the context of this appeal, to consider his Honour's rulings and to make submissions as to why the evidence his Honour rejected should have been admitted. Although Philip sought to describe his case as circumstantial, it was, in truth, a case which rested on hindsight speculation as to what motivated his mother to change her previously communicated position, that she would provide for him to stay in the Marsfield property for four years after her death. The parts of the affidavit in which Philip sought to engage in that speculation, including as to what was in his mother's mind, were properly rejected, while parts of the affidavit in which he sought to explain the conclusions he had drawn from events were properly treated as submissions rather than evidence.
3. In so far as Philip sought to bring some of the evidence within ss 59 and 60 of the Evidence Act, the evidence that he included in his affidavit about what his mother's solicitor had told him was hearsay. Although Philip sought to contend otherwise, the solicitor's statement to Philip that he was not responsible for changing the 2015 Will was hearsay. The fact that Philip sought to prove for the purpose of s 59(1) was that the solicitor did not change the will. He sought to prove that by relying on an out-of-court representation that the solicitor made to that effect. In circumstances where it can be reasonably supposed that the solicitor intended to assert by that representation that he (the solicitor) did not change the will, the representation was obviously hearsay, for which there was no applicable exception. Further, in so far as Philip sought to rely on the opinion rule in s 79 of the Evidence Act, I accept the submission made by Peter's counsel, that the statement on which he relied would not provide proof of the fact that Philip sought to establish. At the most, it would be evidence of Philip's belief as to that fact.

Ground 3: Bias

1. The bias ground was articulated in Philip's written submissions as follows: "I believe there to be a consistent line of bias throughout the verdict given on 30 June 2022 by Judge Kunc [sic] as well as the hearing in addition to numerous error of law which have been relied upon for the decision In his verdict the judge finds against my primary defence of a proprietary and promissory estoppel, to not grant orders under Section 66g for the sale of the property."
2. Philip submitted that "bias permeated right throughout the proceedings". Overlapping with the procedural fairness ground, he complained that he was never given a chance to file pleadings, and that all his evidence was struck out with no chance to put on further evidence. Philip complained that his case was prejudged from the outset, relying on the primary judge's description of the case as "unremarkable"; and that he was prevented from fairly cross-examining Peter about the supposed verbal agreement not to sell the property before 2023.
3. At the hearing of the appeal this Court sought to clarify whether Ground 3 involved a complaint of actual or apprehended bias. Philip responded that he was unsure of the difference, but that he "would go either way" based on his perception of bias from the start of the hearing before the primary judge. Ultimately, he alleged both. It became apparent from Philip's submissions in the course of the hearing that his principal reason for alleging bias was that the primary judge's findings went against him on "nearly every single issue".
4. In response, Peter extracted in his written submissions passages from the transcript of the hearing below, where the primary judge provided Philip with the opportunity to make an application if he felt there had been any unfairness about the process, namely, because he was not a solicitor. Peter characterised Philip's complaint as, alternatively, being about "the fact that his arguments were not accepted". In Peter's submission, the primary judge meticulously considered the evidence and arguments of both parties and explained his reasoning on the merits.

