Stojanovski v Stoyanovski

Procedure Rules 2005 (NSW) Cases Cited: Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122 Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No 2) [2016] NSWSC 1123 Blacket v Barnett [2017] NSWSC 1032 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Chen v Chu [2024] NSWSC 1139 Daniel v Athans [2022] NSWSC 1712 Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Fiorenza v Fiorenza [2024] NSWSC 549 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hampson v Hampson [2010] NSWSC 217 Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 Jennings v Rice [2002] EWCA Civ 159 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67 Kramer v Stone [2023] NSWCA 270 Kramer v Stone [2024] HCA 48 Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723; [1935] HCA 33 Priestley v Priestley [2017] NSWCA 155 Punchbowl Casual Dining Pty Ltd v Rashays Cafes (Trial Judgment) [2024] FCA 1265 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 Reeves v Reeves [2024] NSWSC 134 Riches v Hogben [1985] 2 Qd R 292 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 Slade v Brose [2024] NSWCA 197 Soulos v Pagones [2023] NSWCA 243; (2023) 416 ALR 181 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 Steria Ltd v Hutchison [2006] EWCA Civ 1551 Sullivan v Sullivan [2006] NSWCA 312 Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wang v Yu [2023] NSWSC 1182 Wild v Meduri [2023] NSWSC 113 Wild v Meduri [2024] NSWCA 230 Texts Cited: Barnes QC, Michael, The Law of Estoppel (2020, Hart Publishing) Lindsay J, "Evaluation of a proprietary estoppel claim to a family farm: Text, Context and Purpose" (Paper), STEP Queensland Annual Conference, 6 October 2023 Category: Principal judgment Parties: Dimce Stojanovski (First Plaintiff / First Cross-Defendant) Valentina Tusevska-Stojanovski (Second Plaintiff / Second Cross-Defendant) Rade Stoyanovski (Defendant / Cross-Claimant) Representation: Counsel: G M McGrath (Plaintiffs / Cross-Defendants) N Bilinsky with P Boyle (Defendant / Cross-Claimant)

Solicitors: Ballantyne Law (Plaintiffs / Cross-Defendants) O'Reilly & Sochacki Lawyers (Defendant / Cross-Claimant) File Number(s): 2022/260736

Introduction

1. HIS HONOUR: The city of Bitola in North Macedonia [1] is known as the "City of Consuls", reputedly because it was Bitola where most of the consulates of many countries were situated.
2. The defendant, the now late Rade Stoyanovski (Rade, also referred to as "Ray"), was born in Dobruševo, a village near Bitola, in 1934. Sadly, he lived his early and final years in an environment of conflict. Little is disclosed of his early childhood. However, his school-aged years coincided with contested control of the city in the early 1940s.
3. Rade married Danica Stoyanovski (Danica). Their eldest child, the first plaintiff, Dimce Stojanovski [2] (Dimce, also referred to as "Jim" or "Jimmy"), was born in Bitola in September 1959. Dimce is currently 65 years old.
4. The young family immigrated to Australia in 1960, no doubt looking for a fresh start in life, and settled in Mullumbimby, New South Wales. In 1961, Rade and Danica's only other child, Susanna Stoyanovski (Susanna, also referred to in the evidence as "Suzie"), was born.
5. Rade and his family prospered and came to hold valuable commercial and residential property in both Mullumbimby and Sydney. One of those properties, being the family home at Palmer Close, Illawong (Illawong Property), has become the source of a dispute between the plaintiffs, Dimce and his wife Valentina Tusevska-Stojanovski (Valentina), and Rade, over the plaintiffs' purported interest in the property.
6. In essence, the plaintiffs claim an interest in the Illawong Property on the basis of a proprietary estoppel, based upon various promises and representations said to have been made by Rade and Danica to the plaintiffs over several decades. The alleged representations evolved over time and formed part of what was said to be a larger family arrangement which essentially required Dimce to get married and have a family, after which the plaintiffs were required to work and care for Rade and Danica at home and in Rade's property investment business in Mullumbimby in return for income, security and (eventually) inheritance, as I explain further below. While Rade is recorded as the registered proprietor of the Illawong Property, it is the plaintiffs who reside in the property with their three young children, as they have done for over two decades. From November 2021, Rade had engaged in several attempts to have the plaintiffs and their family vacate the property. Ironically, and unfortunately, the art of diplomacy though sensitive and tactful dealings, a hallmark of the consuls of their city of origin, has not been a characteristic of the interactions between Dimce and Rade in recent years.

Representation of Rade's estate

1. After the parties notified the Court of Rade's death, the matter was listed for mention before me. I was of the view that there needed to be some form of regularisation of the representation of Rade's estate, and no party contended otherwise. I directed that the parties confer with a view to drafting an appropriate representative order in respect of his estate. Regrettably, the parties were unable to come to an agreed position on the representation of Rade's estate in the proceedings. I subsequently directed that any party seeking to address the appointment of an appropriate representative of Rade's estate file and serve a notice of motion returnable before me on 4 December 2024. Directions for any reply affidavits and submissions were also made.
2. On 12 November 2024, Rade's solicitors filed a notice of motion seeking the following order: 1. Order pursuant to Rule 7.10 of the Uniform Civil Procedure Rules 2005, that John Robinson be appointed the representative of the late Rade Stoyanovski's Estate for the purposes of the proceedings.
3. John Robinson (Mr Robinson) had been acting as Rade's tutor in these proceedings since March 2023. He is an accountant based in Mullumbimby who knew Rade since 1974, and was appointed as Rade's attorney in 2021.
4. The parties provided competing affidavits and submissions in respect of the application for Mr Robinson's appointment.
5. The plaintiffs raised a number of issues, including that the order sought under the notice of motion was "not in any way restricted" and it was not clear what actions Mr Robinson proposed to take in relation to his appointment. Questions were also raised as to Mr Robinson's remuneration and indemnity from Rade's estate in relation to his work as Rade's attorney and conduct of the proceedings on Rade's behalf. Assertions were also made as to Mr Robinson's purported role in ongoing disputes between the parties ancillary to the subject-matter of these proceedings.
6. That all being said, on the hearing of the motion, I understood the principal concern of the plaintiffs to be that, if appointed under an order akin to that in the notice of motion, Mr Robinson would be effectively authorised to enforce any judgment against the plaintiffs in relation to the cross-claim for possession of the Illawong Property.
7. My response to that concern was essentially threefold: 1. it was necessary to regularise the representation of Rade's estate so that it would be bound by the pending outcome of the proceedings; 2. pending the delivery of reasons for judgment and the making of final orders, there was no significant active part for the representative of Rade's estate to play in the proceedings; and 3. in those circumstances, it was necessary to bring the matter to a point where judgment could be delivered and final orders made. Beyond that point, the representation of Rade's estate and any enforcement of final orders made would need to be dealt with based on the then prevailing circumstances.

Deponents

1. Each of the plaintiffs affirmed affidavits in chief. In addition, the plaintiffs relied upon affidavits from the following deponents: 1. Garry Frederick Newton - a property manager based in Mullumbimby who started working for Rade and Danica at the beginning of 2013 (Mr Newton); 2. Andrew Nicholas Sochacki - a principal of Elliot & Sochacki Lawyers in Mullumbimby, who gave evidence of a conversation he had with Danica after Rade had suffered a stroke (Mr Sochacki); 3. Blagojche Pishmanovski - a nephew of the plaintiffs; 4. William Donald Nicholls - an accountant who practised as W D Nicholls Chartered Accountants at relevant times in Mullumbimby, who acted for Rade and Danica between approximately 1989 and his retirement in 2014, although he had some ongoing contact with them after that time (Mr Nicholls); 5. Nina Drew - a great grandniece of Rade and daughter of Lenche Stojanovski, who deposed to discussions she had with Rade in October 2022; 6. Denise Anne Prentice - an assistant accountant with W D Nicholls Chartered Accountants since July 2013, who assisted the Stoyanovski family with accounting services since July 2014 (Ms Prentice); 7. Lenche Stojanovski - Rade's niece-in-law and the mother of Nina, who has known Rade and Dimce for 45 years (Lenche, also known as "Lena"); 8. Zivko Trajchevski - a nephew of Danica (Mr Trajchevski); 9. Hiske Jemma Bain - a friend of Dimce who, in the 1980s, was relevantly a co-owner with Dimce and five other parties of a multiple occupancy property at Huonbrook (Ms Bain); 10. Slave Mitrovski - the son of a second cousin of Rade, who was a close neighbour of Rade and his family in Dobruševo and has known the family ever since, having also immigrated to Australia (Mr Mitrovski); 11. Simona Ilioska - a niece of Valentina (Ms Ilioska); 12. Dobrica Josifovska - the daughter of a second cousin of Rade's mother, who was a neighbour of Rade and his family in Dobruševo and has known Rade and his family ever since, having also immigrated to Australia (Ms Josifovska); and 13. Goce Risteski - the son of a first cousin of Rade, who lives in Macedonia and knew Valentina and her family for many years (Mr Risteski).
2. Rade did not give any evidence himself in these proceedings. However, he relied upon affidavits from the following deponents: 1. Mr Robinson; 2. Gordana Dikova Bozinovska - a solicitor operating in Rockdale, who had been assisting Rade in relation to his father's estate in probate proceedings conducted in Macedonia in February 2011 (Ms Bozinovska): CB 672; and 3. Susanna.

Susanna's evidence

1. Initially, I was minded to reject certain evidence in Susanna's affidavit referring to conversations with Rade (specifically, CB 305[22], 309[47], 310[54]) on the basis that it was inadmissible hearsay evidence: T 218.20-219.4. A question arose as to Rade's availability to give evidence, given that he was appearing by a tutor in the proceedings.
2. In relation to the hearsay exception under s 63(2)(a) of the Evidence Act 1995 (NSW) (Evidence Act), cl 4 of Pt 2 of the Dictionary addresses the availability of persons. Relevantly for the present purposes, cl 4(1)(c) provides that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.
3. There does not appear to be a great deal of caselaw which bears upon the issue. During a luncheon adjournment, I reviewed a number of decisions.
4. There are at least two related decisions of Garling J which addressed circumstances in which a plaintiff had a tutor appointed to conduct litigation approximately 12 months before the hearing of the proceedings and sought to lead hearsay evidence consisting of previous representations made by her in statements made by her in conferences with her solicitor: see Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122 (Alzawy) at [4], [18]-[22]. Garling J concluded that the plaintiff was physically and mentally capable of giving evidence "in a general sense", which was more than sufficient for her to be called to give evidence of the accident which was the subject of the proceedings: Alzawy at [39]. The hearsay evidence was rejected. However, subsequently, when the plaintiff was called to give evidence, Garling J found it necessary to refer to the plaintiff's previous statements in any case, as her oral evidence was mostly non-responsive: see Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No 2) [2016] NSWSC 1123 at [37]-[40].
5. More recently, in Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 (Twigg), Stevenson J, noting that a tutor had been appointed for the first plaintiff (who had a cognitive impairment), observed that she would therefore not be available to give evidence in the proceedings: Twigg at [61]. It was common ground, in those circumstances, that his Honour should decide the application (being to dismiss the proceedings as an abuse of process) on the basis that the plaintiffs would succeed in having the first plaintiff's affidavit and transcript evidence which had been read and heard in earlier proceedings admitted on the basis that the first plaintiff was not available for the purposes of s 63 of the Evidence Act: Twigg at [62].

Submissions

1. Mr Bilinsky submitted that the case advanced by the plaintiffs is an exercise in revisionism and reconstruction. He stated that their case depends wholly upon informal oral representations which are vague, imprecise and made in a family context. He emphasised that the representations are not corroborated by objective evidence and the plaintiffs have an obvious self-interest in the outcome of the proceedings: DCS [1(a)-(c)].
2. In particular, to the extent that the plaintiffs and other witnesses they called in support cited Macedonian cultural practices for the context in which the alleged agreement was forged, Mr Bilinsky submitted that what emerges is an implied understanding "based upon that cultural tradition that where the eldest son comes to live with his parents, the house automatically becomes his house and will be inherited by him", which hope and expectation has been twisted into a representation alleged to bind the conscience of Rade "for all time": DCS [1(d)-(f)].

Approach to evidence

1. In relation to the requisite standard of proof for determining the facts in issue in this case, s 140 of the Evidence Act provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject‐matter of the proceeding, and (c) the gravity of the matters alleged.
2. That statutory standard requires "actual persuasion" of the occurrence or existence of a fact in issue, and not a mere mechanical comparison of the probabilities as between the competing accounts: Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47] per Gleeson JA (Bell CJ at [1] and Stern JA at [62] agreeing).
3. The frailty of human recollection is well-known, particularly where the issues in the proceedings focus on events and alleged statements made many years ago.
4. Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. The importance of this approach has been emphasised in two recent decisions of Leeming JA sitting at first instance.
5. In Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67, Leeming JA stated at [43]-[44]: 43. Given the dearth of documents which would ordinarily be available, it is all the more important to commence with the incontestably correct context, as recorded in contemporaneous documents, before turning to the almost wholly testimonial evidence which bears on whether the transactions were authorised. That approach accords with what was suggested by Keane JA in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], which in turn accorded with what had been said in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28]-[29]: Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation. 44. Two reasons for that are the notorious fragility and malleability of human memory, especially when confronted with the litigation process, and the limitations upon judges to discern reliable testimonial evidence from sincerely held but unreliable reconstructed evidence and dishonest evidence. Many authorities are collected in Arizabaleta v R [2023] NSWCCA 217 at [93]-[109]. It suffices to note what was said in Coote v Kelly [2013] NSWCA 357 at [51]: Memory is all too fallible. McHugh J referred to 'the everyday experience of the courts that honest witnesses are frequently in error about the details of events': M v The Queen [1994] HCA 63; 181 CLR 487 at 534. The process of conscious and subconscious reconstruction of what was actually said in a conversation, to which McLelland CJ in Eq referred in Watson v Foxman (1995) 49 NSWLR 315 at 319, is familiar.

Dimce

1. Mr Bilinsky submitted that certain of Dimce's evidence (including in relation to his alleged investment of $25,000 in the Illawong Property, the dispute about which I set out in more detail below) was unsubstantiated by any documentation and not plausible: DCS [10].
2. He further submitted that there was inconsistency in Dimce's evidence regarding whether: 1. he had been promised "a house", as he had said in a previous statement in December 2021 (CB 724[21]), or specifically the Illawong Property (CB 46[47]-[48]), which Dimce tacitly accepted was different (or on one view inconsistent) evidence: DCS [11]-[12], citing T 66.46-.50; 2. he had told Valentina that part of the "arrangement" was that they would both be required to look after his parents: DCS [12], citing T 73.47-74.15; and 3. he proposed to Valentina in order to fulfil an "agreement" or because he fell in love with her and wanted to have a family: DCS [14], citing T 66.46-.48, cf T 72.12-.33, 73.19-.27.
3. Dimce gave his evidence in a relatively clear and concise way. My impression was that he was generally attentive to the questions asked. There was no obvious indication from his presentation or answers which tended to suggest that he was being dishonest.
4. At times, he made appropriate concessions. When pressed on his recollection of what Rade had said to him in conversations which occurred around 25 years ago, Dimce acknowledged that he could not remember the exact words, but he could remember the gist of the conversations: T 67.12-.24.
5. For reasons that I articulate more particularly below, there are some parts of his evidence which I accept and others which I reject. Parts of his evidence I doubted, including in relation to his use of a sum of $25,000 from the proceeds of sale of his share in a multiple occupancy property, the degree of his expenditure on the Illawong Property, the extent of his care for Rade and Danica, the extent to which he was denied investment opportunities (specifically in relation to the purchase of another property at Illawong) and the extent to which he sacrificed his artistic career. In those respects, detailed more fully below, I am not satisfied by his evidence to the standard required by s 140 of the Evidence Act. In certain respects which I detail below, I prefer the evidence of Susanna to the extent to which it conflicts with Dimce's evidence.

