Sellar v Ryan [2026] NSWSC 1086 | Case summary | Zoe

NSWNSWSC

Sellar v Ryan

[2026] NSWSC 1086

Supreme Court of NSW|2026-09-10|Before: Kunc J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-09-10

Before

Kunc J

Catchwords

CIVIL PROCEDURE — Pleadings — Pleading material facts — Effect of alleged representation must be pleaded — Actual words alleged to have been spoken are evidence and should not be pleaded ESTOPPEL — Estoppel by representation — Detrimental reliance SUCCESSION — Construction — General principles — “Principal place of residence” as at the date of death — Property over two lots and multiple dwellings

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE — Pleadings — Pleading material facts — Effect of alleged representation must be pleaded — Actual words alleged to have been spoken are evidence and should not be pleaded ESTOPPEL — Estoppel by representation — Detrimental reliance SUCCESSION — Construction — General principles — “Principal place of residence” as at the date of death — Property over two lots and multiple dwellings

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Sellar v Ryan [2026] NSWSC 1086

Hearing dates: 19 August 2025 – 22 August 2025; final written submissions 16 September 2025

Date of orders: 10 September 2026

Decision date: 10 September 2026

Jurisdiction: Equity

Before: Kunc J

Decision: Plaintiff entitled to judgment against estate for $128,700 and claim otherwise dismissed

Catchwords: CIVIL PROCEDURE — Pleadings — Pleading material facts — Effect of alleged representation must be pleaded — Actual words alleged to have been spoken are evidence and should not be pleaded
ESTOPPEL — Estoppel by representation — Detrimental reliance
SUCCESSION — Construction — General principles — “Principal place of residence” as at the date of death — Property over two lots and multiple dwellings

Legislation Cited: Conveyancing Act 1919 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Allen v Snyder [1972] 2 NSWLR 685
Commissioner of Land Tax v Christie [1973] 2 NSWLR 526
Commissioner of Taxation v Miller (1946) 73 CLR 93
Fell v Fell (1922) 31 CLR 268
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Morris v Morris [1982] NSWLR 61
Pavey & Matthews Pty Ltd v Paul (1986-1987) 162 CLR 221
Plunkett v Bull (1915) 19 CLR 544
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Shepherd v Doolan [2005] NSWSC 42 Warton v Yeo [2015] NSWCA 115 Watson v Foxman (1995) 49 NSWLR 315

This case concerns the estate of the late Allan Sellar, a waterfront property in Gymea Bay of which Allan was the sole registered proprietor, and three siblings: Paula Sellar, Dar****ren Sellar, and Jessica, known as Jessie, Sellar.
Paula and Darren, the second and third defendants respectively, are Allan’s children with his first wife, Carol. Jessie, the plaintiff, is the daughter of Allan and his late second wife, Tracey Sellar.
The first defendant, Ms Lindy Ryan is the executor of the estate. She has entered a submitting appearance.
Without intending any disrespect, the Court will refer to the family members by their given names.
The hearing took four days and included a view of the property. As I explain in [8] below, Jessie’s claims were not settled until the end of the hearing. There were further written submissions. Mr J Mitchell of Counsel appeared for Jessie. The first defendant entered a submitting appearance. Mr A Crossland of Counsel and Mr M Morgan of Counsel appeared for Paula, and Mr D Stewart of Counsel appeared for Darren. Because there was substantial commonality and adoption of submissions between Paula and Darren, in these reasons I will refer to Paula and Darren as the defendants and, generally, to their submissions without more specific attribution between them.
Except for some shares valued at approximately $10,000, the only asset in the estate is the property. At the time of Allan’s death, the property – known as 120 and 120A, XXXXX, Gymea Bay - comprised two adjacent lots (Lot 3 and Lot 643) on steeply sloping land down to the water. In these reasons, property means the land comprising those two lots. In addition to consisting of those lots, there are four buildings located on the property:
A four-bedroom dwelling close to the road (the family home) wholly on Lot 3;
A boatshed on Gymea Bay which straddles Lot 3 and Lot 643 (the parties accepted the boatshed is built over the high water mark);
A waterfront cottage on Gymea Bay which straddles Lot 3 and Lot 643 (the parties accepted the waterfront cottage is built over the high water mark); and
A standalone garage with home office attached, the latter having been built in 2009-2010 (the granny flat) (on Lot 3 and with its own letterbox marked 120A).
An essential piece of background in these proceedings is that Allan’s will (or his will) made on 26 September 1990 was the product of a written contract for mutual wills made between Allan and Tracey, which expressly prevented either of them changing their will without the consent of the other. Their wills were mutual wills leaving their estates to the survivor of the other, or in default to Paula, Darren and Jessie in equal shares. Tracey unexpectedly predeceased Allan. Allan never changed his will.
At the conclusion of the hearing (commencing at Tcpt, 22 August 2025, p 288(13) and ff), Mr Mitchell clarified that Jessie’s claim had three components by reference to the prayers for relief in the Second Further Amended Statement of Claim (SFASOC) filed that day.
The first component was the proper construction of the words “my principal place of residence as at the date of my death” in Allan’s will (construction question). This was the subject of these alternative prayers for relief:

For the reasons which follow, the representation case fails. The Court has accepted that the words alleged to constitute the representations were said to Jessie. However, in summary, as to each representation the Court has found some or all of that the representation was not conveyed by the words, was not proven to have been relied upon by Jessie and could not be attributed to Allan.
While the representation case has not been made out, it is important to note that the Court accepts that Jessie, to her great credit, made life changing decisions in the interests of her parents. I will briefly summarise the Court’s findings on this point.
The Court is satisfied that Tracey was the prime mover in the arrangements. Their essence became (after Tracey’s cancer diagnosis) that Jessie was to work in and receive the newsagency business owned by Tracey (which Jessie did and which she received), that the proceeds of that business were to support the family including the expenses of the property, that Jessie was otherwise to assist in the care of Allan (and then, in her illness, Tracey) and including so that Jessie could live rent free in the property (which she did). No part of the arrangement included an agreement or representation attributable to Allan so as to bind his conscience (and therefore the estate) to give Jessie her own half interest in the property on the death of both her parents.
Tracey did want to change her and Allan’s wills to give a greater share of the property to Jessie. That did not occur before Tracey’s death in November 2015. However, Allan was opposed to giving Jessie a greater proportion of the estate. In January 2018, Allan met with his solicitor to prepare a new will, but for reasons which are not the subject of evidence, that did not occur before Allan’s death in October 2018.
The third component was a series of money claims pressed in the alternative only if the representation case failed. These were the subject of these prayers for relief:

The facts leading up to the making of Allan’s will and as at the date of his death were not in dispute.
Allan married Carol in the 1970s. Paula was born to them in 1971 and Darren in 1973.
Allan and Carol became the registered proprietors of Lot 3 and Lot 643 as joint tenants on 11 January 1983 and 23 May 1983, respectively. Lot 3 extends from the road down to the high water mark of Gymea Bay. Lot 643 extends from the high water mark boundary with Lot 3 into Gymea Bay and was originally recorded in a Grant upon Purchase of Reclaimed Crown Lands.
The Court had the advantage of a view of the property and the parties agreed what was to be gleaned from those observations (see Tcpt, 21 August 2025, p 177). The family home and garage/granny flat are close to the road. The property then slopes sharply down to Gymea Bay. There are stairs and a winding path, both steep in places, from the family home down to the boatshed and waterfront cottage. Both of those structures are built over the high water mark. There is an inclinator from the family home down to the boatshed and waterfront cottage. With three people in it, the inclinator journey from top to bottom during the view took 3 minutes and 27 seconds.
On 27 November 1984, both lots were transferred to Allan as sole proprietor. The Court infers this occurred consequent upon Allan’s separation and subsequent divorce from Carol in or around 1983 to 1984. The two lots remained registered in Allan’s name alone until his death.
After separating from Allan, Carol took Paula and Darren to live in New Zealand, but returned after approximately a year and bought a home across the road from the property. Paula and Darren lived between the waterfront cottage and Carol’s home.
Jessie was born to Allan and Tracey in June 1987. The couple married in June 1988. Allan, Tracey, Jessie and, when they were there, Paula and Darren, lived in the waterfront cottage. The family home was rented out.
In around 1990 or 1991, Carol moved to Queensland; Paula moved out to an apartment in Cronulla; and, Darren moved into the family home.
In September 1990, Paula was 19, Darren was 17 and Jessie was 3 years old.
On 26 September 1990, Allan and Tracey executed a document entitled “Contract to Make Mutual Wills”:

Paula rejected the claim that the property as a whole was not Allan’s principal place of residence at the time of his death. Paula submitted that Jessie’s pleadings fail to clearly state this claim, and also fail to particularise how such a claim could be made out. As such, it was submitted Jessie should be kept to her pleadings.
Mr Crossland submitted that s 30 of the Succession Act 2006 (NSW) makes no real difference to the construction question because it provides that “A will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator”, while Allan’s will itself refers to residence at the date of death. It was also accepted that s 32 of the Act does not apply, meaning evidence of Allan’s intentions were inadmissible and the surrounding circumstances known to Allan, or which Allan should have known – the “testator’s armchair” – are instead the focus.
It was submitted the words “principal place of residence” do not have “one natural meaning” but a reading that the family home was separate from the land around it is an unnatural reading. Further, the corollary of the property as a whole being a ‘place’ is that it is not therefore two places such as one without access to the road while the other has no water access. This was submitted to be supported by the fact the property was purchased as a whole so that it could be used conjointly by Allan, who had complete possession and control. It was also submitted that at the time of making Allan’s will, Allan had other assets, which could assist in interpreting the will. However, the Court was not taken to any evidence of what those other assets were.
Mr Crossland also highlighted the fact that the boatshed and waterfront cottage both straddle the boundary between the two lots, which Jessie accepted in cross-examination. They are only accessible by an inclinator, predominantly built by Allan, and do not have the benefit of an easement. Further, the two lots operated as one street address, with the second street address (120A) being for the granny flat alone.
The practical consequences of the type of order sought were submitted to create a range of uncertainties, and Allan would have been aware of such difficulties. This was submitted to point against a finding he intended the family home to be excised from the lower portion of the property. Further, it was submitted the simple fact that Allan could not physically access the lower portion of the property due to his illness did not result in an inference it was considered separate, or that Allan’s right of access or exclusive possession on demand was diminished. It was also relevant that Allan had previously used the waterfront cottage to entertain.