Consideration

1. In Zhang v Metcalf; Metcalf v Zhang [2020] NSWCA 228 ("Zhang"), Gleeson JA, with whom Payne JA and White JA agreed, summarised the principles regarding actual bias as follows at [31]: "The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33] (Michael Wilson). It is necessary for [the appellant] to establish that the primary judge was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented': Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [72] (Gleeson CJ and Gummow J), [176] (Hayne J). As Gleeson CJ and Gummow J observed in Jia Legeng at [71]: The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." A finding of actual bias is a grave matter, which is not to be lightly made and for which cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
2. The materials before this Court do not support Philip's contention that the primary judge was committed to a conclusion from which his Honour could not be moved. Although Philip emphasised that his Honour described the case as an "unremarkable" one for the making of s 66G orders, that description must be read with the preceding words, "but for the defences that have been raised", and with the primary judge emphasising that he did not intend any disrespect in so describing the case. As counsel for Peter pointed out, his Honour also said to Philip, along the same lines, that "if [he] had not put up any sort of defence, this is the kind of case where the court would make an order".
3. Having carefully reviewed the whole of the transcript of the hearing before the primary judge, I do not consider that this or any other passage indicates that his Honour approached the evaluation of Philip's evidence or his submissions with a committed conclusion that was incapable of alteration. To the contrary, the transcript shows that his Honour sought to engage with Philip about his defences, to understand how Philip put his case and to raise issues with Philip about his case, for his consideration and response.
4. As to apprehended bias, the question is whether a fair-minded lay person, with knowledge of the matters on which Philip relied, might reasonably consider that the decision-maker might not carry out his or her functions with an impartial and unprejudiced mind: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. In Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [21], Kiefel, Bell, Keane, and Nettle JJ explained that the test has two steps: "The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits." In Zhang at [37], Gleeson JA summarised the test as requiring "an objective assessment between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues that are to be decided".
5. In his written and oral submissions, Philip failed to identify anything that might have led the primary judge to decide the matter other than on its legal and factual merits. The fact that the primary judge did not accept his arguments does not give rise to an apprehension of bias. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 at [67], Gummow ACJ, Hayne, Crennan and Bell JJ described as "fallacious" an argument that "because one side lost the litigation the judge was biased" (emphasis in original). Further, their Honours observed that "[t]o ask whether the reasons for judgment delivered after trial of an action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry". See also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [68], [71] per Nettle and Gordon JJ, cf [20] per Kiefel CJ and Gageler J, [135] per Edelman J; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; [2022] FCAFC 41 at [90].

Ground 4: Errors of law

1. Turning to the alleged errors of law, Philip submitted that the central issue was Peter's knowledge of the 2015 Will, which would have allowed him four years of occupancy. He challenged Peter's lack of credibility and consistency on multiple issues.
2. In relation to his proprietary estoppel argument, with some qualification Philip accepted the primary judge's summary of his claim in [57] as involving the following elements: "(1) Peter had a duty to tell Philip what was in the wills (it was not apparent if this was the 2015 Will or the 2016 Will or both) and also a duty to tell Philip when the 2015 Will was changed. (2) Peter's silence had created an assumption by Philip that Peter would not behave 'aggressively' with respect to the sale of the Property. This was taken to mean that Peter would not oppose Philip's desire to remain at the Property. As stated by Philip during the course of argument (Tcpt, 10 June 2022, p 92(30-33): 'It is quite clear that [Peter] pretended to be on my side neutral, but in reality he is aggressive. That's the whole point.' (3) The failure by Peter to tell Philip caused the latter a detriment because: first, it deprived him of the opportunity to persuade his mother to retain the clause that purported to give him a right to reside; and second, it deprived him of the opportunity to challenge the grant of probate of the 2016 Will."
3. The qualification Philip made to this summary related to the first element. As to that element, Philip submitted that Peter's duty was to tell him that he was aware of the clause (in the 2015 Will which conferred on him the right to reside in the Marsfield property for four years) and that he (that is, Peter) was the reason for the change between the 2015 Will and the 2016 Will. He submitted that the primary judge had missed this point.
4. Philip contended that in failing to tell him about his role in changing the 2015 Will, Peter had been deceitful. He argued that it was inconceivable that his mother would have had a solicitor draft a will and not tell one of the beneficiaries about "such an extraordinary stipulation". He claimed that Peter must have known of the change given the letter on the fridge with the number of their mother's solicitor, the frequency with which Peter kept in contact with their mother, and that it was implausible that their mother would not tell Peter about such an extraordinary clause.
5. Philp submitted that his Honour's finding that Peter did not enquire about the will was also not plausible. He submitted that the text messages showed that Peter had a "legal frame of mind" and "legal awareness" which contrasted with the finding that Peter was disinterested while their mother was alive. He submitted that the messages also showed that Peter had "a tendency to be legally aggressive out of nowhere". I understood this to be a submission that Peter's seeking orders under s 66G, and sending the correspondence which led to his applying to the Court for those orders, was evidence of Peter having applied improper pressure to their mother to change her will while she was alive.
6. Philip essentially argued that the compelling, indeed the only, reason why Miranda changed her will was that she wanted to avoid a "family rift". In advancing this submission, he relied on evidence in his affidavit about how hard his mother worked, which the primary judge had rejected. Philip pointed to his mother's "vulnerable state" as leading to a conclusion of undue influence but, again, there was no evidence to support this conclusion. There was also no evidence to support an additional allegation he made in submissions in this Court, based on his mother telling him that Peter was not contacting her anymore, that his brother may have threatened "to remove contact with his family and grandchildren". Relying on the text messages, Philip submitted that he relied, to his detriment, upon Peter's "silent representation" in not challenging the grant of probate. Given that Peter was responsible for changing the will, Philip submitted that Peter's attempt to assert his right under s 66G is contrary to his prior conduct and behaviour given that the 2015 Will would have "protected" him from that provision: "When you conclude that [Peter] was told [about the change to the will], on the balance of probabilities that he was told, then the proprietary estoppel that I'm arguing just all falls into place. All the other elements to it, like him being responsible, the duty that he has to me to tell me about the circumstances of it and what's happened, and my reliance on it and the detriment suffered to me, all fall into place."
7. In relation to his promissory estoppel claim, Philip again relied upon the silence in the text messages as being indicative of an agreement for a 2023 sale, the lack of evidence about his and Peter's intention to sell the property before 2023 being evidence of the absence of that intention. Philip submitted that the text messages should have precluded a finding that Peter's version of events was credible. If there was a discussion about a sale in early 2022, Philip said that it should be found in those messages, but there was no discussion about relevant matters: real-estate agents, fixing the home for sale, or anything relating to an imminent sale. Accordingly, the only inference, in his submission, was that there was an agreement to sell the property in 2023.
8. In relation to the contractual claim, Philip submitted that Peter seeking orders under s 66G was contrary to their agreement that he would pay rent and, implicit in this agreement, that they would consider each other's life situations before deciding to sell.
9. By way of response to the proprietary estoppel argument, Peter submitted that there was no objective evidence that he had any knowledge of the 2015 Will. The highest Philip's case went was "circumstantial evidence", which the primary judge considered. Further, Peter submitted that even if he knew of the 2015 Will, it did not change the fact that Philip clearly knew of the relevant change, and he was not precluded from seeking to have Miranda change her will again. Peter maintained his rejection under cross-examination that there was any agreement not to sell the property before 2023, noting that Philip did not lead any admissible evidence of such an agreement. Peter also submitted that the text messages were inconsistent with any binding obligation. He relied, for example, on a message exchange from 29 September 2021, in which Philip stated that he would not pay rent anymore because he had "no legal obligation to do so".