Valentina

1. Mr Bilinsky submitted that Valentina's evidence in relation to being forbidden from finding work outside the family is not credible: T 326.12-.13. He further submitted that there was inconsistency between Valentina's evidence and Dimce's evidence in cross-examination regarding the time they spent in Mullumbimby. Specifically, he submitted that Dimce suggested that they were "really not there at all much", whereas Valentina "started to obviously wind‑up for a long submission that they were actively working and spending at times months up there": T 327.1-.10.
2. In her affidavit, Valentina deposed to recalling details of lengthy conversations (at times spanning several pages) in direct speech, usually prefaced with the phrase "words to the effect". Such conversations were said to be with: 1. Dimce, shortly after they first met each other in Macedonia in 2001: CB 110[11]; 2. Rade and Danica, in the week after Valentina's arrival in Australia in August 2002: CB 112-115[22] and CB 115-117[25]-[26] (seemingly at the same time, but in any event prior to March 2003); 3. Rade, Dimce and Danica, in 2011: CB 123[57]-124[60]; 4. Danica, in early 2017: CB 129[100]-131[102]; and 5. Rade and Dimce, in around November 2020: CB 138[146]-140[150].
3. When pressed on her recollection of the first two conversations, Valentina acknowledged that they were not "real recollection" on her part or necessarily the "exact words" spoken, but she recalled "most of it" and they essentially reflected the "meaning" of what had been discussed: T 115.25-116.9, 124.34-.35. I take that to mean she essentially recalled the gist of those conversations.
4. There were other examples of Valentina "recalling" specific details of conversations without the prefatory phrase "words to the effect". Whether the omission of that phrase in those cases was advertent was not made clear on the hearing.
5. The question of the proper form of affidavit evidence of conversations has been the subject of recent judicial comment: see e.g. Wild v Meduri [2024] NSWCA 230 at [243]-[254] per Bell CJ, [333]-[357] per Kirk JA, cf [282]-[332] per White JA; Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [119] per White JA (Simpson and Basten AJJA agreeing); Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [119]-[129] per Jackman J; Chen v Chu [2024] NSWSC 1139 at [262]-[269] per Hammerschlag CJ in Eq; Punchbowl Casual Dining Pty Ltd v Rashays Cafes (Trial Judgment) [2024] FCA 1265 at [27]-[32] per Jackman J.

Mr Newton

1. Mr McGrath submitted that Mr Newton was "sincere, almost to a fault, and credible": T 275.20.
2. Whilst there were some curious aspects of Mr Newton's evidence overall, I am inclined to accept his evidence, in particular for the reasons I set out further below.

Lenche

1. Lenche was cross-examined by Mr Bilinsky. On the whole, my impression of Lenche was that she was a generally reliable and truthful witness, simply seeking to recount what she recalled and not seeking to argue a position or volunteer information unnecessarily.

Mr Robinson

1. Mr Robinson was cross-examined by Mr McGrath. He gave his evidence in a straightforward way. Generally, I accept his evidence. He was challenged by Mr McGrath on a number of points.
2. Mr McGrath sought to challenge Mr Robinson's ability to receive instructions from Rade, essentially putting to Mr Robinson that he had extreme difficulty in communicating with or understanding Rade: T 241.29-246.47. The purpose of some of the cross-examination was not self-evident and I enquired about it. In Mr Robinson's absence, Mr McGrath foreshadowed an issue or contention that Mr Robinson was receiving instructions from Susanna or her husband Julian: T 247.1-.19. However, Mr McGrath did not persist in that line of questioning. Ultimately, I do not accept that Mr Robinson was unable to effectively communicate with Rade in English or misunderstood instructions from Rade.
3. Mr McGrath enquired of Mr Robinson as to whether he had obtained instructions from Rade that Dimce "had not held up his part of the agreement". This aspect of the cross-examination was somewhat messy: see T 252.5-255.1. Eventually, what emerged was Mr Robinson's acceptance that Rade did not express any "opinion" to him "about whether Dimce held up Dimce's part of the agreement": T 255 .3-.4. However, when asked why he had written in an email to Dimce dated 29 November 2021 that "clearly over time [Rade] has come to believe that you have not 'held up your part of the agreement'" (CB 687), Mr Robinson indicated that he was "simply using Dimce's words so that it was clear, a clear response": T 255.7-.9. That comment appeared to be referring to the email of Dimce (sent earlier on 29 November 2021) to which Mr Robinson was responding, in which Dimce stated "[m]y wife and I have held up our part of the agreement": CB 684. Whilst in context the relevant part of Mr Robinson's email related to the "Illawong house" (CB 686-687), the nature of the actual agreement being referred to was not clarified in cross-examination. Mr Robinson said he was not aware of "the existence of an agreement involving at least Rade and Dimce" at the time that he wrote the email: T 255.11-.13. Thus, what may be taken from it is limited. However, to the extent that it might be said to be relevant, I accept that Mr Robinson was simply relaying the effect of what Rade had told him in response to Dimce's claims.
4. Mr Robinson had previously had a "tenant/landlord" relationship with Rade arising out of the fact that he operated his accounting practice in one of Rade's commercial properties in Mullumbimby between 1974 and October 2003: CB 297[2]. It was initially through that relationship that Mr Robinson had contact with Rade. I accept his denial that his practice's tenancy in the building owned by Rade ended on bad terms: T 240.32-.47.

Susanna

1. Susanna was briefly cross-examined and her cross-examination was essentially limited to three points: see T 257-262. The first was described as a "Jones v Dunkel matter" arising out of the fact that Rade did not give evidence in the proceedings. When I noted that Susanna was not someone who was in a position to control or conduct the defence of the proceedings, the questioning was not pursued: T 257.30-258.13. I have otherwise dealt with the Jones v Dunkel issue below. The second point related to evidence of statements made by Rade to Susanna which appeared to relate only to an issue that had been abandoned. After I questioned the relevance, the questioning was not pursued: T 258.15-259.12. The third point related to a statement which Mr Trajchevski attributed to Susanna (which she denied) and the implications said to arise from it, to the effect that she considered it to her own advantage if the plaintiffs and their family were evicted from the Illawong Property: T 259.14-262.38. I have dealt this third aspect below in addressing Mr Trajchevski's evidence.
2. Susanna presented as being frank. In my assessment, her credit was not affected by the cross-examination in relation to the above-mentioned third issue. She was not confronted with any compelling material or prior inconsistent statement suggesting that her evidence should not be believed. I accept her evidence.

Factual overview

1. Before turning to the issues in dispute, it is helpful to set out a factual overview of the key events about which I do not understand there to be any serious dispute.

Early property holdings, including purchase of the Illawong Property (1967 onwards)

1. In 1967, Rade purchased a banana and avocado plantation in Mullumbimby: CB 41[7]. Upon finishing his secondary education in 1977, Dimce began working for his father on the plantation. While Dimce worked on the plantation until it was sold in or about 1980, he studied art in his spare time and aspired to pursue a career in the art world: CB 41[10]-[12].
2. In or around 1979 or 1980, Rade and Danica purchased an historic commercial building at 39-49 Burringbar Street, Mullumbimby known as the "Nelson Building": CB 42[14], 723[15]. The property appears to have been associated with or adjacent to another property having some frontage to Stuart Street: CB 308[43]. Dimce gives evidence that in 1984, Rade and Danica completed construction of the Mullumbimby Professional Centre (MPC) on part of this property at 97-99 Stuart Street, Mullumbimby. Seemingly in about 2016, the process was commenced to separate the land title for the Nelson Building and the MPC. The separation occurred in or about December 2018, with the Nelson Building and the MPC becoming respectively Lots X and X in DP XXXXX: CB 42[14], 170[7(c)].
3. The Nelson Building contains at least 21 shops, offices and residential apartments, while the MPC contains seven rentals plus a two bedroom family residential flat or unit (MPC flat): CB 42[14]. The MPC flat was used and occupied by the Stoyanovski family at various times when they were in Mullumbimby: CB 171[17].
4. Susanna moved to Sydney in 1980 to attend Sydney University, where she completed a degree in social work: CB 306[31].
5. In 1981, Dimce purchased a share in a multiple occupancy at Huonbrook (Huonbrook Property): CB 42[16]. The Huonbrook Property comprised approximately 14 acres of mountainous terrain and had a single dwelling on it. Dimce used the entirety of his life savings at that time (comprising of approximately $14,000) to purchase the share in the property: CB 41[13], 42[17]. While he owned his share in the Huonbrook Property, Dimce lived independently from his parents: CB 42[20].
6. In the latter half of 1984, Dimce sold his share in the Huonbrook Property for approximately $25,000 and returned to reside with his parents at their home, which at that time was on Main Arm Road, Mullumbimby: CB 42[22], 43[24]. At the time, he had been taking art lessons and had begun exhibiting in the local region: CB 43[23].

Dimce marries Valentina (2001)

1. In August 2001, Dimce travelled to Macedonia and met Valentina: CB 47[59]. Valentina was born in January 1970 in Macedonia: CB 110[1]. At the time, she was 31 years old and Dimce was approximately 42 years old.
2. On that same trip, Dimce asked Valentina to marry him and move to Australia: CB 48[59]-48[60]. Dimce returned to Australia in September 2001.
3. In November 2001, Dimce had travelled back to Macedonia and married Valentina under Macedonian law: CB 48[63], [66].
4. In August 2002, Dimce and Valentina arrived in Australia and stayed at the Illawong Property with Rade and Danica: CB 48[68]-49[70]. Dimce and Valentina have resided at the Illawong Property ever since.
5. Dimce and Valentina have three children, namely: 1. Rahela, born in 2004; 2. Nikita, born in 2007; and 3. Aleksandar, born in 2012: CB 118[32].

Rade has a stroke (2011)

1. In December 2011, Rade experienced a stroke incident (or perhaps two strokes in quick succession) whilst in Mullumbimby. Following several weeks of hospital treatment, he eventually returned to live at the Illawong Property where he was cared for by Danica, Dimce and Valentina: CB 55[117]-56[124], 313[70]-[71].
2. The stroke left Rade with hemiplegia (paralysis of one side of the body), expressive dysphasia (an inability to speak clearly) and dysphagia (difficultly in swallowing): CB 55[117], 304[9], 305[19].

Burringbar Street Property

1. In early 2014, commercial premises at 78-82 Burringbar Street, Mullumbimby, more particularly described as Lot X of Section X in DP XXXX (Burringbar Street Property), were purchased as an investment for approximately $1.3 million, with Rade and the plaintiffs each owning a half share as tenants in common and the plaintiffs owning their share equally as joint tenants: CB 467, 660. It appears that the property was purchased or held by the parties in a partnership (see e.g. CB 58[142]), however no detail of any partnership agreement was provided in the evidence: T 237.45-.47. The property consisted of three shops which, after renovations in 2015, became four: CB 58[142]-[144], [146], 467, 660. The Burringbar Street Property was sold for $2.35 million and settlement was to be effected on 8 March 2023: CB 300[31].
2. For accounting purposes, it appears that the total purchase cost of the Burringbar Street Property was in the order of $1,408,306: CB 667. Despite equal ownership of the property as between Rade and the plaintiffs, at least as at 30 June 2020, the lion's share of the cost of funding the property fell to Rade: CB 667.
3. Notwithstanding that, there has apparently been some dispute between Rade and the plaintiffs regarding the distribution of the sale proceeds. From the sale proceeds, Mr Robinson expected that: (a) a mortgage in favour of Westpac would be discharged ($70,484); (b) Rade's loan account would be repaid ($1,070,512 as at 30 June 2021): (c) Rade's partner account would be repaid ($308,263 as at 30 June 2021); (d) the plaintiffs' negative loan account or debt would be repaid (- $75,910); and (e) the balance, having regard to the equal ownership, would then be divided equally between Rade and the plaintiffs: CB 300[32]-[35]. One might think that a division of the sale proceeds ought to be effected on the basis that the positive and negative loan or debt amounts would be appropriately adjusted beforehand.
4. During the course of the hearing, Mr Bilinsky stated that the net proceeds of the sale, being a sum of $2,210,167.46, are held in trust for the parties: T 237.28-.29.
5. Without further detail of the terms of the partnership, it would appear that, based on legal ownership, after appropriate deductions the $2,210,167.46 amount ought to be distributed equally as between Rade's estate and the plaintiffs.

Appointment of attorneys and enduring guardian

1. On 14 May 2014, Rade appointed Mr Nicholls and Dimce as his attorneys (to act jointly and severally) under an enduring power of attorney: CB 468. Mr Nicholls accepted his appointment on the same day: CB 472. On 1 July 2014, Dimce accepted his appointment and, on 14 July 2014, the power of attorney was registered: CB 473.
2. Also on 14 May 2014, Rade appointed Danica as his enduring guardian, with Dimce being appointed as an alternative guardian: CB 474. Danica accepted her appointment on that day: CB 477. Dimce accepted the appointment on 1 July 2014: CB 479.

Rade's 2017 Will

1. On 14 June 2017, Rade executed a Will (2017 Will) in which, after payment of all debts, legacies, funeral and testamentary expenses and duties, he relevantly: 1. bequeathed to Susanna a $100,000 legacy; 2. gave the rest and residue of his estate to Dimce; and 3. stated that, if any of his children fail to attain a vested interest but leave children living at Rade's death, the share which their parent would otherwise have taken is to be distributed equally amongst them on reaching the age of 18 years.
2. In cl 5 of the 2017 Will, Rade gave his reasons for making no provision for Susanna beyond the $100,000 legacy as follows: (i) My wife and I have made adequate provision for her during our lifetime and she enjoyed the benefit of living in my former house at [XX] Maria Street Petersham rent free for many years. (ii) I have sought to achieve some equity in the gifts made by me and that the benefits of my estate will flow to my grandchildren; (iii) She is estranged from me having cut all communication with me and my wife in 2011 while my son DIMCE and his wife have been of significant support to my wife and I.

Danica's death

1. Following a diagnosis of non-Hodgkin's lymphoma in September 2017, Danica passed away in May 2018: CB 61[184], 62[195].

Rade's 2018 Will and Deed of Gift (2018)

1. On 19 November 2018, Rade executed another Will (2018 Will) in which, after payment of all debts, legacies, funeral and testamentary expenses and duties, he relevantly: 1. bequeathed to Dimce the Illawong Property and any assets which Rade owned in Macedonia; 2. stated his intention that the MPC is to be gifted to Dimce during Rade's lifetime, however, in the event that the gift had not taken effect at his death, he bequeathed the MPC to Dimce; 3. stated that the balance of his estate is to be divided between Dimce and Susanna in equal shares (assuming both survive Rade); 4. stated that, if any of his children fail to attain a vested interest but leave children living at Rade's death, the share which their parent would otherwise have taken is to be distributed equally amongst them on reaching the age of 18 years; and 5. stated that any gift under the Will which fails to take effect forms part of the residue of the estate: Exhibit P1.
2. Pursuant to a deed of gift dated 30 November 2018, Rade transferred the MPC to Dimce and Valentina as joint tenants: CB 565-571. The transfer was not ultimately effected until 6 February 2019: CB 573.

Deterioration of the relationship between the parties

1. Between 2002 and 2010, Susanna visited her parents on a weekly basis and observed the relationship between her parents, Dimce and Valentina: CB 310[52]. Susanna gave evidence, on which she was not challenged and I accept, that during those visits (CB 311[56]): … there was often tension, with everyone on edge. Jimmy was aggressive and demanding in his communication with my parents. This continued to be a problem in his ongoing relationship with my father after my mother's death.
2. It is apparent that between 2018 and 2021, the relationship between the parties (in particular between Rade and Dimce) deteriorated in a significant way: see e.g. CB 64[207]-[208]. This culminated in Rade moving into an aged care facility in Ballina in August 2021: CB 303[5]. Dimce and Valentina have not had any direct contact with Rade since at least then: CB 74[291]-[292], 140[151].
3. The context for the deterioration in the parties' relationship is said to involve various allegations made by Rade against the plaintiffs, including that they stole money from him, and were the subject of what is defined below as the "abuse issue". The plaintiffs gave evidence denying the truth of those allegations. However, as I note below, the parties indicated on the hearing that the abuse issue has fallen away and no submissions were made in relation to that issue. As the substance of the allegations were not relevant to any other issue in dispute, I will not make any further comment upon them.

Changes to attorneys and enduring guardian

1. The power of attorney executed on 14 May 2014 was revoked by Rade on 16 February 2021: CB 653. Mr Robinson was subsequently appointed as Rade's attorney.
2. Susanna was appointed as Rade's enduring guardian on 5 March 2021: CB 655-659. Julian was subsequently appointed as Rade's enduring guardian on 11 August 2021: CB 303[3] (albeit that the instrument of appointment was not adduced in evidence).