The starting point is to note the context. “Principal place of residence” can mean different things depending on that context. In a tax statute it could mean a country. In a property duty statute it will mean an identifiable property. In this case it is a gift in a will, that is to say the purpose of the words is to confer a gratuitous benefit on the recipient.
The phrase is ambulatory. It is not a specific devise of the property itself (that is to say, it is not a gift of “my property at 120 XXX Rd, Gymea Bay” – 120A did not exist as a designation because the granny flat was not built until years after Allan’s will was made). The ambulatory nature of the expression is confirmed by the expression “as at the date of my death”, allowing for the possibility that it would not be the same property as Allan was living in at the time of making his will. In my respectful opinion, this means that the phrase cannot be construed to mean that Allan was intending to refer to the family home and the property itself.
While no party suggested the interpretation to which I have just referred, it is important to make the point. That is because, with respect, the arguments advanced for all parties on the construction seem to me to have been influenced to varying degrees by the happenstance that Allan was living at the property both when he made his will and when he died, such that how the various structures on the property were used over the years was referred to.
This influence was apt to mislead because it ignored both that, in applying the “armchair principle”, Allan’s will was to be construed by what was or ought to have been known to Allan as at the date it was made, and that construction and the application of the construction to the facts were two different tasks. In other words, events (including how the property was used) after the date of the will were irrelevant to the question of construction. On the other hand, how the property was being used in the period before and at the date of Allan’s death was relevant to the application of the construction.
The phrase refers to “place of residence” and not “residence”. A “residence” can mean a house. However, “place” suggests more than just a house to the exclusion of the land on which it stands.
Turning to the “armchair principle”, Allan must have known when he made his will, not just as a matter of general knowledge but also from his purchase of the property with Carol and its later transfer to him, that ownership of a house was transferred by acquiring the entire property on which it stood which was contained in a document of title. That knowledge is no less relevant for present purposes even if Allan had no knowledge of the legal distinction between fixtures and chattels or the technicalities of conveyancing.
Construction requires giving effect to the natural and ordinary meaning of words having regard to their context and purpose. To read “place of residence” in the context of a gift in a will as referring to a structure such as a house separate from the property on which it has been built is, in my respectful opinion, completely unnatural. The practical and conveyancing problems such a reading would cause cannot be ignored in determining the natural meaning of the words in the context of a will. How much curtilage around the building was intended to be allowed, what (if anything) could be subdivided, and how access from the road would be legally assured are only three of the complex issues that would arise.
All of these and other conveyancing problems are avoided by a natural reading of “residence” as including the property on which stood the house in which the testator lived. Far more express language about dividing whatever the relevant property was at the date of his death (including as to how it was to be divided) would be required for the Court to construe “principal place of residence” in a way that required attempts to be made by the executor to subdivide it.
Two other points should be made in relation to the construction question.
First, on the facts of this case, assigning a meaning to “principal” was not contentious because it was not suggested that Allan was actually living with any degree of regularity or permanency anywhere other than the family home at the time of his death.
Second, I have not overlooked that Allan intended to benefit Jessie disproportionately over her stepsiblings by leaving her all his other property, whatever it might have been. As I have already noted, the Court was not taken to evidence of what his other property was at the time he made his will. In the events which have happened, the property is the only asset of substance in the estate. This intention was presumably referred to in support of a minimalist interpretation of “place of residence”. However, even acknowledging that intention, it is insufficient to compel a result different to that the Court has reached.
Turning to the application of the Court’s construction to the facts, the Court has no hesitation in finding that the family home, including the property comprising both lots, was Allan’s usual or settled home at the date of his death. It is therefore Allan’s principal place of residence as at the date of his death for the purposes of clause 3 of his will. Quite apart from the fact that the waterfront cottage and boatshed are built over both lots, it would be a nonsense to excise Lot 643 from the property. The access Lot 643 provides to the Gymea Bay waterfront is an essential part of the amenity of Lot 3. The presence of the path, stairs and, most importantly, inclinator put beyond any reasonable doubt that the two lots form, as a matter of fact, the one functioning property with the family home as the dominant structural feature.