Consideration

1. The impugned finding that was central to Philip's proprietary estoppel claim was a question of fact, based on a credibility finding. In cross-examination, Peter unequivocally denied that he knew anything about the 2015 Will at any time before Miranda died. His Honour considered that Peter's evidence on the point was consistent and accompanied by a plausible explanation as to why he never asked about his mother's will: [40]. Philip's submission that Peter not only knew about the 2015 Will, but was responsible for removing from the 2016 Will the clause benefiting Philip, entails speculation and conjecture in the face of Peter's direct and consistent denial of knowledge. In accepting Peter's evidence in this regard, the primary judge had the advantage of seeing Peter give the evidence and forming an impression of him. Philip's submissions do not demonstrate a glaring improbability as to Peter's account, or compelling inferences to the contrary, such as would enable this court to reach a different conclusion to that reached by the primary judge: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. In fact there was no sound foundation for the challenge to the judge's finding as to Peter's credibility.
2. Further, and in any event, Philip's claim that he relied to his detriment on Peter's failure to tell him about the change from the 2015 Will cannot be sustained in the face of his evidence that he had been told, before his mother died, that she had changed her will. When asked why Peter (at least on Philip's case) had a duty to tell him what he already knew, Philip submitted: "Because I wasn't aware of the circumstances at the time, and he was aware of that. Mum told me that it was because of [her solicitor]. So I assumed that the will wasn't put in effect in the first place. I assumed from that that Peter wasn't responsible."
3. As the primary judge found, there was nothing to suggest that Philip's mother would have acquiesced in changing the will back because, as his Honour accepted, "it is entirely possible that she removed the clause of her own volition and for her own reasons": at [63]. Philip's subsequent "realisation" amounted to no more than speculation on his part about his mother's intention; his affidavit evidence in this regard was properly rejected by the primary judge on the basis that Philip could not give evidence of what might have been in his mother's mind at any given time. Philip's deduction, on learning of a subsequent will, that Peter was responsible was also not evidence. The challenge must be rejected.
4. In relation to Philip's promissory estoppel claim, I have set out at [60] above the primary judge's conclusion. Again, there was no legal error. In circumstances where his Honour had competing evidence about the existence of an agreement in the terms Philip alleged, and the text messages were at best neutral, in his Honour's view, Philip had not discharged his onus. Although Philip sought to argue to the contrary, the absence of text messages regarding sale of the Marsfield property does not constitute positive support for Philip's his claim that his brother had promised that he could remain in the property until 2023. The evidence, including the text messages, does not disclose any error in his Honour's conclusion. The claim in contract, which was also based on Peter having made a representation that Philip could live in the home in Marsfield until 2023, failed for the same reason before the primary judge and also fails in this Court.