Rade's 2021 Will

1. The deterioration of the relationship between Rade and Dimce is marked by significant changes to Rade's testamentary intentions, reflected in a further Will executed on 14 May 2021 (2021 Will): Exhibit P1. After payment of all debts, legacies, funeral and testamentary expenses and duties, Rade: 1. bequeaths to Susanna any assets and property which Rade owns in Macedonia; 2. states that the balance of his estate is to be divided such that Susanna retains a half share of his estate in Australia and the remaining half is to be held on trust to be divided equally amongst those of the plaintiffs' children who survive Rade, upon each attaining the age of 21 years; and 3. states that, if Susanna fails to survive Rade, the share that she otherwise would have taken is to be divided between the plaintiffs' children who survive Rade, upon each attaining the age of 21 years.
2. Significantly, cl 7 of the 2021 Will states: 7. Having considered the extent of my estate and my responsibility to provide for my children I HAVE DECIDED to make no provision for my son DIMCE STOJANOVSKI as adequate provision has been made by me for DIMCE STOJANOVSKI during my lifetime.

NCAT Proceedings 2021 (Occupancy Proceedings)

1. On 18 November 2021, Dimce and Valentina received a notice (dated 17 November 2021) to vacate the Illawong Property from Rade's then solicitors: CB 74[293], 682-683. That notice was the catalyst for Dimce commencing proceedings in the NSW Civil and Administrative Tribunal (NCAT), which he did by an application filed on 13 December 2021: CB 705-722. The application sought (a) a declaration that the "agreement" between Rade and Dimce in respect of the Illawong Property was a "residential tenancy agreement" to which the Residential Tenancies Act 2010 (NSW) (RTA) applied, and (b) a declaration that the notice to vacate was not a valid termination notice pursuant to the RTA.
2. The application was apparently the first of two proceedings which Dimce commenced in NCAT. I will distinguish between the proceedings by referring to these proceedings commenced in 2021 as the "Occupancy Proceedings".
3. The Occupancy Proceedings were resolved by consent on 18 January 2022 with orders stating, inter alia, that the notice to vacate was not valid and the agreement between Rade and Dimce in respect of the Illawong Property was a residential tenancy agreement to which the RTA applied: CB 740-741. I will refer to the relief in these proceedings further below.
4. There was some dispute about the orders made by NCAT and, on 9 February 2022, a "Notice to Terminate Tenancy Agreement" was sent to Dimce by Rade's then solicitors, which required Dimce and his family to vacate the Illawong Property: CB 745-748.
5. In April 2022, Dimce and Valentina caused a caveat to be placed on the title of the Illawong Property: CB 749-750, 752.
6. On 30 August 2022, a lapsing notice in respect of the caveat was served on the plaintiffs' solicitors: CB 13[83], 332[185]-[186]. The plaintiffs commenced these proceedings two days later on 1 September 2022.

NCAT Proceedings 2022 (Appointment Proceedings)

1. In late 2022, Dimce made an application to NCAT naming Rade as the person the application concerned, apparently seeking review of Rade's appointments of Mr Robinson as his enduring attorney and Julian as his enduring guardian on the basis that Rade did not have capacity to make those appointments. On 23 November 2022, a notice of listing was sent to Rade care of O'Reilly & Sochacki Lawyers. The notice of listing was tendered in the proceedings and marked as Exhibit D2.
2. These proceedings appear to be the second proceedings commenced in NCAT by Dimce. However, the notice of listing document makes reference to a case number "2016/00391781". It is not clear on the evidence whether the application made by Dimce was an application filed in earlier proceedings involving Rade, although there is no need for me to determine that. To distinguish this application from the Occupancy Proceedings, I will simply describe these proceedings as the "Appointment Proceedings".

Rade's 2022 Will

1. On 15 December 2022, Rade executed another Will (2022 Will): Exhibit P1. In the 2022 Will, Rade: 1. bequeaths all of his assets in Macedonia to Susanna; 2. states that the residue of his estate is to be held upon trust for sale and conversion and, after payment of funeral debts, testamentary expenses and duties, to be held upon trust to be divided in the following shares: 1. one half share to Susanna; and 2. one half share to those of Rade's grandchildren as shall survive him and equally between them if more than one so survive; 1. states that if Susanna fails to survive him, the share which she would have taken is to be held upon trust for her husband, Julian; and 2. states that if both Susanna and Julian fail to survive him, then the share which Susanna would have taken is to be held upon trust for such of Rade's grandchildren as shall survive him and equally between them if more than one so survive him, upon them attaining the age of 21 years.
2. Significantly, Rade explains the lack of provision to Dimce in cll 7 and 8 of the 2022 Will as follows: 7. I have not made further provision for my son DIMCE STOJANOVSKI in this my Will as I have made substantial financial provision for my son during my lifetime which has included providing him with a commercial building in Mullumbimby to provide ongoing financial support for him during his lifetime, providing him with the opportunity to live in my family home at Illawong since 2002 and providing him with substantial direct financial support for both his own support and the support of his family. 8. I have also not made further provision for my son as my son has sought to take from me prior to my death my family home at [XX] Palmer Close, Illawong and has created conflict in our relationship such that I have been unable to return to live in my home which has required me to live in nursing home care causing me great distress and expense.

Living arrangements

1. There was no great precision in the evidence regarding exactly what the living arrangements were as between Rade and Danica on the one hand and the plaintiffs on the other between the purchase of the Illawong Property in 1987 and the present. However, there was some evidence that shone some degree of light on the issue.
2. According to Ms Prentice, Rade stated to her on a number of occasions (I infer on or after July 2014) that he preferred to live in Mullumbimby whenever possible, as he felt more "at home" in Mullumbimby and liked to be there "to keep an eye on things" (I infer on his property holdings in Mullumbimby): CB 171[18]. Ms Prentice gave evidence that (CB 171[19]-[22]): 1. Rade and Danica generally resided at the MPC flat, with the plaintiffs and their children residing at the Illawong Property. Nonetheless, she acknowledged that there were many times when the family were all together in one property or the other, and other times when they swapped over, with Rade and Danica at the Illawong Property and Dimce and Valentina in Mullumbimby. This was said to be a regular and normal practice that occurred several times a year, and would generally last anywhere from a couple of weeks to three or four months; 2. after Danica became ill, Dimce spent more and more time in Mullumbimby to assist his mother with Rade, as by then Rade was himself needing constant care; and 3. after Danica's death, the family (I infer Rade, the plaintiffs and their children) lived together at the Illawong Property, with regular visits to Mullumbimby to check on the properties there.
3. It appears that the alternating living arrangements were in place well prior to 2014. My understanding from the evidence is that, at least up until 2009, Dimce, Valentina and their children regularly travelled to Mullumbimby to live in the MPC flat. However, in or about 2009, when Rahela was starting school, it seems that the plaintiffs and their children were more often living in the Illawong Property: e.g. CB 59[165].

Commercial arrangements

1. Ms Prentice described the Stoyanovski family's three commercial property partnership arrangements as follows: 1. the Nelson Building (which until December 2018 included the MPC) was the subject of a partnership between Rade and Danica (referred to as "R & D Stoyanovski") in equal shares, which devolved to Rade as survivor on the death of Danica in May 2018; 2. the ownership of the Burringbar Street Property involved the partnership referred to above, whereby the property was held in a three-way arrangement with Rade having a half share and the plaintiffs each having a quarter share; and 3. after separation of title for the Nelson Building and the MPC, a further partnership was set up to manage the MPC, which was then owned by the plaintiffs in equal shares: CB 169-170[7].
2. According to Ms Prentice, whose evidence I accept (CB 172[34]): 34. The family basically ran their rental businesses as a single family concern, with the living expenses for both households paid from any of the various partnerships, generally the one with the most money in it, that being the R & D Stojanovski Partnership, at Rade's request.

Agreed list of issues

1. In preparation for the hearing, the parties provided an agreed list of real issues which contained the following. 1. Were any of the promises or representations pleaded made by the defendant to the plaintiffs or either of them? 2. If so: 1. which promises or representations were made; and 2. what were the terms of the promises or representations made? (Together, representation issues) 1. Were the promises or representations mere statements of revocable intention or were they of a binding nature? (Binding effect issue) 2. Did the plaintiffs rely upon the promises or representations? (Reliance issue) 3. Did the defendant know (actually or otherwise) that the plaintiffs were relying upon the promises or representations? (Knowledge issue) 4. Was the plaintiffs' reliance on the promises or representations to their detriment? (Detriment issue) 5. Has the defendant resiled from the promises or representations or otherwise failed to act to avoid that detriment? (Resiling issue) 6. Is it unconscionable for the defendant to resile from the representations? (Unconscionability issue) 7. Are there countervailing benefits for the plaintiffs or either of them that the Court should take into account? 8. If so, what are they and how should the Court take them into account? (Together, countervailing benefits issues) 1. Did the plaintiffs act to cause physical and emotional abuse of the defendant, misuse of the defendant's income or creation of a hostile environment requiring the defendant to obtain alternate accommodation? (Abuse issue) 2. Are the plaintiffs estopped from claiming their occupation of the Illawong Property arises from the representations and inducements allegedly made by the defendant by the application or orders in the Occupancy Proceedings? (NCAT issue) 3. What relief, if any, should the Court provide? (Relief issue)

Abandoned issues

1. On the hearing, the parties confirmed that the abuse issue and the NCAT issue have fallen away and need not be determined: T 210, 302. While Mr Bilinsky did not press the NCAT issue on the basis of it supposedly not being "of any moment" (T 302.19), I propose to make some observations in relation to the issue.
2. I otherwise propose to deal with the remaining issues in dispute in turn, by first setting out the facts upon which each party relies in respect of each issue and their respective submissions, after which I will set out my findings.

Cross-claim

1. The matter was listed for hearing to determine the claims for relief in the plaintiffs' statement of claim. In the DOS, Mr Bilinsky foreshadowed the filing of a cross-claim to obtain vacant possession of the Illawong Property. On the first morning of the hearing, Mr Bilinsky sought leave to file and rely upon the cross-claim: T 17.1-.4. He indicated that it was solely referable to what would transpire in the event that the Court were not to grant the relief which the plaintiffs sought: T 17.6-.9.
2. Mr McGrath opposed the filing of and reliance upon the cross-claim: T 17.14-.17. Following debate on the issue, in circumstances where no additional evidence was being relied upon and being satisfied that there was no irremediable prejudice to the plaintiffs in Rade seeking such relief, I permitted the cross‑claim to be filed for the sole purpose of formalising what is to happen with the Illawong Property in the event that the plaintiffs' claim were dismissed: T 18.37-19.8.

Rade's capacity, expert evidence and Jones v Dunkel submission

1. Mr McGrath foreshadowed that he proposed to make a submission based on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) in respect of the failure of Rade to file affidavits in compliance with previous directions from the Court: T 217.17-.18. He clarified that the submission did not contend that Rade could give evidence at the time of the hearing: T 217.18-.19.
2. It is true that, apart from an affidavit verifying the defence affirmed 8 November 2022, no affidavit evidence had been adduced in the proceedings from Rade himself.
3. It is clear that, in the matter's preparation for hearing, the parties to some degree attempted to put on evidence dealing with the issue of Rade's capacity.
4. It will be seen below that I rejected some expert evidence adduced by the plaintiffs which attempted to address Rade's capacity. It is appropriate to set out some of the context regarding Rade's capacity and health in order to explain my reasons for rejecting that expert evidence and also my approach to addressing the Jones v Dunkel submission made by Mr McGrath.

Rade's capacity and health

1. As noted above, Rade suffered a stroke in 2011 and, as a consequence, had ongoing dysphasia which made it difficult for him to communicate clearly and, at least to some degree, made it difficult for others to understand him: CB 55[117], 304[9], 305[19]. Since 2014, Rade has had attorneys and enduring guardians appointed for him (albeit with some changes to those appointments).
2. There are relatively few contemporaneous documents which shed light on Rade's medical condition. However, based on the contemporaneous medical records in evidence, I note the following.
3. On 18 March 2019, it appears that Dimce attended the Mullumbimby Medical Centre with Rade, who was presenting with hypertension. The consultation notes record that, at that stage, Rade lived "occasionally in Sydney": CB 679.
4. On 21 May 2020, Rade applied for approval to receive aged care under the Aged Care Act 1997 (Cth): CB 598-600. He underwent an assessment by the Aged Care Assessment Team (ACAT) at the South Eastern Sydney Local Heath District: CB 595. On 22 May 2020, a recommendation was made that he be approved to receive subsidised high level permanent residential care: CB 602. Approval for permanent residential care was given by the Department of Health on the same day: CB 595-596.
5. The summary generated by the ACAT assessor, Jennifer Vaessen, records a degree of background information to the matter, which information appears to have been given to the assessor by Dimce: CB 601-602. Part of the background given by Dimce was that Rade continued to manage his property business with the help of Dimce, alternating between the two family homes in Illawong and Mullumbimby over the years: CB 601. At that stage (May 2020), Dimce had indicated that Rade was reliant upon his family for transport, shopping, meals, domestic duties, finance/banking, social support, home maintenance and social interaction. Dimce also indicated that he and Valentina had been providing direct care daily while living in Illawong, and there was no indication of caregiver strain at that stage: CB 601. Rade had grown socially withdrawn and, on testing, was exhibiting significant signs of depression over the prior week: CB 602.

Directions for evidence

1. As noted above, the proceedings were commenced on 1 September 2022. On 13 September 2022, the plaintiffs approached the Court with an application to have the operation of their caveat on the Illawong Property extended pursuant to s 74D(2) of the Real Property Act 1900 (NSW). (I pause to observe that the application to extend the operation of the caveat under s 74D(2) appears to have been misconceived as that applies to the lodgement of caveats against primary applications under s 74B.) The application was supported by an affidavit of the plaintiffs' solicitor, Kathryn Lee Rundle, affirmed on 12 September 2022. The affidavit contains a copy of the caveat that had been lodged by the plaintiffs through PEXA Exchange on 22 April 2022, which claimed an interest in the Illawong Property pursuant "an agreement" made between the plaintiffs and Rade "that the Caveator [i.e. the plaintiffs] would inherit the Land in consideration for the Caveator providing domestic and/or personal care to the Registered Owner [i.e. Rade]; (2) resulting and/or constructive trust arising from financial contribution".
2. Kunc J made orders extending the operation of the caveat and, relevantly, orders for: Rade to file and serve a defence and any cross-claim by 30 September 2022; the plaintiffs to serve their affidavit evidence in chief by 21 October 2020; Rade to serve his affidavit evidence in chief by 11 November 2022; and the plaintiffs to serve their affidavit evidence in reply by 2 December 2022. The matter was stood over for further directions before the Equity Registrar on 12 December 2022.
3. On 8 November 2022, Rade filed his defence.
4. On 11 November 2022, it appears that Registrar Hedge was requested to relist the matter to address a default in the timetable orders. The Registrar relisted the matter for directions on 17 November 2022.
5. However, on 15 November 2022, it appears that the parties agreed to vary the timetable and Registrar Walton made orders requiring: 1. Rade to file and serve any cross-claim and to provide to the plaintiffs all reports relating to his capacity made in the prior 12 months by 24 November 2022; 2. the parties to participate in a private mediation on or before 17 December 2022; and 3. in the event that the matter did not settle at mediation: the plaintiffs to serve affidavit evidence in chief by 24 January 2023; Rade to serve affidavit evidence in chief by 31 January 2023; and the plaintiffs to serve affidavit evidence in reply by 14 February 2023. The matter was listed for further directions before the Registrar on a convenient date after 15 February 2023.