I will next set out the Court’s findings of fact in relation to the representation case. Many of these were not seriously in dispute or appear from contemporaneous documents. So that they may be seen in context, in what follows I have included the words alleged to constitute the representations as allegations. Findings in relation to the representations are made in [130] and following below. What follows should also be read with the Court’s findings concerning the making of Allan’s will set out in [21] to 34] above.
In 1992, the foundations for the renovation of the family home were laid. Allan and Tracey undertook various works on the property over many years. It was a labour of love for them.
On 1 October 1992, Allan granted a mortgage over the property to ANZ Bank securing a loan of $200,000.
Between 1993 and 2003 Allan operated a small supermarket in Kurnell.
Jessie was a gymnastics coach in 2002 and 2003 and a sports coach in 2004 to 2008. In 2005 Jessie started tertiary studies and later that year purchased L’Elfin Gymnastics. Between 2005 and 2008 she attended the Australian College of Physical Education.
Between 2003 and 2006, Tracey owned and operated a homewares store in Sutherland.
In June 2006, the mortgage over the property was increased to $300,000 to finance the building of the granny flat.
On 2 May 2007, P A Sellar was incorporated with Tracey as the sole director, secretary and shareholder as the vehicle to purchase the newsagency business known as the Sutherland Newsagency. It was at this time that Tracey and Allan met Ms Lowe (see [69] above). In May 2007, Ms Lowe was 18 years old.
Allan was diagnosed with Parkinson’s disease in 2007 and with prostate cancer in 2008.
In 2009, Jessie was working as a casual teacher, completing her tertiary qualification, running her gymnastics business across four locations and helping out in the newsagency. In July 2009, Jessie attained a Bachelor of Education (Physical and Health Education).
Jessie alleges that one evening in 2009 at the dining table of the family home Tracey said to her in the presence of Allan “We can work together for many years to come. You will always have this house. I can live in the granny flat. You will get most of this property when your father goes.” (Representation 1).
In March 2013, Tracey caused P A Sellar to purchase the commercial building where the newsagency operated. The purchase price was $962,500.
It was also in 2013 that Allan’s mobility became impaired as a result of his Parkinson’s disease.
Jessie alleges that in 2014, while she and her mother were both at the newsagency, Tracey said to her “We have to keep this newsagency. You will need to keep working in it. The newsagency is paying all the bills for this house and all our expenses [I note that Jessie’s affidavit does not say “medical expenses as pleaded] . It will be worth it. This house will be yours when we are gone.” (Representation 4).
Jessie became pregnant in 2014 and her son Noah was born the following year. Her relationship with Noah’s father ended shortly after the child’s birth.
In August 2015, Tracey was diagnosed with Stage 4 lung cancer.
It is around this time Jessie alleges Tracey said to her in the presence of Allan, “Jessie, I can’t keep working in the newsagency. You need to keep the newsagency going. I am going to transfer my shares to you so you can keep running it. You will be the sole shareholder of the business so you can keep running it. It will be enough to maintain the house and your father won’t need to move” (Representation 5).
Jessie also alleges that during 2015 Tracey said to Allan in Jessie’s presence, “I have worked hard for this house. I want my half of this house to go to Jessie.” It is alleged Allan replied, “OK Wal”, using the affectionate name by which Allan referred to Tracey (Representation 8).
On 9 September 2015, Jessie was appointed as a director of P A Sellar. Tracey remained a director until her death.
Some time prior to Tracey’s death, Allan told Mr Nunn that Tracey had wanted to give “half the house” to Jessie (as Allan and Tracey’s daughter) and the other half to be shared equally between Darren and Paula. Allan told Mr Nunn that he (Allan) was “not keen on this at all”.
As I have set out in [69] above, the Court finds that in late October or early November 2015 Tracey said to Ms Lowe:

The “pre billing guide” refers to Ian Connor as another solicitor involved in the matter and the Court infers he is the “Ian” referred to in that file note. The Court takes judicial notice that Ms Catanzariti is a barrister specialising in wills and estates. There is no evidence as to whether her advice was ever sought.
There was some dispute as to whether Jessie attended the conference on 10 December 2015, although Jessie accepted that it was likely that she had attended that conference (Tcpt, 19 August 2025, p 78(23). It is not necessary to come to a concluded view on this because the Court finds that the “informal advice” given to Jessie on 11 December 2015 (whether by phone or in person) was to the effect of the file note set out in [102] above. Jessie accepted that “it could very well be” (Tcpt, 20 August 2025, p 118(4)). While Allan may have been Mr Fox’s client, Jessie clearly had an interest in that advice and the question of whether the Contract could be broken. So much is apparent from the fact that the advice is predicated on finding a solution that favoured Jessie by reducing how much she would have to pay out her stepsiblings when the property passed to all three of them under Allan’s will.
Based on the matters set out in [97] to [104] above, the Court finds that irrespective of whatever, if anything, she had been promised, by 11 December 2015 Jessie knew that Allan’s will could not be changed and that she would be inheriting the property in equal shares with her stepsiblings upon Allan’s death. Significantly, there is nothing in what Mr Fox has recorded of his interactions with Jessie that she told him about any of the representations that she alleges had been made to her up to that time. I have no doubt that if she had, Mr Fox would have recorded it as instructions of potential significance. Accordingly, the Court also finds that Jessie did not raise the representations with Mr Fox during her discussions with him in December 2015.
The Court draws the inferences in the preceding paragraph with more confidence because it accepts the defendants’ submission that a Jones v Dunkel inference should be drawn against Jessie for her unexplained failure to call evidence from Mr Fox, notwithstanding that he had produced his file and transcribed his file notes. Her knowledge of whether Allan could change his will and, as she asserted under cross-examination – assertions the Court does not accept – that she told Mr Fox about the representations, were both issues in the proceedings on which Mr Fox could be expected to cast light. As a result of that unexplained failure, the Court infers that his evidence would not have assisted her case. I record for completeness that I do not consider the fact that his file was in evidence is a sufficient explanation for Jessie’s failure to call Mr Fox.
In 2016, Jessie qualified as an international gymnastics judge.
Also in 2016, Jessie alleges Allan said to her, “I will keep your mother’s dying wish. I will give you your mother’s half of the house” (Trust 1 and Representation 11).
In October 2016, Jessie commenced a relationship with Mr Joseph Poulos. Jessie alleges that in the same month she had this conversation with Allan:

The SFASOC was pleaded by reference to the elements of proprietary estoppel set out in Kramer (see [65] above) and Mr Mitchell submitted that those elements were satisfied. For the reasons which follow, the Court accepts the defendants’ submissions that they were not.
Before considering the various individual representations referred to in paragraph 50, three general difficulties can be identified.
First, what I have defined as the promise cannot be described as clear and unequivocal by reason of at least the following:
“Cumulatively as to some or all” is an immediate indicator of lack of clarity. An operative representation cannot be extracted from an interchangeable set of allegations in a manner akin, for example, to cascading restraint of trade provisions: an allegation that if not representations A, B and C, then A, D and E, then C, E and F etc. constitute the relevant representation.
“Formerly recognised as an interest held by Tracey” is also unclear. Recognised by whom? How was it recognised, especially in circumstances where in fact Tracey never had a legal interest in the property.
“Plus a further undefined share” (my emphasis) is in its very terms unclear and equivocal.
“Amounting to her being given most of the property” (my emphasis) is similarly unclear and equivocal. What between 51% and 99% of the property would be sufficient? The fact that Jessie confines her claim to half the property is a clear recognition of this difficulty.
This first difficulty is sufficient to demonstrate why Jessie’s proprietary estoppel case fails.
Second, insofar as the various words were relied upon were spoken by Tracey, Jessie has failed to establish how they could be a representation made by Allan as alleged. A representation could only be made by Allan if he spoke the words said to constitute the representation himself or if they were spoken on his behalf by someone as his agent.
To establish that Tracey was Allan’s agent would require proving that Tracey had actual or ostensible (also called apparent) authority. There is no suggestion of actual authority. Ostensible authority would require Allan to have held out Tracey as authorised to make the representations on his behalf. This was apparently sought to be done by allegations such as:

If this is intended to be an allegation of holding out by conduct, then the Court accepts the defendants’ submission that none of the matters alleged, taken individually or together, can support a finding that by reason of ostensible authority Tracey made the alleged representation on behalf, or with the agreement, of Allan.
Returning to the critical paragraph 50 of the SFASOC, the problem of authority is sought to be addressed in paragraph 51 of the SFASOC, set out in [131] above.
The Court accepts the defendants’ submission that none of the matters in paragraph 51 of the SFASOC is sufficient to make Tracey’s words Allan’s for the purpose of a proprietary estoppel case based on encouragement by representation. However, appeals to Allan’s acquiescence (if the Court were to find on the balance of probabilities he had acquiesced by his silence, which it does not, given the presence of other plausible explanations such as not wanting to get into an argument with Tracey) and failure to correct may have been arguably relevant if it had been pleaded or argued – which it was not – that Allan had made the alleged representations by his silence. This would have required Jessie to plead and prove that in the circumstances attending Tracey uttering the alleged representations, Allan had a duty to speak. This case was never advanced and no submission was ever advanced that Allan had such a duty. The case, as paragraph 50 makes clear, was always of “a clear and unequivocal promise made by [Allan] to [Jessie]”.
The third difficulty arises from the requirement that Jessie relied on the promise in the sense that she would not have acted as she did in the absence of the promise. Addressing this issue draws attention to what, with respect, can only be described as the artificiality of the allegation made by paragraph 50 of the SFASOC. There is no evidence that Jessie understood the promise in the way that it is alleged in paragraph 50 or relied upon such a promise.
How she is alleged to have acted is pleaded as:

It is only after this that she deposes to Representation 1. This suggests that her decision to give up her teaching career was as described in paragraph 54 of her affidavit and not because of any representation by or on behalf of Allan. In cross-examination Jessie maintained it had been because of what she believed she had been promised. Given that state of the evidence, I am unable to reach a state of actual satisfaction on the balance of probabilities that Representation 1 was made before the decision she deposes to in paragraph 54 of her affidavit. However, even if it was, it suffers from the difficulties referred to in [147] to [151] below.
What is clear is that the need for her father to undergo daily treatment set her life on a particular course of working in the newsagency and caring for her parents as the need arose. Jessie had not received wages for her work in the newsagency and there is no evidence that she at this time, or at any other time, asked for or was offered wages. Her evidence was that she “never really thought to ask” for wages (Tcpt, 20 August 2025, p 132(47)). She was, as appears below, later offered and given the newsagency in return for her devoting herself to her parents.
Jessie deposes that Representation 1 was made to her by Tracey in 2009 in the presence of Allan. However, she gives no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. She goes on that by 2010 she was operating four gymnastic locations, a cheerleading academy and managing the newsagency. Furthermore, Representation 1 is about Tracey’s wishes: that she and Jessie work together in the newsagency and that (on the assumption Allan predeceases Tracey), Tracey could live in the granny flat.
Further as to Representation 1, while it maybe be accepted that the words conveyed the representation “that the property was hers in a general sense and that she would be conveyed ownership of most of the property when [Allan] died”, the representation is not clear and unequivocal. The assertion that “you will always have this house” is inconsistent with owning “most” of the property. What “most of the property” means is indeterminate, as is how the property is to be “conveyed”. For example, because the representation seems to assume that Allan would predecease Tracey, it could refer to Tracey giving some part of the property to Jessie after it had passed to Tracey under Allan’s will.
The lack of clarity was demonstrated by Tracey’s evidence in this exchange with me about Representation 1 during her cross-examination:

When I later asked her what she understood by being “looked after” she replied “I think with the other conversations that I’d always had, that mum’s interest in the house would go to me” (Tcpt, 20 August 2025, p 134(30)). However, there was no evidence of what the “other conversations” were that preceded Representation 1.
By 2014, when she fell pregnant with Noah, she had sold two of her four gymnastic locations. It was around this time Representation 4 was made. This is not relied upon in paragraph 50 because Allan was not present when it was made. However, it forms part of the context. It is Tracey identifying her plan that Jessie had to keep working in the newsagency to generate the income to meet household and medical expenses. It is at least implicit in this and the other representations that Jessie would continue to live in the property rent free.
Noah was born in June 2015 and Jessie’s relationship with his father ended shortly after. In August 2015, Tracey was diagnosed with stage 4 lung cancer. Jessie deposes (paragraph 66) that “following my mother’s diagnosis, I could not continue to work long hours in the newsagency as well as keep up the work on my remaining gymnastic businesses”.
It is around this time that Representation 5 is made to her in the presence of Allan. It is relied on in paragraph 50 of the SFASOC. It is a representation that was made good by Jessie becoming sole shareholder of P A Sellar, which owned both the newsagency and the commercial building in which it was located.
Importantly, the affidavit is silent about any reliance on Representation 5 relevant to the promise, or at all. Again, Jessie gives no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. Given the circumstances, it is difficult to see what Jessie could have done other than take over the newsagency to support her parents and keep them in the home in which she has lived all her life (and in which, Jessie has given evidence, she wishes to continue to live). There was no evidence or submission that any other course was open to her that she would have pursued. Her operation of the newsagency went towards, among other things, the expenses of the property in which she and Noah were living, as the defendants submit, rent free.
Further as to Representation 5, that representation as pleaded is not made out by the words alleged. Neither the words nor the representation as pleaded say anything about Jessie receiving any share in the property. Furthermore, while it is alleged that this representation was made in the presence of Allan, Jessie gives no evidence that Allan was present. Her evidence in her principal affidavit (paragraph 66) is of an intimate conversation between her and Tracey in the lounge room of the family home while Tracey nursed Noah after Tracey had undergone a day of cancer treatment. The Court is not satisfied that Allan was present.
Jessie also deposes that around that time Representation 8 was made. However, again she gives no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. In what I regard as a truthful answer and which I accept, when I asked Jessie in relation to Representation 8, “Did you think you had to do anything on your part from this conversation to get half the house?” her answer was “I think I thought I was already doing it” (Tcpt, 20 August 2025, p 126(6)). The Court finds that at this point what she “was already doing” was not in reliance on any pleaded promise or representation concerning obtaining half (or more) of the property.
Further as to Representation 8, the representation as pleaded is not made out by the words alleged. Even if it were, the representation was not made to Jessie. Jessie accepted:
Tracey and Allan were not speaking to her (Jessie) (Tcpt, 20 August 2025, p 122(50) – 123(1));
She was only assuming that Tracey and Allan knew that she (Jessie) could hear them (Tcpt, 20 August 2025, p 124(7));
That what she took away from what she heard was “that possibly both of them would change their wills (Tcpt, 20 August 2025, p 125(25));
Nor would the Court find that Allan’s response of “OK Wal” could reasonably be understood as clear agreement with what Tracey said. It is equally plausible that it was a non-committal response or one designed to placate Tracey and avoid an argument. These alternative characterisations are open in the light of Mr Nunn’s unchallenged evidence that Allan had said that he (Allan) was not at all keen on Tracey’s desire to give “half the house” to Jessie, and that after her death he said he wanted to share the estate equally between the three children (see [92] and [96] above).
Jessie’s evidence is that Representation 11 was made to her in 2016 by Allan. It is relied upon in paragraph 50 of the SFASOC. However, again she gives no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. While the representation is also unclear as to whether the future gift was to be inter vivos or testamentary, there is no suggestion Jessie understood it to be the former. To the extent it might be found that Jessie relevantly relied on that representation as referring to a testamentary gift, the Court finds that any such reliance was unreasonable because by December 2015 (see [105] above) Jessie knew the contents of Allan’s will and that Allan could not legally change it. Under cross-examination, Jessie denied she had that understanding at the time Representation 11 was made to her, but I do not accept her denial in the face of Mr Fox’s contemporaneous notes from December 2015.
Further as to Representation 11, in its reference to “your mother’s half of the house” (which Tracey never had) is inconsistent Representation 1’s reference to ownership of “most of the property”. The fact that Jessie did not raise the inconsistency suggests she was not relying on either of them. Alternatively, the inconsistency made reliance on either of them unreasonable.
Jessie then says that Representation 12 was made around mid-2018. However, again she gives no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. This is not surprising, given that she describes her circumstances at the time (paragraph 84) as “Joseph [her partner] did not really want to move into the family home [in the events which happened, he did not] and I did not want to leave the family home and I did not feel that I could leave dad”.
In any event, the representation as pleaded is not made out by the words alleged. Even if it were, its reference to “most of this house” does not satisfy the requirement of a clear and unequivocal representation.
Furthermore, to the extent it might be found Jessie relevantly relied on Representation 12, the Court finds any such reliance would have been unreasonable, again because by December 2015 (see [105] above) Jessie knew the contents of Allan’s will and that Allan could not legally change it. There is no evidence that he had told her (or that she had even asked) that he had actually changed his will since December 2015.
Although Representation 13 is referred to in paragraph 50, it is irrelevant because Jessie accepted in cross-examination that she did not rely on it (Tcpt, 20 August 2025, p 141(14)). However, I note that before that concession was made, Jessie again had given no evidence that she did anything she was not doing, or would not otherwise have done, in reliance on that representation. Furthermore, assuming some detrimental reliance could be shown based solely on this representation, given it was made within a year or less before Allan died, proportionate relief would not be to declare that Jessie has an interest in half the property.
The defendants relied on several matters as supporting the proposition that the representations were never said to Jessie. The Court relies on these in support of its conclusion that to the extent that any of the representations as pleaded were spoken to Jessie, she did not rely on them so as to give her any entitlement to relief:
She failed to raise any of them with Mr Fox (see [105] above).
The focus of Mr Fox’s advice was predicated on her receiving the property under Allan’s will and being in the best position to buy out her stepsiblings (see [102] above).
She failed to raise any of them with Ms Lowe (see [71(3)] above).
At no time, up to including after the making of Representation 11 and before the making of Representation 12, did she ever follow up with Allan whether he had changed his will.
The representations were not referred to in the caveat (see [123] above), which propounded an interest different to that sought to be established in these proceedings.
The first time that Jessie referred to the representations and her alleged reliance on them was in solicitor’s correspondence in 2023.