Grounds 5: Further evidence

1. As noted above, rather than allege error by the primary judge, Ground 5 was in effect an application under rule 51.51 of the UCPR to adduce further evidence. Philip submitted that if the appeal were allowed, further evidence could be provided to prove Peter's knowledge and undue influence. Philip referred in this context to, "[p]otentially, witness accounts, subpoenas can be organised, to prove knowledge and undue influence" and that "further circumstantial evidence can certainly be gathered to further prove those key issues, or any aspect of the case which are deemed not fully established". The only foreshadowed evidence as to which Philip provides some specificity is that which could be given by Miranda's former solicitor, to the effect that the 2015 Will was signed. As to that specific evidence, I have set out above how the primary judge dealt with the 2015 Will and the proprietary estoppel claim. Further evidence from the solicitor of the nature to which Philip refers would not assist Philip to make good the fundamental proposition on which his proprietary estoppel claim rested, namely, that Peter knew about the 2015 Will, noting that the primary judge proceeded on the basis that the 2015 Will had been signed.

Ground 6: Non-compliance dismissal

1. To the extent that Ground 6 challenges the appropriateness of orders being made under s 66G of the Conveyancing Act, that issue has been addressed above. There is no basis for this Court to accede to Philip's request that "the case be dismissed as it should have been in the first instance". Similarly, Philip's challenge to the order that he pay Peter's costs of the proceedings below was premised on the basis that an order under s 66G was unfair. There is no reason why costs should not have followed the event in the court below.

Conclusion

1. The appeal should be dismissed.
2. Orders 1, 2, 4, and 8 made by the primary judge, appointing trustees under s 66G to sell the Marsfield property and vesting the property in those trustees for that purpose (Orders 1 and 2), requiring Philip to give vacant possession (Order 4) and requiring Philip to pay Peter's costs (Order 8), have been stayed pending the outcome of this appeal. At the hearing of the appeal, counsel for Peter confirmed that the persons named in those orders remain willing to be appointed as trustees. Counsel also confirmed that Peter did not oppose an extension of the stay for 28 days from the date of this Court's judgment.
3. The Court asked Philip if he wished to comment on the proposed duration of the extension that Peter had proposed, in the event that his appeal was not successful. Philip did not raise any issues in relation to the timing that Peter proposed for the lifting of the stay, and made submissions on the merits of the primary judge's orders generally.
4. I note that on 25 July 2022, being the same day as he filed his Notice of Appeal, Philip filed a Notice of Motion seeking the following orders: "1 Extension of stay order, in lieu of Notice of Appeal. 2 Extension of stay order, in lieu of intention to contest the will, if appeal is not granted."
5. Philip made no separate submissions in respect of the Notice of Motion. In so far as Order 1 sought to extend the stay for the purposes of this appeal, I have addressed this above at [115]. In so far as Order 2 seeks to extend the stay pending further proceedings to contest the 2016 Will (which Philip foreshadowed in the course of the hearing in this Court), that is not a matter for this Court. The Notice of Motion should be dismissed.
6. Accordingly, I propose the following orders: 1. Dismiss the Notice of Motion filed on 25 July 2022 with costs. 2. Dismiss the appeal. 3. Set aside order 10 made by the primary judge on 7 July 2022 and, in lieu thereof, order that Orders 1, 2, 4 and 8 be stayed for 28 days from the date of this judgment. 4. Order that the appellant pay the respondent's costs in this Court.
7. BASTEN AJA: I agree with Mitchelmore JA.
8. GRIFFITHS AJA: I agree with Mitchelmore JA.

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