Professor Peisah - expert evidence

1. For the purposes of the plaintiffs' notice of motion to seek to have Rade medically examined, they had engaged Professor Carmelle Peisah to prepare a report and had provided written instructions to her on 24 March 2023.
2. Subsequently, on 28 June 2023, the plaintiffs' solicitors provided a letter of instruction to Professor Peisah for a "renewed engagement": CB 219. The renewed engagement pertained to the provision of an expert opinion in relation to the following matters: Decision-making Capacity 9. Did Rade Stoyanovski have the requisite decision-making capacity; (a) in March 2021 to terminate the enduring power of attorney dated May 2014 granted to William Nicholls and/or Dimce Stojanovski?; (b) in March 2021 to terminate the enduring guardianship of Dimce Stojanovski?; (c) in March 2021 to grant an enduring power of attorney to John Robinson?; (d) in March 2021, to grant an enduring guardianship to Susanna Stoyanovski (and later in September 2021 to Paul Julian Moore)?; (e) to instruct Castrikum and Adams Legal, (Rade's former solicitor), to serve an eviction notice on the plaintiff to vacate the lllawong home on 17 November 2021 and/or 11 May 2022?; and (f) on 8 November 2022 to instruct O'Reilly & Sochaki to defend the Supreme Court proceedings? Undue Influence 10. Does it appear that Rade Stoyanovski was giving instructions in relation to these Supreme Court proceedings under the undue influence of other persons? Vulnerability and Conflict of Interest 11. How do you consider Rade's vulnerability to exploitation due to his circumstances and in combination with conflicts of interests (if any) presented by his family members and representatives?
3. On 26 July 2023, Professor Peisah provided the plaintiffs' solicitors with a report outlining her opinion on those matters: CB 224.
4. Mr McGrath sought to read the expert report of Professor Peisah, although Ms Boyle objected to it: T 207.10-.14.
5. Mr McGrath initially sought to press the report for what he described as limited purposes, indicating that the report addressed two reports that had been annexed to the affidavit of Susanna (being a report of Dr Lynne Ridgway, a clinical neuropsychologist, dated 10 December 2021 (CB 691-700) and a report of Dr Anthony Havyatt, seemingly a general practitioner, dated 22 June 2022 (CB 751)): T 207.18-.40. Ms Boyle was content for me to proceed on the basis that none of the reports would be admitted: T 208.9-.12.

Jones v Dunkel submission

1. In essence, the Jones v Dunkel submission was that there was a window of time between 8 November 2022, when Rade verified his defence to the proceedings, and 31 March 2023, when the consent to act as tutor was filed, during which Rade was competent to give evidence, there were subsisting orders for him to give affidavit evidence and his failure to do so during that period ought to give rise to a Jones v Dunkel inference.
2. Mr McGrath handed up extracts of the series of directions made by the Court, commencing from 11 November 2022 and concluding on 5 April 2023, to which I have referred above. That extract was marked MFI-2: T 265.6.
3. In trying to understand the precise nature of Mr McGrath's submission, I sought clarity as to whether he was submitting that I should infer that there was some conscious choice made not to adduce evidence from Rade. Mr McGrath confirmed he was not suggesting that. Rather, he submitted that I should infer that evidence adduced from Rade "would not have helped him": T 306.12-.22.
4. In response to further probing from me as to why a Jones v Dunkel inference could be drawn, Mr McGrath submitted that there were "unexplained breaches of the Court orders": T 306.36-.43.
5. Mr Bilinsky noted that whilst directions were being made in this Court, the Appointment Proceedings in NCAT were running in parallel: T 307.16-.22. Mr Bilinsky further submitted that no adverse inference could be drawn in circumstances where Rade had denied in his defence that the representations occurred as pleaded by the plaintiffs. He submitted that Rade was not obliged to put on evidence with some form of competing form of conversations, citing Fiorenza v Fiorenza [2024] NSWSC 549 (Fiorenza): T 308.14-.25.
6. I addressed the principles regarding the rule in Jones v Dunkel in Wang v Yu [2023] NSWSC 1182 at [123]-[142]. Those principles need not be recited here.
7. To the extent that Mr McGrath pressed a submission based on Jones v Dunkel in respect of the failure to adduce affidavit evidence from Rade, I reject that submission.
8. As early as February 2021, Dimce had concerns regarding Rade's capacity: CB 69[256]. As noted above, he seeks review of Rade's appointments of Mr Robinson as his attorney and Julian as his enduring guardian in the Appointment Proceedings on the basis that he lacked capacity to make those appointments in 2021. In these proceedings, the plaintiffs initially sought a direction for Rade to provide to them all reports relating to his capacity made in the year prior to November 2022. They subsequently sought to have Rade submit to a medical examination. Thus, Rade's mental capacity has been a consistent issue throughout, and indeed prior to, these proceedings.

Application to NCAT and consent orders made

1. On 13 December 2021, the Dimce commenced the Occupancy Proceedings in NCAT seeking the following orders (see CB 13[78], 330[173], 710): 1. An order declaring pursuant to section 11 of the Residential Tenancies Act 2010 (NSW) (the Act) that the agreement between Rade Stoyanovski and Dimce Stojanovski in respect to the premises at [XX] Palmer Close Illawong NSW 2234 is a residential tenancy agreement to which the Act applies. 2. An order declaring pursuant to section 111 of the Act that the Notice to vacate dated 17 November 2021 is not a valid termination notice pursuant to the Act.
2. In his statement (also dated 13 December 2021) which he attached in support of the application, Dimce relevantly stated the following (CB 723[5]-726[56]): 5. Immediately after completing my HSC Ray offered me a job working on his banana and avocado plantation at Cooper's Lane, Main Arm, Road. Mullumbimby. 6. I began work on the Monday after my last week of school. 7. Three (3) years later Ray offered me the opportunity to take over the plantation with Ray staying on as advisor. 8. I rejected Ray's offer and my employment ended. 9. In 1985, at Ray and Danica's request I moved back into the family house at [XX] Main Arm Road, Mullumbimby NSW (the Main Arm Road Property). 10. I was now in my mid-twenties and had committed to a career as an artist. The main topic of discussion with Ray and Danica was my future, with my parents assuring me that they would be willing to provide for my eventual family in their inheritance including a home and financial security if necessary. 11. In 1986, I travelled to Macedonia, in then Yugoslavia, staying with relatives before returning to Australia three months later. 12. My parents had sold the Main Arm Road Property, and were renting a house at Avocado Court, Mullumbimby, to which I returned. 13. I moved out of my parents' house in 1987 and began living in various share houses in the Northern NSW area for approximately the next ten years. 14. I maintained contact with Ray and Danica but had no financial support from them during the period spanning the late 1980's to late 1990's. 15. In September 1987, Ray and Danica purchased the property at [XX] Palmer Close, lllawong, New South Wales more particularly described as certificate of title folio [XX]/[XXXXX] (the Property) for $180,000.00. 16. Ray had previously purchased the historic Nelson Building in Mullumbimby in 1979/80, and had built the Mullumbimby Professional Centre (the Mullumbimby Professional Centre) on Lot [X] of the property, in 1982-4 (the Nelson being on Lot [X] ). 17. In late 1997, at Ray and Danica's invitation, I returned to live with Ray and Danica at flat 9 of the Mullumbimby Professional Centre. 18. By this stage Ray and Danica were only occupying the flat at the Mullumbimby Professional Centre part time because they had relocated to the Property. They thus committed to an endless cycle of driving between Mullumbimby and Sydney on a monthly basis. 19. When Ray and Danica were in Mullumbimby, I would share the flat at the Mullumbimby Professional Centre for about a week. before they would return to the Property. Three weeks later they would appear again and the cycle would repeat. 20. My discussions with my parents regarding my future ensued during the periods we spent together, be it at the flat in Mullumbimby or at the Property during my visits there. Ray and Danica, having expanded their holdings considerably, now elaborated on their original offer of support, saying, "we now have more than we ever dreamed of materially, all we lack is grandchildren to leave it to". They made explicit their wish to leave the Property to me and my family-to-be. 21. My concerns were that as an artist, I may be able to support myself, but a family would be more difficult to support, and especially the purchase of a house. My parents reiterated that they were prepared to offer me "a stable financial base", and, as one of two children, my share of the inheritance would guarantee a house and security for my family. Furthermore, they added that they were prepared to offer myself and my wife-to-be, employment in the family business, while still allowing me to pursue art, with the added security of a regular income, and a guaranteed home. 22. In mid 2001, I travelled to Macedonia and stayed in the city of my birth, Bitola, with my uncle, Danica's elder brother, for a period of three months before meeting my wife to be, Valentina, in August of the same year. 23. A whirlwind romance followed and Valentina accepted my proposal of marriage in September. I had to return to Australia as my visa expired, but promised to return once I had renewed and taken care of matters ln Australia. 24. I stayed with Ray and Danica at the Property, taking the opportunity to define our understanding and agreement further with my parents. 25. In the meantime, I had made a commitment to marry Valentina, and she to return to Australia as my wife. 26. In September 2001, my parents confirmed their offer to me - they were prepared to support the marriage by employing us in the family business and they offered us the Property to live raise our family in and said that we would inherit the house in return for my wife and I looking them [sic] in their declining years. I agreed. 27. In reliance thereof, I returned to Macedonia with this assurance, and proceeded with my relationship, marrying Valentina under Macedonian law on 18 November 2001. 28. Valentina and I then moved into an apartment in Bitola and began the process that would end with Valentina obtaining a visa to travel to Australia with me, finally arriving back in Australia in August 2002. 29. After our return to Australia, we stayed at the Property with Ray and Danica. 30. The offer made by Ray and Danica to me was repeated. 31. Valentina and I agreed. 32. As far as where my parents would live, and where we, their younger counterparts would live, we agreed to share both properties (the Property and the Mullumbimby Professional Centre) and accommodate each other in every way possible. 33. Our wedding took place on 30 March 2003, and so began our life together as an extended family unit. 34. Danica and Valentina had an excellent relationship and Danica gladly made way for her younger counterpart, as Valentina took over most of the cooking, cleaning and maintenance duties of the household, and in doing so, allowed Danica to relax her schedule of looking after Ray. 35. During this time, my parents spent a lot of time with Valentina and myself, getting to know their new daughter in law. The relationship was amicable, and Ray was pleased that after all was said and done, he could retreat to Mullumbimby, and work on projects at his property without the pressure of having to return to lllawong in due course. 36. The pay-off for Ray was that he felt secure in the knowledge that we were living at the Property, and that he was relieved of the responsibility of looking after the house, while Danica was happy, not only that she had gained a wonderful daughter in law, but that she too was relieved of a heavy workload being the woman of the house at two residences. 37. As far as the Property was concerned, Ray insisted on paying all the rates, insurance etc explaining that he had built a house for [Susanna] in 1997-98, and that he did the same for her. He qualified his statement saying that while she lived alone, we, at least part of the time, lived with them, my parents. 38. My wife and I also travelled to Mullumbimby often and assumed caretaker duties at the property when there, and back to the Property, swapping places and overlapping with Ray and Danica all the time. 39. Our children were born as follows: (a) Rahela was born on [X] July 2004; (b) Nikita was born [X] April 2007; and (c) Aleksandar was born on [X] March 2012 40. From 2009 onwards on our visits to Mullumbimby as a family were restricted mainly to school holidays, as our first born Rahela began school, necessitating that our primary residence became the Property for most of the year. 41. In 2011 Ray suffered a stroke. 42. In May 2014, Ray executed an Enduring Power of Attorney (Financial) appoint[ing] me and his tong term accountant, Bill Nicholls, as attorneys. 43. At the same time Ray executed an Appointment of Enduring Guardian, with Danica named as his Enduring Guardian, with me as the substitute, should Danica pass away. 44. Since Ray's stroke, Danica's workload had increased exponentially. I was able to relieve Danica when present, but when absent, Ray's dependence on her as full-time carer was telling. 45. In spite of this, they insisted on living on their own as much as possible and Mullumbimby was their preferred location, spending the last two years of Danica's life mostly there. 46. The extra load on Danica unfortunately, eventually led to her health failing. 47. Danica passed away on 1 May 2018. 48. Following Danica's passing Ray lived with my wife and my family at the Property, full time. This was however, interspersed with regular trips to Mullumbimby, especially throughout 2018 and 2019 at Ray's insistence. With the arrival however, of 2020, and the advent of Covid 19, we were prevented from continuing our habit of regular travel between Illawong and Mullumbimby. 49. By early 2020, Ray's mood had soured considerably when restrictive measures on travel were imposed due to the nascent Covid-19 crisis. Since the time of Danica's death, Ray had been travelling regularly to Mullumbimby chaperoned by myself. 50. Since Ray's stroke, Valentina and I took over much of the costs of renovations at the Property, including: (a) $7,000 as part of the cost of a new wooden floor; (b) replacement of a section of roof over a living area at back of the property; (c) replacing all lighting throughout the house; (d) 3 new toilets and other plumbing; (e) a new clothesline; and (f) paying for general maintenance and repairs 51. I also paid in the vicinity of $8,000 on 8 tons of sandstone boulders and materials in order to construct a retaining wall at back of the property. 52. Ray left the Property in January 2021 of his own accord and has not returned. 53. In February 2021 Ray revoked the Enduring Power of Attorney (Financial) made in May 2014. 54. In March 2021 Ray also executed a new Appointment of Enduring Guardian. Ray also executed an Enduring Power of Attorney appointing John Robinson (although I have not seen a copy of this document). 55. Since Ray left the Property Valentina and I have taken over payments of all outgoings from the property, including rates, electricity and water the exception being insurance, which continues to be paid automatically by Ray, according to a prior agreement between himself and the CBA. 56. John Robinson (in his capacity as Ray's attorney) and I, in an email exchange, agreed that I would continue with paying outgoings at the property ( electricity, rates, water), while he would take over the payments of the Nelson Building.

Is there an issue estoppel?

1. In Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 (Blair), Dixon J (as his Honour then was) explained issue estoppel in the following terms (at 531-532): A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
2. An issue estoppel will only arise in respect of those matters which a primary decree, order or judgment necessarily established as the legal foundation for the decision and nothing but that which is legally indispensable to the conclusion is thus finally closed or precluded: Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 (Ekes) at [112] per Bathurst CJ (Beazley P (as her Excellency then was) agreeing), citing Blair at 531-532.
3. There is some authority for the proposition that decisions of NCAT are capable of creating an issue estoppel in respect of those issues which were essential for the Tribunal's determination: see Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 at [180] per White JA; Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [39] per White J (as his Honour then was); see also Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283 at [62]-[85] per Weinberg JA.
4. It has also been accepted that a consent judgment could give rise to an issue estoppel: Ekes at [111]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib) at [186] per McColl JA (Giles and Campbell JJA agreeing). In such a case, the Court will examine all evidence that is available and admissible and, with the aid of such material, ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the actual decision assented to: Ekes at [112]; Habib at [186]; Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq. In these proceedings, the extent of that evidence appears to be Dimce's NCAT application commencing the Occupancy Proceedings (including attached documents, consisting of recent correspondence with Rade's solicitors and Dimce's statement dated 13 December 2021 extracted above) and the orders themselves.

Summary

1. The plaintiffs' case is that Rade and Danica (but for the most part Rade) made various representations to them over what appears to be a period of 17 years (with repetition of certain representations continuing after that time). The plaintiffs' pleading and, to some extent, Mr McGrath's submissions, referred to at least some of the representations by certain descriptors. While I will set out the contents of each representation further below, in summary, the representations were said to have occurred as follows: 1. the first representation, made in the latter half of 1984 (I will refer to this as the Security Representation); 2. the second representation, made in or around early 1985 (I will refer to this as the Family Business Investment Representation); 3. the third representation, made in late 1987 and referred to as the "Investment Representation" (I will refer to this as the Illawong Investment Representation to distinguish it from the second representation); 4. the fourth representation (although on one view it consists of two representations), made at a time not precisely specified, but appears to be in 1998, and referred to as the "Occupation Representation" and "Inheritance Representation" (I will refer to this as the Occupation and Inheritance Representation); and 5. the fifth and sixth representations, made in or about September 2001 and referred to at times, including in the plaintiffs' pleadings, collectively as the "Confirmation Representation" (I will refer to these respectively as the Employment Representation and the Care and Management Representation).
2. A further "seventh representation" is said to have been made but, as will be seen below, it is essentially asserted as being a repetition of the fourth to sixth representations (I will refer to this as being the Repetition Representation).
3. In his closing submissions, Mr McGrath identified the seven representations from the statement of claim upon which the plaintiffs rely, at least to some extent, in making out their estoppel case. He prefaced the identification of those representations by saying (T 265.48-266.4): MCGRATH: ... The representations relied on changed over time. They were made by four persons, being the two plaintiffs, Rade and Danica. The way the claim is pleaded represents how matters occurred. It describes an ambulatory arrangement arising out of a number of representations and promises made over a number of years. They resulted, or they crystallised, into an arrangement that Dimce and Valentina acted on in - well, in a number of ways...