The defendants submitted that if Jessie’s representation case failed then the claims for relief based on a common intention or joint endeavour must also fail. The Court accepts that submission. The common intention or joint endeavour pleaded in paragraph 56 of the SFASOC (see [178] above) has not been made out.
It is convenient to begin with White J’s salutary observation that “equitable rights do not arise merely because the Court considers it fair in all the proven circumstances that the legal owner of property should hold it, or a portion of it, for the benefit of another”. It might be thought that where what Jessie was plainly promised in return for working in the newsagency and assisting her parents – the newsagency (which brought with it the commercial property) – did not yield a substantial financial benefit to Jessie on sale, it would be fair for Jessie to receive more of the property. However, that is not how the principles apply.
Given the Court’s findings about the representations and who made them, Jessie, who bore the onus, has failed to prove that Allan agreed with her, or that it was her and Allan’s common actual intention, that she should have a half interest in the property. Again, as White J points out, “the law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue”. Nor do I accept that their actual common intention can be inferred from Jessie making the mortgage and other payments referred to in [179] above, not least because by only a few weeks later Jessie was aware of the contents of Allan’s will (see [105] above).
Similarly, the joint endeavour pleaded in paragraph 56 of the SFASOC has not been made out. Furthermore, paragraph 59 of the SFASOC pleads that “there was a departure from the common intention or joint endeavour caused by Tracey’s illness and death” as an event not contemplated by the Allan and Jessie. It is not apparent how that sad event could represent either the failure of the pleaded joint endeavour or its premature termination.