First representation - the Security Representation

1. The Security Representation is pleaded at CB 4[13] (T 266.7-.29): 13. The defendant represented to the first plaintiff that the defendant would provide the first plaintiff with a house if the defendant sold his property and returned to the family. Particulars a) The representation was oral and made at Mullumbimby in conversation between the first plaintiff and the defendant in Macedonian language. b) The material terms of the representation were that the defendant would personally guarantee the security of the first plaintiff's future if the first plaintiff returned to the family. Further, if the first plaintiff sold his property the defendant and Danica would provide the first plaintiff with a house.
2. In relying upon this representation, Mr McGrath made the following qualification (T 266.21-.24): MCGRATH: I rely upon it, but I'm not going to tell your Honour that promising a house without more is itself any - something that gives rise to an estoppel. Obviously it does not. But it is a part of the eventual family arrangement that was made.
3. The evidence supporting this representation was said to be at CB 42[21], where Dimce deposed that Rade told him: "I personally will guarantee the security of your future if you return to the family. Sell your property and your mother and I will provide you with a house."
4. According to Dimce, that representation was made during the time that he owned his share in the Huonbrook Property, which he sold in the latter half of 1984: CB 42[20]-[22].
5. In examination in chief, Dimce explained (T 49.35-.38): A. Ray wanted me to return to the family. He wanted me to be a part of the family. And he said to me, "If you return to the family, I will guarantee the security of your future. Sell your property and we will see that you get a house, and we'll, we'll take care of you".
6. Dimce stated that this was said by Rade "on many occasions": T 49.41.

Second representation - the Family Business Investment Representation

1. The Family Business Investment Representation is pleaded at CB 4-5[17] (T 267.1-.10): 17. … the defendant represented to the first plaintiff that if the first plaintiff invested his savings with the defendant and Danica in the family business then he would receive his inheritance. Particulars a) The representation was oral and made at Mullumbimby in conversation between the first plaintiff and the defendant in Macedonian language. b) The material terms of the representation were that if the first plaintiff invested his savings with the defendant and Danica this would guarantee that the first plaintiff would receive his rightful share of the inheritance.
2. The evidence supporting this representation was said to be at CB 43[26]-[27] (see also POS [18]), where Dimce deposed that Rade told him: "Your savings will be most secure as part of the overall family estate, and in that way will grow and become a lasting part of your inheritance." … "If you invest your money with R&D Stoyanovski, not only will it be secure but I will also pay you far greater interest than anyone else will." … "Investing your savings with your mother and I is your guarantee that you will receive your rightful share of the inheritance when the time comes."
3. In examination in chief, Dimce recalled that (T 50.28-.36): A. ... My father said to me - there were high interest rates at the time, and he said he would improve on those interest rates if I was to invest the money with him and my mother, or R and D Stoyanovski, as he put it, and that the money would be most secure with them.
4. This representation was said to have been made in around early 1985, in response to Dimce informing his parents of his plans to move to Sydney and use his savings (amounting at that time to $25,000) to pursue his studies and career as an artist: CB 43[26].

Third representation - the Illawong Investment Representation

1. The Illawong Investment Representation is pleaded at CB 5[24] (T 267.12-.23): 24. In late 1987, the defendant represented to the first plaintiff that the sum of $25,000 paid to the defendant by the first plaintiff had been invested in the renovation of lllawong and had grown to $50,000 (Investment Representation). Particulars a) The representation was oral and made at lllawong in conversation between the first plaintiff and the defendant in Macedonian language. b) The material terms of the representation were that the sum of $25,000 invested by the first plaintiff had been invested in the renovation of lllawong and had grown to $50,000.
2. Mr McGrath submitted that the supporting evidence for this representation can be found in Dimce's affidavit, where he deposed (CB 45[42]): 42. By late 1987, three years after the investment of my savings with R&D Stoyanovski, my parents informed me, that true to their promise of paying higher interest rates than anyone else on my savings, my $25,000, "had now grown to $50,000" and that as the lllawong Property was incomplete when purchased, my money would be used to fund part of the proposed renovations, thus ensuring my interest in the property.

Fourth representation - the Occupation and Inheritance Representation

1. The Occupation and Inheritance Representation is pleaded at CB 6[29] (T 267.25-.28): 29. The defendant represented to the first plaintiff that if the first plaintiff married then he and his family could live in lllawong (Occupation Representation) and the first plaintiff would inherit lllawong (Inheritance Representation). Particulars a) The Occupation Representation and the Inheritance Representation were each made at lllawong and Mullumbimby on multiple occasions in conversation between the first plaintiff and the defendant and Danica in the Macedonian language. b) The material terms of the Occupation Representation and Inheritance Representation were that the defendant and Danica have completed the renovations and could now provide a house for the first plaintiff to raise a family in just as they said they would. It was up to the first plaintiff to marry and move in. lllawong is for the first plaintiff and his future wife to raise their children in and the first plaintiff will inherit lllawong after the defendant and Danica die.
2. Dimce deposed that Rade or Danica said to him, in what appears to be 1998, (CB 47[56]): "We have now provided you with the house to raise your family in just as we said we would. All that remains is for you to get married and to move in. This house is for you to raise your children in, and you will also inherit the house after we die, and so ensure that it goes to our grandchildren."
3. In his affidavit in chief, Dimce gave no detail of any discussions with Valentina regarding this representation. He simply indicated that he met Valentina in August 2001 and, when he returned to Australia in September 2001 and stayed with his parents at the Illawong Property, he explained to them that he had made a commitment to marry Valentina and had shared with her "their undertaking to support our marriage and that she, in turn, had agreed to return to Australia with me as my wife": CB 48[60].

Fifth and sixth representations - the Employment Representation and the Care and Management Representation

1. The Employment Representation and the Care and Management Representation, as Mr McGrath explained them, are pleaded at CB 6-7[32]-[33] (T 267.38-270.2): 32. The defendant and Danica represented to the first plaintiff that if he married Valentina (the second plaintiff) and brought her back to Australia then in addition to the Occupation Representation and the Inheritance Representation the defendant and Danica promised to employ the first and second plaintiffs in the family business. 33. In return the defendant and Danica requested that, and the first plaintiff promised to, look after the defendant and Danica in their declining years and manage the family property investment business when the defendant was no longer capable of doing so. Particulars a) The confirmation was made in or about September 2001 at lllawong in conversations between the first plaintiff and the defendant and Danica in the Macedonian language. b) The material terms of the confirmation were that if the first plaintiff returned to Macedonia and brought the second plaintiff back as his wife they would both be employed in looking after the family business and the family could live at lllawong and the lllawong would be theirs and the first plaintiff would inherit it (the Confirmation Representation).
2. Mr McGrath submitted that it was intended that Dimce would pass on the Employment Representation to Valentina. He further submitted that, while this representation has much in common with the Occupation and Inheritance Representation, it adds that Rade and Danica would employ both Dimce and Valentina in the family business: T 267.38-.48.
3. Mr McGrath proceeded to make some attempt at distinguishing between the elements of the representations thus far, which appeared to consist of the plaintiffs' employment, the "general inheritance representation" and "the house": T 268.1-.5. It was said that there is no complaint by the plaintiffs as to the first two elements, only the latter.
4. Dimce stated that his parents confirmed that they would "support the marriage by employing my future wife and I in the family business, affirming their promise that my wife-to-be and I would move into, live, raise our children in and eventually inherit the Illawong Property": [3] CB 47[59]-48[61]. Dimce deposed that his parents told him (CB 48[61]): "You just return to Macedonia and bring your bride back with you to Australia. Know that we will employ you in the business, that your family will live in this house and that the house will be yours and you will inherit it."

Seventh representation - the Repetition Representation

1. The Repetition Representation is pleaded at CB 8[38] (T 272.20-.22): 38. The defendant and Danica repeated the Occupation Representation, the Inheritance Representation and the Confirmation Representation to the first plaintiff and to the second plaintiff in person.
2. Mr McGrath characterised this representation as a repetition of the Employment Representation and the Care and Management Representation: T 272.17-.18. He then indicated that the following pleaded facts (CB 8[39]-[40]) were connected with the Repetition Representation (T 272.23-.32): 39. The defendant and Danica offered the plaintiffs a combined annual income of about $32,000. 40. The plaintiffs promised to look after the defendant and Danica and began to do so straight away.
3. Despite what Mr McGrath appeared to submit in closing, it is apparent from the plaintiffs' pleaded case and their affidavit evidence that they assert the Occupation and Inheritance Representation was also essentially repeated as part of the Repetition Representation.
4. Dimce and Valentina gave evidence in relation to the Repetition Representation at CB 49[71]-[72] and CB 113-117, respectively. It is unnecessary to recount their evidence in detail, save to say that the substance of the previous representations had been repeated by Rade and Danica over the course of a number of conversations following Valentina's arrival in Australia.
5. I should not that, at various points in her evidence in particular, Valentina appeared to indicate that Rade would occasionally tell her not merely that he would enjoy having grandchildren, but that he would actually provide inheritance for them: CB 120[41]; T 132.4-.12, 145.10-.22. However, this was qualified by her understanding that Dimce's parents expected any inheritance to go through Dimce and Valentina in order to flow through ultimately to the grandchildren.

The framing of the estoppel case

1. In his opening written outline, Mr McGrath put the plaintiffs' claim for relief in the following way (POS [127]-[128]): 127. It is submitted that the Court should provide relief in terms of the expectation induced by [Rade's] promises, that is to say that Rade would keep his promises. These are the provision of secure accommodation during Rade's life and a transfer of the Illawong home after his death. 128. Given the continuing attempts in Rade's name to evict Dimce and Valentina and the evidence of resiling in relation to the inheritance of the Illawong home, it would be appropriate for the Court to order an immediate transfer of the Illawong home to Dimce in addition to declaratory relief and costs.
2. On the hearing, the case was opened by Mr McGrath on the basis of proprietary estoppel by encouragement. He stated (T 2.3-.13): Now, the claims of the plaintiffs are put before the Court as proprietary estoppels by encouragement. That is, Dillwyn v Llewellyn cases. Both cases are of the occupation/inheritance kind. Now, this term "occupation/inheritance" is the term that was used in the case of Q v E Co, a New South Wales Court of Appeal decision in the plaintiffs' case list. The term refers to a proprietary estoppel case based on a promise of occupation of a property in life followed by inheritance of that property. These issues in Q v E [Co] were dealt with as proprietary estoppels and it is submitted that this approach should be adopted here as well.
3. That this was the way the case was being put was confirmed as Mr McGrath commenced closing submissions: T 265.25-.27. In opening, Mr McGrath briefly mentioned, but did not appear to press, an alternative claim of promissory estoppel: T 2.13-.27.
4. Mr McGrath submitted that "all of the elements of the estoppel" were in place by the time that the plaintiffs married in Australia in 2003: T 2.41-.43. In the alternative, he submitted that at least by 18 November 2021, when the first eviction notice was served on Dimce in relation to the Illawong Property, all of the elements for estoppel were in place: T 3.22-.25.
5. Mr McGrath, at least in part, emphasised a Macedonian cultural overlay in what it was that Rade and Danica were setting out to achieve and, in particular, their desire to have the enjoyment of grandchildren. He submitted (T 8.12-.24): At the end of the case, it will be submitted that the Court should make findings that all the representations were made and particularly the terms about the occupation of the Illawong home and the inheritance that are pleaded and challenged should be made. Reliance is challenged in the real issues. The gist of what will be submitted there is that Rade and Danica set out on a plan to cause Dimce to settle down and start a family in the Macedonian mould by offering, among other matters, a guaranteed roof over their heads and the heads of their family at the Illawong house and eventual inheritance of the Illawong house. There were other promises, including the whole of the estate, to induce Dimce to settle down secure in the knowledge of having a steady income, his wife having the same, and a roof over the heads of the wife and family that he was to get before it was too late for Rade and Danica to enjoy grandchildren.

Evidence from other deponents bearing upon the representations

Mr Newton

1. Mr Newton had known Rade and Danica from the beginning of 2013, initially being employed as a part-time cleaner on weekends for the Nelson Building and the MPC, and eventually ending up as property manager: CB 142[1]-[3]. He gave evidence that his duties included transporting Rade and Danica to and from Ballina Airport, taking them to and from doctor appointments and having otherwise some degree of social contact with them while they were in Mullumbimby: CB 142[4]. At other times, he would also pick up Dimce and his family: CB 142[5].
2. Relevantly, Mr Newton deposed to a conversation said to have taken place in 2014 with Danica in front of Rade. His evidence included the following (CB 142[8]-143[12]): 8. In or about 2014, Danica said to me in front of Ray words to the following effect: Danica: "Rade and I had made an agreement with Dimce for him to get married and have children when Dimce was an aspiring artist many years before." "Rade and I had agreed to look after them financially, and that they would inherit the house in Illawong and a substantial part of our properties in Mullumbimby when Rade or I died. In return Dimce had promised to look after us in our old age and help with the business when necessary." 9. I knew the "house in lllawong" to be the family home in lllawong. It was often referred to by Ray, Danica, Dimce and Valentina as the "family home" or the "house in lllawong". 10. I understood that the house in lllawong was owned by Ray and Danica. 11. When Danica first said this to me, Ray then spoke to Danica in Macedonian, which I was unable to understand. 12. Danica had repeated this to me on other occasions subsequently.
3. Mr Bilinsky cross-examined Mr Newton on a number of issues, including Danica's command of English and whether she had a timid disposition, such that she was unlikely to engage in conversations about family arrangements.
4. Mr Newton accepted that Danica had a "pretty basic" command of English and was aware that she could not read English. He also accepted that she was shy and, to some extent, had a degree of difficulty in expressing herself in English. However, he noted that her English did improve quite a lot when she was with people that she knew, indicating that she would go out and talk to different tenants and quite often meet up with Mr Newton's partner to talk about things: T 171.40-172.45.

Mr Sochacki

1. Mr Sochacki, whose firm's office is located in the MPC, deposed to a discussion he had with Danica sometime after Rade had suffered a stroke (although no date is given, it is likely that this was a reference to the stroke Rade suffered in 2011). The conversation was said to have taken place at the mid-landing of the stairs between the MPC flat and Mr Sochacki's office. Mr Sochacki deposed to the conversation as follows (CB 151-152[11]): 11. One day, sometime after Rade had suffered a stroke, I saw Danica carrying shopping bags. We met at the mid landing of the stairs and paused. Danica and I then had a conversation, with words to the effect: Me: "Hi, how are you?" Danica: "Good. Good. You good?" Me: "We talk about you at the office all the time. We love you" Danica: "You love me?" Me: "Of course." Me: "I'm glad you gave this building [the Mullumbimby Professional Centre] to Dimce" Danica: "How do you know?" Me: "Everybody knows" Danica: "Oh. Oh. Good for Dimce. Good for Rade." Me: "Now you should transfer the house in Sydney to Dimce and Valentina because it's like their house anyway" Danica: "I know. We buy the house for them."
2. Mr McGrath referred to this evidence in oral opening: T 7.
3. Mr Sochacki was not cross-examined and on the face of it I have no reason to doubt his evidence. Nonetheless, there are some aspects of Mr Sochacki's evidence that are problematic. First, in the conversation, Mr Sochacki indicates to Danica that he was glad that she and Rade gave the MPC to Dimce. However, the transfer of the MPC was pursuant to the deed of gift dated 30 November 2018, after Danica had passed away (the transfer taking place in February 2019). Second, it seems highly unusual that Mr Sochacki would suggest to Danica that she and Rade should transfer "the house in Sydney" to Dimce and Valentina "because it's like their house anyway". While Mr Sochacki stated that he was aware that Rade and Danica owned "a property in Sydney which was occupied by Dimce, Valentina and their family", that fact hardly puts his suggestion to Danica in any real context to make it more plausible.

Lenche

1. Lenche gave affidavit evidence of a number of conversations she had with Rade, Danica and Valentina. Relevantly, the conversations included the following.
2. In approximately 2002, Lenche said that Rade had told her and her husband, in the presence of Danica, words to the effect (CB 176[6]): "When Dimce marries Valentina we will all live together as a family, the family home is large enough for all of us."
3. At the funeral of Rade's godmother, Lenche stated that Rade had told her words to the effect (CB 176[8]): "I sold my daughter's house to buy property".
4. Lenche said that this came as a surprise to her because, when Rade had bought the house for Susanna, he had said to Lenche words to the effect (CB 177[9]): "I got the house for her because Dimce will have the family home in Illawong."
5. Lenche then deposed to two conversations taking place in around late 2012, as follows (CB 177[11]-[13]): 11. In October 2012, Dimce, Valentina and their children attended our son's Christopher Stojanovski's engagement. 12. At this time, Valentina told me, or words to the effect: Valentina: "Dimce and I want to buy a larger home to accommodate comfortably for the addition of Alexander to our family. There is a home we like and are in a position to buy. We told Rade about this and he became terribly upset and told me we could not move out and must stay to care [for] them [Rade and Danica] as we had agreed." 13. Some months later, Danica spoke to me and told me, or words to the effect: Danica: "Valentina and Dimce understood they had to care for us and moving out of the family home is out of the question". Me: "Aleksandar will need his own room" "The house will need to be extended or re-configured because each of the children will want to have their own room."
6. Mr Bilinsky established that Lenche had (mistakenly) understood that Susanna's house had been owned by her, as opposed to being owned by Rade and Danica, and was seemingly not aware that Susanna had ceased living in the property (according to Mr Bilinsky) for three years prior to it being sold: T 195.18-.48. Further, he established that Lenche's understanding regarding the property which Valentina had said she and Dimce were looking at purchasing was that it was not going to be an investment property, but rather a home: T 196.37-.45.
7. On the whole, my impression of Lenche was that she was simply seeking to recount what she recalled and not seeking to argue a position or volunteer information unnecessarily.

Mr Trajchevski

1. Mr Trajchevski gave evidence of conversations which he had with Susanna and Rade. The conversations with Rade for the most part took place while Rade was staying with Mr Trajchevski in his family's home in Melbourne for part of 2021. Mr McGrath made reference (at T 259) to the following part of Mr Trajchevski's affidavit (CB 186[30]): 30. But of all the things that Rade said, the most distressing to hear was when in those first few days, he said to me: Rade: …["I want to evict Dimce and sell the house. I feel guilty for selling Suzie's house, and I want to repay her from the sale of the house in Sydney."]
2. Mr McGrath cross-examined Susanna about this statement, intimating that Rade may have said something very similar to her: T 269.35-.36. She accepted that Rade did wish to have Dimce out of the Illawong Property and sell the house, but she said that she had not heard Rade say anything about feeling guilty or wanting to repay her: T 259.37-.40.
3. Susanna was cross-examined about a conversation which Mr Trajchevski deposed to having with her about Rade's estate and his dispute with Dimce, in which Mr Trajchevski stated that there was no need to evict Dimce's family and sell the Illawong Property: CB 190[46]; T 260.1-.22. To this, he deposed that Susanna responded: "Yes, but I do not want to wait for Dimce's children to grow up, I want my share now."
4. Susanna denied that she said anything like that to Mr Trajchevski: T 260.22. I accept her denial.

Mr Mitrovski

1. Mr Mitrovski gave evidence of conversations he had with Rade and Danica which, although not specifically dated, appeared to have taken place in around 1985, as follows (CB 197[12], 198[14]): 12. Rade spoke of his satisfaction that Dimce had remained with them, saying words to the effect: Rade: "I am very satisfied that Dimce has remained with us and as a result the family unit is working together to advance our [Rade and Danica] interests and Dimce's interests individually and the family's interests at the same time". … 14. During our conversations, Rade and Danica said, or words to the effect: Rade/Danica: "We want to move to Sydney when the time comes for Dimce to marry so he too can raise a family and be closer to the relatives and friends of the family"
2. Further, seemingly after the plaintiffs' three children were christened, Mr Mitrovski gave evidence of other conversations as follows (CB 198[23], 199[26]): 23. Rade and Danica told me that all their wishes had been fulfilled, saying words to the effect: Rade/Danica: … ["Dimce is married and we now have three grandchildren. Everything we've worked for has not been nothing".] … 26. Many times over the years, Rade would say to me, or words to the effect: Rade: … ["/ want to do everything for my family. I want Dimce and his family to have everything he needs, that's what I live and work for".]
3. After Danica's death, Mr Mitrovski had a conversation with Rade as follows (CB 199-200[32]): 32. Rade and I sat down together on the couch and spoke a little. Rade said to me, or words to the effect, with tears in his eyes: Rade: … ["Slave, I have lost my Danica. You can see how helpless I am. Until now, Danica looked after me, but from now on my son Dimce will look after me and after the business. This is how it will be; he will do everything for me."]

Ms Ilioska

1. Ms Ilioska gave evidence of a conversation she had with Rade in the summer of 2010, during which Rade offered to help pay for her tertiary education, as follows (CB 204[10]-[11]): 10. When Rade realised we didn't have enough, and I wanted to study, he offered to help us financially. Rade said to me and my mother, or words to the effect: Rade: "You deserve a good education and you deserve someone to help you." 11. Both my mother and I expressed our concerns about him helping us financially and asked him, or words to the effect: Me: "Are you really sure? You have two grandchildren, Rahela and Nikita. Your family may need that money more than we do." Rade: "Don't worry. I have more than enough money. I have set them up for life, with the house they are living in in Illawong, other properties, money, as well as jobs for Valentina and Dimce."
2. Between June and August 2017, Ms Ilioska visited the plaintiffs in Australia. She gave evidence of a conversation which took place when Rade and Danica came to stay at the Illawong Property for a few weeks while she was there. She deposed as follows (CB 205[19]-[20]): 19. On the first day of their stay there, they gave me a few hundred dollars, which I was reluctant to take, telling them, or words to the effect: Me: "You have already done enough for me and have given me enough money. You now have 3 grandchildren who are still very young and have their lives in front of them." 20. Both Rade and Danica told me not to worry about that and take the money, and in words to the effect said: Rade/Danica: "We have secured them with the house and everything we own will be theirs."

Ms Josifovska

1. Ms Josifovska gave evidence of a conversation she had with Danica in or around July 2010, on the occasion of Rahela's sixth birthday. Her evidence was as follows (CB 209[8]): 8. In a conversation with Danica, she said, words to the effect: Danica: "I am very happy to live with my son and his family, so I can spend all my free time with my grandchildren. Dimce and Valentina accepted our proposal and agreed to live together and look after us in our old age, and in return they would inherit the house in which we live and most of the property, so that we could ensure that our only grandchildren have a secure roof over their head and be aware that everything we struggled for and achieved since we arrived in Australia would stay in the family."

Mr Risteski

1. Mr Risteski gave evidence of a conversation he had with Rade in or around July/August 2001, around the time that Dimce had arrived in Macedonia but prior to him meeting Valentina, as follows (CB 214[12]-215[14]): 12. Uncle Rade said to me words to the effect that: "I hold a great hope and anticipation [that] Dimce will meet an educated young woman from a good and respected family who knows and respects the Macedonian tradition and way of life." 13. During the conversation I told Uncle Rade, or words to the effect: "I will try to help Dimce to meet an appropriate young woman but it may be difficult for them to take such a step as leaving for such a far away and unknown country." 14. Uncle Rade explained to me, with words to the effect: "My family is very well situated, and as is Macedonian custom, I am prepared to give help and support that Dimce finally have his own family and with that, we can await grandchildren which is our greatest desire. Dimce will have a house in Sydney and his financial situation which is adequate, will significantly improve if we take into consideration the large estate we have acquired in all the years we've been in Australia."
2. Mr Risteski went on to refer to a further discussion with Rade, which occurred sometime during the period between 2010 and 2013, as follows (CB 216[25]-[26]): 25. His gratitude went as far as during that period, Uncle Rade offering us financial support in the form of a specific sum of money so I could complete my house. 26. I was against this because previously he had already helped us considerably, but he remained resolute because as he himself said: "I am deeply grateful that you were able to help me realise mine and my wife, Danica's wish to have a Macedonian daughter-in-law and to attain grandchildren which we had waited for many years and so enjoy them and that our many years of long and difficult work in Australia would not be for nothing, that the family will continue and that there is someone who will be able to inherit the estate we were able to manifest with so much hard work."

Susanna

1. Susanna referred to a conversation with her father which, in context, appears to have been in or about 2022, or at least at a point of time at which the plaintiffs had indicated that they wanted Rade to transfer the Illawong Property to them. In response to her telling Rade that, she stated that her father has repeatedly said to her words to the effect (CB 305[22]): "No, it's my house not Jimmy's, Jimmy never paid one cent for the house. His name is not on the deed".
2. Susanna noted that the Illawong Property was purchased by her parents for approximately $180,000: CB 308[45]. She gave evidence that at no time after 1987 did her parents advise her that the Illawong Property had been purchased for Dimce and his family, nor did they advise her that Dimce had contributed to the purchase price of the property: CB 308[46].
3. Susanna gave further evidence that when she read to her father that part of the statement of claim in which Dimce claims to have contributed the sum of $25,000 to the Illawong Property, this was disputed by Rade. Her evidence was as follows (CB 309[47]): 47. Following the commencement of these proceedings I have asked my father questions regarding the allegations made by Jimmy that he contributed the sum of $25,000 to the purchase of lllawong. I have read the Statement of Claim filed by Jimmy and Valentina to my father. I have said words to the effect:- "Papa, Jimmy says he gave you $25,000 to invest in Illawong." Dad said:- "No never." I said:- "Papa, did Jimmy give you and mum any money to buy Illawong?" Dad said:- "No."

Ms Bozinovska

1. Ms Bozinovska gave evidence that, in September 2020, she received a couple of telephone calls from Rade and he insisted that she visit him at the Illawong Property: CB 342[9]. She recalled that his communication was difficult, and she had more success in speaking with him in Macedonian than in English: CB 342[10].
2. Ms Bozinovska had a number of subsequent meetings with Rade. There was one meeting in particular when Rade and the plaintiffs came to her office and had a long discussion about the future options for Rade's accommodation: CB 345[20]. Relevantly, she stated that Rade had spoken about "transfer of a half of the property in Mullumbimby in Dimce's name". Her evidence was as follows (CB 346[24]): 24. Rade spoke about the transfer of a half of the property in Mullumbimby in Dimce's name. He said words to the effect:- "You are saying your mother and me promised our properties to give to you? But, you are not saying you promised to us to look after us until we both die. Instead, we looked after you and your family. Your mother and me helped you with your children. Therefore, Valentina and you moved at our house. Even you came at Mullumbimby where we have been all time and in particular during your mother's and my illness." Dimce said: "I am just 50 years old and I have my life to live now and also I am a father and have parental responsibilities towards my children. I have to be here in Sydney with my children. Whenever we have possibility, we come to Mullumbimby." Further Dimce said: "I cannot move all my family to live at Mullumbimby. You have to stay here; we move into this house to help you and look after you." Rade said: "I lived all my life at Mullumbimby, and we came here because your mother wanted to help you with your children." Dimce said: "We looked after my mother until she died. She was happy with us." Rade said: "She was happy, but I am not happy. I want my freedom and my money which I earned from hard work in all my life."

Proprietary estoppel principles

1. As noted above, the plaintiffs' claim was framed on the hearing in terms of proprietary estoppel by encouragement, being the doctrine associated with Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285: T 2.3-.5. In cases applying that doctrine, the equity which founds the relief is found in an assumption as to the future acquisition of ownership of property which has been induced by representations upon which there had been detrimental reliance by the plaintiff: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli) at [6] per Gleeson CJ, McHugh, Gummow and Callinan JJ; Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 (Q v E Co) at [15] per Meagher JA (Leeming and Payne JJA agreeing). Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment: Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [21] per Handley AJA (Allsop P and Giles JA agreeing). If these matters are established, equity may compel the owner to give effect to that expectation in whole or in part.

Representation

1. On the issue of whether the relevant representation is sufficient to ground a proprietary estoppel in a family context, I summarised the following principles in Reeves v Reeves [2024] NSWSC 134 (Reeves) at [466]-[469]: 466. In the context of family circumstances, there is ordinarily a question regarding whether the alleged promises or statements are intended to create legal relations. 467. The modern approach is to avoid use of presumptions as to whether or not some family arrangements are intended to give rise to legal obligations. That has limited utility. It is more important to ask "who bears the onus of proof?": Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous) at [26] per Gaudron, McHugh, Hayne and Callinan JJ. 468. Whether any, and if so what, representation has been made is to be judged "objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee": Q v E Co at [15], quoting Mance LJ in MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833 at 844; see also Thorner v Major at [24]-[27] per Lord Rodger of Earlsferry and at [80], [84]-[86] per Lord Neuberger of Abbotsbury; in this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA; Sullivan v Sullivan [2006] NSWCA 312 (Sullivan) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 (Ashton v Pratt (CA)) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22]. 469. However, the fact that at no stage in a conversation anything is said by one party that conveys to the other that what is being promised is to be legally enforceable is not determinative of the matter: Ashton v Pratt (CA) at [225], citing Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 at 367 per Windeyer J; [1969] HCA 29.
2. In Slade v Brose [2024] NSWCA 197 (Slade), Ward P (with whom White and Stern JJA agreed) relevantly stated the following at [202]-[206]: 202. True it is that there must be a careful identification of the nature of the assumption or expectation held by the plaintiff (to be assessed by reference to the circumstances of each case) (Doueihi at [186], citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 445; [1990] HCA 39; see also Thorner v Major at [56]) but the requirement of certainty for a representation or promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel. See Flinn v Flinn [1999] VSCA 109, where Brooking JA (with whom Charles and Batt JJA agreed) concluded (at [80]) that "a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined" (see also Delaforce at [55]; Evans v Evans [2011] NSWCA 92 (Evans v Evans) at [116], [121] (Campbell JA, with whom Giles JA and Sackville AJA agreed); DHJPM at [54]). 203. In Galaxidis, Tobias JA said (at [93]) that the representation or promise is sufficiently clear "if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely". See also the similar statement by Hodgson JA in Sullivan v Sullivan [2006] NSWCA 312 at [85] (McColl JA agreeing). 204. While a distinction has sometimes been drawn in practice between arms-length/commercial cases and domestic/family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption (see, for example, DHJPM at [104]-[105]; Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 at [68] per Lord Walker), in the present case this does not assist the Slades since the representations were clearly in a family context (as made clear by the ongoing emphasis on succession planning). 205. It is also relevant to note that the expectation reasonably derived from another's words and actions "need not depend on the words of a single conversation, but could arise from conduct over a period of time" (Evans v Evans at [107]). This is of particular relevance in the present case where the criticism made of the primary judge is that he found a "rolled up" representation. 206. Finally, and also of particular relevance to the present case, a proprietary claim does not necessarily fail simply because the representations or promises are conditional or subject to limitations (see Campbell JA in Waddell v Waddell at [53]).

Reliance

1. There is no presumption of reliance; rather, it is a fact to be found: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu) at [58] per French CJ, Kiefel, Bell and Keane JJ; Slade at [239].
2. Importantly, the relevant assumption need only be a "contributing cause", as opposed to the "sole or predominant cause", of the course of action or inaction taken: Sidhu at [73] per French CJ, Kiefel, Bell and Keane JJ, [90] per Gageler J; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 735 per Rich, Dixon and Evatt JJ; [1935] HCA 33; Slade at [240], [245]. The party relying upon the estoppel must establish that it would have acted differently in the absence of the relevant encouragement: Q v E Co at [88], citing Sidhu at [66], [67], [69] per French CJ, Kiefel, Bell and Keane JJ and [91] per Gageler J; Reeves at [472].
3. In considering the "counterfactual position", I stated the following in Reeves at [472]-[478]: 472. As estoppel by encouragement serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created, it is necessary to consider the "counterfactual position" of how the representee would have acted differently in the absence of the relevant encouragement. The extent to which it is unconscionable of the deceased's estate to seek to resile from the position expressed in the deceased's assurances to the plaintiff may be gauged by reflecting on the plaintiff's likely response if told from the outset that the promises were not intended to be binding, or warned that the deceased gave no undertaking or assurance as to the plaintiff's inheritance of the farms: Q v E Co at [89], [91], citing inter alia Sidhu v Van Dyke at [77] and Priestley v Priestley at [124]. 473. In Q v E Co, Meagher JA quoted at [89] the influential unreported judgment of Hoffmann LJ in Walton v Walton (CA, 14 April 1994) when his Lordship stated: one does not test reliance by asking what the plaintiff would have done if [the promise] had never been made. One asks what he would have done if, the promise having been made, he had been told that it would not be kept. 475. Care needs to be given to framing the counterfactual position. Options open to the representee might not necessarily be limited to a binary choice: Q v E Co at [106]. 476. It is not necessary for the representee to articulate precisely what he would (counterfactually) have done: Priestley v Priestley at [147]. Accordingly, the fact that the representee's evidence as to what he would have done is only raised as a possibility, and is qualified by adverse concessions as to the desirability of such a choice, does not necessarily preclude a finding of reliance: Q v E Co at [106]. 477. Sometimes, a plaintiff's evidence of what he or she would have done if told the promises were not intended to be binding or warned that the deceased gave no undertaking or assurance as to the outcome of the promises (such as the plaintiff's inheritance of a farm or part thereof) is equivocal: Q v E Co at [96]. 478. Some degree of caution is justified in assessing such evidence because it is hypothetical, and may be self-serving: Q v E Co at [116].