In paragraph 62 of the SFASOC Jessie claims that she “is entitled to a return of the contributions made to the property and the deceased’s estate and quantum meruit in respect of the provision of those services by her in the Newsagency business for which she was unpaid and which were provided for the benefit of the Deceased and the Deceased’s estate, including the property”. She claims $666,483.30 (inclusive of interest at Supreme Court rates) as reasonable remuneration for her work in the newsagency between July 2009 and December 2019, calculated by reference to the hours she claims to have worked and applying the General Retail Industry Award 2010 and based on the levels appropriate for being second in charge and then in charge of a retail outlet. Those hours begin at 30 per week and then increase to 40, 50 and then 61.5 from July 2015.
Citing the decision of the High Court in Pavey & Matthews Pty Ltd v Paul (1986-1987) 162 CLR 221, it was submitted for Jessie that the elements for a claim in quantum meruit in a case where there was contract for services had been made out. These were said to be:
Jessie performed work conferring a benefit without being rewarded as agreed;
The benefits conferred were not intended as a gift or done gratuitously; and
The benefit was actually or constructively accepted by Tracey and/or Allan at the expense of Jessie.
The Court accepts the defendants’ submission that no such entitlement was established. There are five reasons for this conclusion.
First, the Court is not actually satisfied on the balance of probabilities that Jessie actually worked the hours she now claims, going back many years. For example, it was Tracey who was managing the newsagency until August 2015 and in those years Jessie was running her gymnastics businesses and judging gymnastic competitions. At all times before and after Tracey’s illness there were other employees in the newsagency (for example, Ms Lowe). In the later years Jessie also had child care responsibilities.
Second, insofar as Jessie submits that she was not rewarded “as agreed” there was never any agreement (or request by Jessie) that she be paid a wage. Insofar as Jessie seeks to include “as agreed” an entitlement to half the property, the Court’s findings in relation to the representation claim make clear that Allan never agreed, that there was no such unequivocal term and that Jessie has not established that she relevantly relied on anything attributable in law or fact to Allan. In other words, there is no “injustice” suffered by Jessie which can be visited on Allan.
Third, Allan (or the estate) is not the correct defendant for the benefit sought to be compensated by a claim for wages. Her labour was a benefit conferred on P A Sellar and if Jessie had a basis to compensated in the way she seeks, that would be a claim against P A Sellar.
Fourth, the overall arrangements driven by Tracey and then by Allan involved Jessie living rent free in the property and enjoying the benefits that enured to the family from the funds provided by the newsagency. The arrangement was in this respect unremarkable: a family living off a business run by the family and where the family members who worked in the business did not receive a formal wage. Jessie lived in the property and enjoyed those benefits. To compensate her with the equivalent of full time wages would be to overcompensate her, because she would be in a position of having enjoyed the benefits and (by the Court’s award) receiving a wage that was never part of what was contemplated.
Fifth, in his leading judgment in Pavey, Deane J said (at 263):

There was no dispute that Jessie had personally made payments towards the mortgage over the property and for some outgoings of $128,700. The defendants accepted that Jessie could claim two-thirds of this from the estate. The Court also accepts their submission that there was no basis for that sum to be secured by a charge against the estate. However, if the debt is not paid before the property is transmitted to the three beneficiaries, equity would secure Jessie’s right of contribution from the defendants for the mortgage repayments by a charge over their interest in the property.
Jessie claimed an extra $184,300 paid by P A Sellar if the Court accepted that Tracey’s share in that company had been transferred to Jessie on or about 9 September 2015. This seemed to be put on the basis that P A Sellar had been able to do so because of Jessie’s operation and management of the newsagency. The defendants submitted that the share was not transferred until 9 October 2018 and that from Tracey’s death until that date, Allan was the shareholder and that it was therefore “his” money that had been applied to the mortgage and outgoings.
In my respectful opinion, all parties’ reliance on who the shareholder was is misconceived. Given the dearth of independent evidence and the fact that non-lawyers could well assume that by making someone a director you were “giving” them the company, as a matter of law the Court will prefer the ASIC record and finds that Tracey’s share was not transferred to Jessie until 2018. However that is irrelevant to the present issue. Jessie and P A Sellar are separate legal persons. Jessie cannot claim money paid in respect of the property by P A Sellar. Whether P A Sellar has a claim is not an issue before the Court, but any such claim would have to overcome what seems to be very clear on the evidence, being that Tracey intended, and Jessie understood, that Tracey and Allan would pay their debts and living expenses, including in respect of the property, out of P A Sellar’s income.
Jessie is entitled to judgment against the first defendant representing the estate for $128,700.

Sellar v Ryan

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

A. Summary

B. Construction question

Facts

Jessie’s submissions

Paula’s submissions

Darren’s submissions

Jessie’s submissions in reply

Disposition

C. The representation case

The importance of pleading in accordance with the UCPR

The SFASOC

Witnesses

Facts

Were the words which evidence the representations spoken?

Proprietary estoppel giving rise to a constructive trust?

Express oral trust

Jessie’s submissions

The defendants’ submissions

Disposition

Common intention or joint endeavour constructive trust

Legal Principles

Disposition

Morris v Morris

D. Money claims

Unjust enrichment

Mortgage and outgoings payments

Improvements, motor vehicle expenses and Allan’s expenses

Administration costs

Rent received

Motor vehicle

Jessie’s occupation of the property

The special defence

E. Conclusion

Parties

Legislation Cited (4)

Cases Cited (22)