Detriment, countervailing benefits and unconscionability

1. For an estoppel to be recognised, "the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made": Kramer v Stone [2024] HCA 48 (Kramer) at [40] per Gageler CJ, Gordon, Edelman and Beech-Jones JJ.
2. There is no presumption of detriment; it must be established on the balance of probabilities: Slade at [274], citing Sidhu. The onus lies with the plaintiff to prove the detriment alleged to have been suffered: Sullivan v Sullivan [2006] NSWCA 312 at [91] per Hodgson JA (McColl JA agreeing); Blacket v Barnett [2017] NSWSC 1032 at [392] per Hallen J. However, the concept of detriment in the context of proprietary estoppel is "neither narrow nor technical": Slade at [274], citing Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis) at [20] per Nettle JA (then sitting on the Victorian Court of Appeal) (Maxwell ACJ and Ashley JA agreeing); see also Q v E Co at [124].
3. In Q v E Co at [123], Meagher JA characterised detriment as "the prejudice or disadvantage that the party attempting to set up the estoppel would suffer by reason of his or her change of position in reliance on the encouraged expectation, if it were to be departed from" (citing Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675 per Dixon J; [1937] HCA 58).
4. For the question of relief to arise, there must be detriment that is sufficiently substantial, real or material to bind the conscience of the party said to be estopped: Q v E Co at [127]; Reeves at [495].
5. The question of detriment is assessed as at the time of departure from the relevant assumption or expectation: Slade at [275].
6. It is well recognised that detriment in the relevant sense may flow from having significantly changed the course of one's life: Q v E Co at [125], referring to Riches v Hogben [1985] 2 Qd R 292 (Riches). The detriment suffered can be of a kind and extent that involves "life-changing decisions with irreversible consequences of a profoundly personal nature… beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based": Donis at [34], quoted approvingly in Sidhu at [84].

Representation issues

1. As a preliminary observation, I must admit that I find the timing of the various representations is somewhat vague. Notwithstanding that, I make the following findings in respect of the various representations based on the evidence that was before me.

First representation - Security Representation

1. I accept Dimce's evidence that there was some discussion between him and Rade in or about 1984 in which Rade asked Dimce to return to the family, intimating that if he sold his share in the Huonbrook Property he would be able to live with the family or otherwise be provided with secure accommodation.
2. I am less convinced that Rade use words such as "guarantee the security of your future". Nonetheless, I accept that the conversation was such as to reasonably create in Dimce an expectation that, if he sold his interest in the Huonbrook Property, Rade would provide him with some form of secure accommodation going forward.
3. However, as noted above, Mr McGrath accepted that the Security Representation alone would not be sufficient to ground the estoppel, and so it is necessary to consider the subsequent representations alleged.

Second representation - Family Business Investment Representation

1. I accept Dimce's evidence that he sold his share in the Huonbrook Property to Ms Bain for (approximately) $25,000 in or about the latter half of 1984: CB 42[22]. It is supported by the evidence of Ms Bain, who was not cross-examined: CB 194[7]-[9].
2. In respect of the Family Business Investment Representation, Dimce gave evidence as follows (CB 43[24]-[27]): 24. After selling my share in the Huonbrook Property I returned to reside at the family home at [XX] Main Arm Road, Mullumbimby ([XX] Main Arm Road). 25. Upon my return to the family home my relationship with my parents improved, and we discussed the potential investment opportunities in relation to my savings and the proceeds of sale of my share in the Huonbrook Property. 26. By early 1985, I had made contacts in the art world and shared with my parents my plans to move to Sydney and pursue my studies while supporting myself with my savings and working as an artist. Ray was against the idea and stated his view that my best option for my future was to invest my money with R&D Stoyanovski (Rade & Danica Stoyanovski) saying to me with words to the effect: Ray: … ["Your savings will be most secure as part of the overall family estate, and in that way will grow and become a lasting part of your inheritance."] 26. [sic] Ray then made me an offer, saying words to the effect: Ray: … ["If you invest your money with R&D Stoyanovski, not only will it be secure but I will also pay you far greater interest than anyone else will."] 27. I wasn't sure it was a good idea to hand over my entire savings to Ray. I felt I was handing over my independence, but after considerable thought in view of the high interest rates banks were offering at the time and Ray's promise to improve on them, I decided to trust him and accept his offer believing his words to the effect: Ray: … ["Investing your savings with your mother and I is your guarantee that you will receive your rightful share of the inheritance when the time comes."]
3. I am not persuaded that the Family Business Investment Representation was made in the form which was pleaded or which was put by Mr McGrath on the hearing. Specifically, I am not satisfied that there was a representation made that, if Dimce invested his savings with Rade and Danica, this would "guarantee" that he would "receive his rightful share of the inheritance", whatever that might mean.

Third representation - Illawong Investment Representation

1. The Illawong Investment Representation is premised on the fact that Dimce did hand over his savings of $25,000 to Rade in or around 1985. This fact was challenged by Mr Bilinsky. Thus, in order to make findings on the Illawong Investment Representation, it will be necessary to first make findings on whether Dimce handed over his savings to his father around that time.
2. Mr Bilinsky submitted that Dimce's evidence in relation to having contributed $25,000 towards the Illawong Property was unsubstantiated by any documentation and not plausible, given his then existing circumstances whereby he would have needed those savings to support and promote himself as an artist in circumstances where his parents were not prepared to continue to financially support his endeavour: DCS [10], citing T 58.16-59.34, 60.50-61.26.
3. Dimce's affidavit evidence on this issue is as follows (CB 45[42], 46[47]-[48]): 42. By late 1987, three years after the investment of my savings with R&D Stoyanovski, my parents informed me, that true to their promise of paying higher interest rates than anyone else on my savings, my $25,000, "had now grown to $50,000" and that as the lllawong Property was incomplete when purchased , my money would be used to fund part of the proposed renovations, thus ensuring my interest in the property. … 47. Having created momentum with my art career, and with the thought of further promoting it, I enquired about the possibility of accessing my money with my parents a number of times during the period from the late 1980's through to the mid/late 1990's. Ray told me each time using words to the effect: Ray: … ["I cannot give you your money because it has been invested in the house".] 48. I was disappointed that I couldn't access my money to promote my art career and thus maintain and capitalise on the recognition I was receiving with my work at exactly the moment I needed to, but in spite of the frustration I experienced, I took comfort hearing my parents repeat their promise to me many times during the early to late 1990's, using words to the effect: Ray/Danica: … ["Now that your savings have been invested in the house, you can rest assured you will inherit the house".]
4. Dimce was cross-examined regarding his use of the $25,000 (commencing at T 57.10). During his cross-examination, I enquired about that sum in his evidence as follows (T 61.41-62.16): Q. You've referred to money being invested in the family business, the $25,000? A. Yes. Q. What do you say, if anything, your father told you about the destination of the money, where it was invested? A. That money was given to my father, it was invested in what we can loosely term "the family business". Later I was informed that the money was invested in the house in Illawong. Q. Your evidence is that you were initially told that the money was to be invested in what was described as "the family business"? A. Yes. Q. You say that at some later point of time, you were told that it was not in fact invested in the family business, but used as part of the moneys to purchase the Illawong property, is that correct, is that your evidence? A. That is correct, your Honour, yes. Q. What do you say was the difference in those two points of time? A. Probably two years. Q. Are you able to put dates on them approximately? A. The dates would have been - the investment was early two - 1985, your Honour, and the time that I was told the, the money had been invested in Illawong would have been after the purchase of the property in late 87.

Fourth to sixth representations - Occupation and Inheritance Representation; Employment Representation; and Care and Management Representation

1. I am satisfied that the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation were made in essentially the forms which Dimce contended. I am also satisfied that Dimce relayed the representations to Valentina essentially as set out in his evidence.
2. There are no contemporaneous independent witness accounts of the representations made by Rade and Danica in or about 1998 and 2001. However, part of my preparedness to accept Dimce's evidence is based upon the fact that there is subsequent support from a number of other deponents who give evidence of discussions with Danica and/or Rade consistent with the representations, or at least parts of them, having been made.
3. It is true that the conversations which Danica and/or Rade had with those deponents took place over various years, at points of time quite remote from the timing of the relevant representations relied upon by the plaintiffs, and in some cases well over a decade later. There is of course some risk that statements made by Rade and/or Danica quite a few years after the timing of the relevant representations might not accurately reflect what had initially been said to the plaintiffs. However, in this case, they are broadly consistent, and I consider that they provide a measure of appropriate evidentiary support for the plaintiffs' claims that the representations were made both in the terms and at the times which they contend.
4. Independent of the plaintiffs, the most complete version of the fourth to sixth representations appears in the evidence of Mr Newton, which he recalled from his conversation with Danica in around 2014: see CB 142[8]. As noted earlier, I am inclined to accept his evidence.
5. Mr Risteski's evidence about the conversation he had with Rade in or about July/August 2001 is largely consistent with Rade having made the Occupation and Inheritance Representation, in particular when he told Mr Risteski that "Dimce will have a house in Sydney": CB 215[13]-[14].
6. Ms Josifovska's evidence of her conversation with Danica in or around 2010 is also consistent with the Occupation and Inheritance Representation and the Care and Management Representation having been made: CB 209[8].

Seventh representation - Repetition Representation

1. I am satisfied that Rade and Danica from time to time repeated the substance of what had been represented to the plaintiffs in the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation.

Submissions

1. Mr McGrath submitted that the language said to have been used by Rade and Danica was "definitive and not couched in terms of revocable intentions but explicit promises as part of bargains": POS [105]. This was said to indicate that the representations were "intended to be immediately binding and not subject to a change of mind by making an inconsistent will or transferring the Illawong home to anyone other than Dimce": POS [105]. In particular, Mr McGrath asserted that (POS [102]): 102. There is little doubt that the Occupation and Inheritance Representations were intended to be immediately binding and irrevocable. In the circumstances of their making and repetition they were intended to induce conduct that changed the course of each of Dimce's and Valentina's lives. These representations were repeated at times when it was sought to influence their behaviour in relation to key decisions of marriage, children, occupation and location and were effective in doing so to the knowledge of Rade.
2. As to demonstrating an intention to create legal relations in the context of family circumstances, Mr Bilinsky emphasised that "it would be easy for imprecise or casual discussion to pass through the interpretation of an interested person into a recollection of concrete assurance or promise": DCS [5], referring to Hampson v Hampson [2010] NSWSC 217 at [16] per Bryson AJ.
3. Mr Bilinsky submitted that, even if the alleged representations are found to have been made, they were "merely a statement of a present (revocable) testamentary intention, or were otherwise tantamount to a revocable promise": DCS [7]. In opening, he submitted as follows (DOS [64]-[67]; see also DCS [5]): 64. … it is submitted that the summarised evidence of the plaintiffs, taken at its highest, does not rise to the level of a representation amounting to a promise (upon which reliance could be placed). 65. Statements by happy parents - delighted their son is wishing to get married, settle down and start a family - to the effect that he and his wife can live with them in their home, and feel secure in raising their children there, is nothing more than an expression of common emotional and financial support which parents frequently give their children, especially when they are embarking on the uncertainty and expense of starting a family. It should be seen as nothing more than a natural example of parental generosity and support. 66. Vague and nebulous statements such as "it's all yours anyway" or "one day it'll be yours or the grandchildren's" should not be regarded as promises which legally bind the maker. [4] If it were otherwise, parents would need to exercise extreme caution before making expressions of love and support or showing outward generosity to their married children. Equally, if all a child would have to show to demonstrate he or she was holding up their side of 'an agreement' to be provided for was that they cared for their parents, there would be endless litigation spawned as a result. 67. The idea that Rade and Danica could think of nothing better than to have grandchildren in their lives cannot mean that, when the plaintiffs ultimately do get married and have children, their decision was the reflection and fulfilment by them of an agreement whereby Rade and Danica would be forever bound to afford the plaintiffs proprietary rights in respect of their home.

Determination

1. As noted earlier, Mr McGrath appeared to approach the matter on the basis that the Security Representation was not itself sufficient to ground an estoppel, but was "part of the eventual family arrangement that was made": T 266.
2. For reasons explained above, I am not satisfied that the Family Business Investment Representation and the Illawong Investment Representation were made in the forms claimed by Dimce, and accordingly there is no occasion to address any binding effect of those alleged representations.
3. There was evidence of conversations involving Rade, including from Mr Risteski, which did not suggest that the ultimate arrangement between Rade and the plaintiffs was based on a binding agreement or arrangement, as distinct from being a form of Macedonian custom and preparedness on the part of Rade to help and support in Dimce.
4. However, in relation to the Occupation and Inheritance Representation, the Employment Representation and the Care and Management Representation, I am generally satisfied that these representations were made in a context where they were intended by Rade (and the plaintiffs) to have an effect beyond mere family or cultural expectations.
5. The plaintiffs gave evidence to that effect. In respect of other deponents who swore affidavits on the plaintiffs' behalf, the repeated use of language akin to "agreement", "arrangement" or "obligation" (in particular, in the evidence of Mr Newton, Lenche and Ms Josifovska) suggests to me that the statements were intended by Rade (and Danica) to have a type of binding force.

Reliance issue

1. The plaintiffs' case for reliance in respect of the alleged representations to some extent suffered from a want of clarity and precision. Nonetheless, I understood it as focusing upon essentially three categories, being: 1. the plaintiffs' (in particular Dimce's) financial contributions to the Illawong Property; 2. the plaintiffs' making of (so-called) life-changing decisions, including to get married and to live and raise their family at the Illawong Property, and forgoing other opportunities or paths in life; and 3. the plaintiffs' caretaking of Rade and Danica, as well as that of the Illawong Property and the family's other commercial properties in Mullumbimby.
2. I note that the last category was (I must admit somewhat unusually) characterised by Mr McGrath as part of fulfilling a kind of "counter-representation" or representation made by the representees (i.e. the plaintiffs) to Rade and Danica as part of the overall "single family arrangement", rather than necessarily being characterised as reliance per se: T 270. It has been identified above as the Care and Management Representation, and I consider that it was made to Rade and Danica. Nonetheless, I propose to deal with that category under the issue of reliance, as that is where I consider it most appropriately belongs.
3. The nature of these categories of reliance differed between Dimce and Valentina, although there was naturally significant overlap.
4. In closing, Mr McGrath focused only on the plaintiffs' decision to get married and raise a family as demonstrating their reliance: T 287.11-288.2. However, for completeness, I will set out in detail below what, as I understand the plaintiffs' case, is said to constitute their evidence of reliance on the alleged representations.

Life decisions and marriage

1. According to Dimce, the "main topic of discussion" between him and his parents from his mid-twenties, after having "invested" his savings with them, was his marital status: CB 43[28]-44[29]. His affidavit evidence was as follows (CB 44[30]-[31]): 30. In accord with Macedonian tradition, my parents clearly stated their expectation of me on a number of occasions: Ray / Danica: … ["In this family, you are the male, and you are the son, and so bear the responsibility for carrying on the family name, and to do that you need to marry a Macedonian girl and give birth to at least one son."] 31. I would reply to my parents, on a number of occasions: Me: "I am perfectly happy to marry a Macedonian woman if I meet one I am compatible with, but not until then."
2. With a view to finding a Macedonian wife, Dimce travelled to Macedonia in mid-1986. He dated a number of Macedonian women but found no potential "life partner" by the time his visa expired at the end of that year: CB 45[36].
3. Seemingly in or about 1998, after his parents made the Occupation and Inheritance Representation to him, Dimce deposed that (CB 47[57]-[58]): 57. I explained to my parents that although I may be able to support myself as an artist, it was not going to be enough to support a family if I were to accede to their wish to marry a Macedonian woman with whom I could share my life and raise a family. Ray and Danica responded to my concerns about income, saying to me, words to the effect: Ray/Danica: … ["Along with the house which we will give you to live in, we will also employ you and your future wife in the family business."] 58. With Ray and Danica proving unable to reconcile their expectations of their son in a relationship with a non-Macedonian woman, due mainly to the language and cultural barrier, and with their promises in mind, I resolved to find a compatible Macedonian woman with whom I could share my life and raise a family with. First, however, I had committed to a number of art commissions which would take me two years to complete before I could seriously consider marriage.
4. Significantly, Dimce then stated (CB 47[59]-48[60]): 59. Respecting my parents' wishes and in reliance on their assurances of employment in the family business for myself and my future wife as well as my inheritance of the lllawong Property, in 2001 I again travelled to Macedonia in hope of finding a Macedonian wife. I stayed with relatives and in August of 2001, I met my now-wife, Valentina. 60. In September of 2001, I returned to Australia and stayed with Ray and Danica at the lllawong Property, explaining to my parents that I had made a commitment to marry Valentina and had shared with her their undertaking to support our marriage and that she, in turn, had agreed to return to Australia with me as my wife.

Financial contributions and expenditure on the Illawong Property

1. According to Mr McGrath, the first of a number of situations in which Rade (and to some extent Danica) influenced key life and financial decisions of Dimce (and later Valentina) through inducements, including an offer of a house, occurred in the second half of 1984 when Dimce sold his share in the Huonbrook Property for approximately $25,000 and returned home: POS [15]-[16]. Dimce's evidence was that this was done following Rade making the Security Representation to him and, in doing so, Dimce "obeyed Ray's wish and accepted his guarantee of a secure future, giving up [his] independent lifestyle": CB 42[22].
2. Dimce subsequently chose to accept Rade's "offer" to "invest" his savings of $25,000 with his parents: CB 43[27]; POS [18]. This was said to be in reliance upon the Family Business Investment Representation made by Rade, in particular the offer of a greater interest rate than Dimce would be able to find elsewhere. In response to a question from the Bench, Dimce clarified (T 63.16-.19): When I gave my money to my father, he - my father had a habit of doing whatever he wanted with the money. The money I gave to him was an investment in the, the overall family properties, the business, the family holdings, if you like.
3. As noted earlier, in or around late 1987 after the purchase of the Illawong Property, Dimce deposed that his parents had told him that his $25,000 in savings "had now grown to $50,000" and would be used as part of the proposed renovations to the property, "thus ensuring [his] interest in the property": CB 45[42].
4. In 1998, Dimce deposed that his parents reiterated to him the fact that his savings "had grown to $50,000": CB 47[56]. Further, he said that his parents then informed him that his "investment" had been used to pay for an extension to the southern end of the Illawong Property, which Rade had been engaged in completing for a number of years. The renovation consisted of a self-contained large bedroom comprising separate living quarters from the rest of the house. Dimce said that his parents explained that the renovated area constituted his "share of the property" which would house his future family: CB 47[56].
5. Whilst Dimce's "investment" of his savings (alleged by him to initially have been $25,000, but which I find was likely less than $25,000) was by far the largest financial contribution to his parents and (on his evidence) the Illawong Property, he gave evidence that he and Valentina also undertook the following expenditure in improving the Illawong Property (CB 51[85]): 1. spending $7,000 as half payment for floating wooden floors; 2. replacing all lighting switches throughout the house in 2018/2019; 3. installing three new toilets and other plumbing works; 4. spending approximately $5,000 to $7,000 for approximately seven to eight tonnes of sandstone blocks, which Dimce then spent three months installing (with one week's assistance from a stonemason); 5. purchasing and installing a new clothes line; 6. installing a wood fire stove; and 7. paying for modifications to the roof in 2019.

Dimce - career as an artist

1. Dimce's evidence placed much emphasis on his aspirations for a career as an artist. This passion was said to have started sometime after finishing secondary school while he worked for his father on the plantation in Mullumbimby: CB 41[10].
2. At the time of selling his share in the Huonbrook Property, Dimce said that he had been taking art lessons and begun exhibiting in the local region: CB 43[23].
3. According to Dimce, by 1985 he had "made contacts in the art world" and shared with his parents his plans to move to Sydney and pursue his studies, while supporting himself with his savings and working as an artist: CB 43[26]. However, Rade was said to have been "against the idea" and subsequently made the Family Business Investment Representation, after which Dimce did not to pursue those plans.
4. Then, by the end of 1987, Dimce said that he had "resolved to put [his] abilities to the test" and established a relationship with a patron, Duncan MacKellar, who would support his career for some 12 years: CB 45[43]. Dimce's evidence went as follows (CB 45[44]-[45]): 44. For a period of about 10 years, I followed my dream of becoming a successful artist. From early 1988, I ceased my occasional financial reliance on my parents and struck out on my own. 45. During this time I exhibited extensively, holding solo and group exhibitions throughout the region as well as in Sydney, Melbourne, Brisbane and Canberra. My work was featured in a number of magazines, I fulfilled a commission to illustrate a book, won a number of Art Prizes and received positive reviews from critics in the Melbourne Age, the Sydney Telegraph, as well as other local publications for my exhibited work, in addition to consistent sales to my patron.
5. During his cross-examination on this period of independence from his parents between the late 1980s and mid to late 1990s, Dimce said further that (T 60.12-.16): A. … I was independent, I was making money from the sale of my work. I was, I was doing other things around the region, markets, festivals, I was doing things like facepainting, street performance, I was a musician, I was performing music, I was receiving social benefits at, at part, part of that time, and I was selling art.
6. Around this time, Dimce said he had created "momentum" with his art career and had made several enquiries of Rade to access his savings in order to further promote it: CB 46[47]. In response to those enquiries, Dimce said that his father told him: "I cannot give you your money because it has been invested in the house" (I infer the Illawong Property). Dimce further deposed (CB 46[48]): 48. I was disappointed that I couldn't access my money to promote my art career and thus maintain and capitalise on the recognition I was receiving with my work at exactly the moment I needed to, but in spite of the frustration I experienced, I took comfort hearing my parents repeat their promise to me many times during the early to late 1990's, using words to the effect: Ray/Danica: … ["Now that your savings have been invested in the house, you can rest assured you will inherit the house".]

Valentina - university and work

1. Within the first week of her arrival in Australia with Dimce in August 2002, Valentina said that she told Rade and Danica about her plan to dedicate the next two to three years to complete her learning of English, and then to go to university to complete the necessary exams to gain recognition of her university degree from Macedonia: CB 112[22]. The evidence indicated that her Macedonian qualifications consisted of a bachelor's degree in early childhood education and a diploma in finance and bookkeeping: CB 53[104], 110[3].
2. Valentina deposed to (lengthy) conversations with Rade and Danica in which they encouraged her to focus on raising a family: CB 115-117[25]-[26]. She said that "[e]ven though I was unhappy with the situation, I sacrificed my wishes and plans and did not go to university": CB 117[27]. In cross-examination, she accepted that she had not made any enquiries around that time as to possible forms of study which were more accommodating to having a family: T 137.47-138.12. She also clarified that it had been her plan to have children later (specifically, around six years later), rather than not at all, had she gone to university in Australia: T 134.43-.49, 141.2-.5.
3. Rade and Danica were also said to have discouraged Valentina from obtaining work outside of the family in around late 2008: CB 120-121[46]. Part of their reasons for taking such a view was that it would be "embarrassing" to Rade and Danica, due to a perception that they did not have enough money to support the family.
4. Lenche confirmed as much in her affidavit evidence and cross-examination: CB 177[15]-178[17]; T 197.29-.46. Lenche also gave evidence of three conversations between Rade and Valentina which she heard, in which she claims that Rade told Valentina she was not allowed to work: CB 177[14]. The conversations were as follows: 15. The first time was soon after her arrival when Valentina found work as a teacher in Macedonian language to teach Macedonian on a Saturday and after school. Valentina and Rade had a discussion in front of me and llo, in which Rade became angry, with words to the effect said: Valentina: "I have been offered the job as a teacher" Rade: "You cannot work. Why would you want to work? I have enough money for all of us to live comfortably. What will people say if you work." 16. On the second occasion, it was during fitting for groomsmen for Valentina and Dimce wedding. Valentina and Rade had a conversation, in my presence, with words to the effect: Valentina: "Can you get a business where I do not have to work for someone?" Rade: "You are incapable of running a business. Your place is in the home. I have enough money for all of us to live comfortably". 17. The third occasion was during a visit to their home and there was a discussion about work as a social outlet for Valentina. Rade said, words to the effect: Rade: "Neither Valentina or Dimce need to work. I have enough wealth for them to be comfortable and I will not allow it."

Investment opportunity

1. Dimce deposed that, in early 2011, Valentina and Danica attended a viewing of a property for sale in Heritage Drive, Illawong: CB 52[94]. Dimce said that the sale price was $650,000 and "Valentina was convinced it was an investment we should make". With savings of approximately $100,000 at the time, Valentina and Dimce agreed that the property was within their means: CB 52[95]-[96]. Dimce stated further (CB 52[97]-[102]): 97. As rent had never been a part of our agreement with my parents, our money went exclusively into maintaining and supporting the family's needs, such as food, clothing and living expenses. We wanted to take out a mortgage to pay for the purchase of the property, which we then planned to repay from rent received from renting out the new investment property, and if needed, part of our income from my parents. We became excited at this new opportunity, and it became our dream to invest. There was nothing, after all, in our agreement with my parents that stated we should not make our own investments. On the contrary, we thought Ray would support our idea. … I recall him saying: Ray: … ["Haven't I made it clear that the house will one day be yours?"] 98. Ray insisted that managing a further property along with the added stress of paying off the mortgage would not be a good idea and discouraged us from investing in the property. Ray said to us with words to the effect: Ray: … ["You do not need to trouble yourselves more than necessary. Dedicate yourselves to the family knowing that we will abide by our promise to give you the house when the time comes."] 99. … and at one point I was upstairs and overheard an exchange that occurred downstairs between Ray and Valentina. Ray said to Valentina with words to the effect: Ray: … ["Why do you need a house? You have a house here! You will not buy the house because we have enough property and everything is for the kids!"] 100. We were forced by Ray's insistence and Ray's threats to discontinue our employment to pass up on the opportunity of purchasing the property and make potential significant capital gains in view of the rise in property market values in Sydney. 101. We later found out that the property had sold for $630,000, making it even more achievable for our prospective purchase. 102. Valentina and I were confident we could have rented the property and met the mortgage commitments, but not without the ongoing financial support of the family business.

Caretaking of properties

1. As noted above, Dimce was employed in the family business in early 1997 and, by 1998, had returned to live full time at the MPC flat whilst taking on caretaking duties for the Nelson Building and the MPC: CB 46[52]-[54]. In particular, Dimce deposed that (CB 47[55]): 55. With Ray's assurance that I would inherit the lllawong Property, I regarded my care taking efforts as part of a broader exchange based on our understanding. I wasn't without money as I had been advanced funds for a number of commissions at the time which would occupy me for about 2 to 3 years.
2. Upon Valentina coming to Australia, the couple assumed caretaker duties for the properties in Mullumbimby as well as the Illawong Property, depending upon where they were staying at the time: T 80.29-.31. During their extended stays in Mullumbimby, Dimce deposed that their duties included (CB 50[79]): 1. sweeping and hosing down the arcade of the MPC; 2. vacuuming and/or mopping the tiled upstairs floor of the MPC; 3. hosing down the area surrounding the bins and western entrance to the MPC; 4. rubbish removal and disposal; and 5. vacuuming at the Nelson Building.
3. In cross-examination, Valentina indicated that, between 2002 and 2009, she and Dimce would generally alternate with Rade and Danica between Mullumbimby and Sydney for approximately two to three months at a time: T 135.14-.29.
4. In respect of their duties at the Illawong Property, Dimce's evidence went as follows (CB 50[80]-[82]): 80. At the lllawong Property, I established a routine of working the yard at least 5 or 6 hours a week, which included maintaining the lawn, weeding and landscaping the section of rocky escarpment that borders onto the back of the property. 81. I also planted trees, shrubs and flowers of many varieties and took pride in keeping the large front and back yards in good order. 82. Valentina took care of the housework, cooking and domestic duties and also helped with the garden, while I also did a lot of cleaning and maintenance of the lllawong Property as well.

Care for Rade and Danica

1. In their affidavit evidence, the plaintiffs set out various instances of day-to-day care and assistance which they gave to Rade and Danica, particularly as their health declined. Several references to such evidence were listed by Mr McGrath during his closing submissions: T 338.14-.29. Generally, such care and assistance consisted of driving Danica for regular shopping trips, taking Rade and/or Danica to doctor appointments or for other medical treatment, undertaking domestic household duties (including preparing food or washing clothes) and regularly accompanying Rade and/or Danica (mostly Rade) to and from Mullumbimby. As set out below, the extent of the assistance given, particularly by Dimce, is said to have increased over the years.
2. Valentina's affidavit evidence of her caretaking of Rade and Danica included the following (CB 118[33]-[36]): 33. I became Danica's 'personal driver', because Danica did not hold a licence. In the first two or three years, sometimes Rade would take her, but after that, transporting and assisting Danica became my daily responsibility or the responsibility of Dimce. 34. Every day and sometimes twice a day, I would take Danica to the shopping centre and help her with the shopping. I also took her to and accompanied her on her doctor's appointments. 35. From 2008 on, I also often drove Rade and Danica to and from the airport due to their regular trips to Mullumbimby, which continued after Danica's death. After Rade had a stroke, he could no longer drive and Dimce would take him to Mullumbimby, often staying there with Rade for weeks at a time. 36. I would be left alone with the children trying to be in two places at one time when my children's activities overlapped.
3. In respect of his assistance to Danica and Rade following Danica's diagnosis of cancer in September 2017, Dimce's evidence was as follows (CB 61[185]): 185. To assist Danica, I left my family at the lllawong Property and moved into the MPC flat with my parents, and began a schedule of assisting Danica in the following ways: (a) beginning in September, 2017, travel and attendance at numerous specialist appointments at the Oncology Department at Tweed Heads Public Hospital, as well as at John Flynn Private Hospital. (b) accompanying, transporting and visiting Danica from the time of her initial 23 day stay in hospital, when she completed her first round of chemotherapy, and on through to her sixth and final round of chemotherapy in January 2018. (c) communications with doctors, chemists and nurses. (d) ensuring that all Danica's medications were taken in the correct dose and on time. (e) cooking and shopping for Ray and Danica. (f) looking after Ray at the MPC flat including cooking, cleaning and taking care of his medical needs. Ray was extremely weak at this time, his weight having dropped to dangerous levels. Ray's overall condition was extremely fragile and vulnerable. (g) organising for Garry Newton to provide care and supervision for Danica and Ray on my behalf when I returned to Sydney for 10 to 14 days at a time, in the interim periods between Danica's chemotherapy cycles. (h) managing the business.

Submissions

1. In his outline of submissions, Mr McGrath submitted that (POS [106]): 106. The evidence as to the promises makes it clear that Rade and where relevant Danica made the promises to achieve a result in influencing Dimce and Valentina. All were all intended to induce reliance and the outcomes demonstrate that in each case they did induce the conduct intended.
2. In his closing submissions, Mr McGrath submitted that the plaintiffs' position was that their marriage and life together "would never have got out of the cradle" if it had not been "viable": T 287.19. He further submitted that neither of them would have contemplated marrying and embarking on having their family unless they had the assurances that they had income and security of accommodation, and an eventual ownership of the home, provided by Rade and Danica: T 287.27-.30. Finally, it was submitted that it is "highly probable" that the representations of Rade and Danica were a "contributing cause" in terms of the test formulated in Sidhu and used in a number of other cases: T 287.49-288.1.
3. Meanwhile, Mr Bilinsky identified the following "concessions" in Dimce's cross-examination as bespeaking of the reality that, in finding a Macedonian woman, getting married to her and starting a family, Dimce was not placing reliance on anything that his parents had represented to him and was not performing his part of "an agreement" with them: DCS [19]. Rather, it was submitted that Dimce was acting "on his own accord pursuing his own wishes and desires as a free agent". The "concessions" were as follows (DCS [18]): 1. Dimce independently wished to get married and have children at the time he set off to Macedonia (referring to T 68.35-.40, 71.35-.37, 72.24-.26); 2. Dimce's own independent interest to "find a nice girl" to marry and start a family with was something that just aligned with his parents' hopes for him (referring to T 71.40-.43); 3. Dimce met Valentina and a "whirlwind romance" followed, with Valentina quickly accepting his proposal of marriage (referring to T 71.35-.40, 74.29-.32); 4. Dimce had made a commitment to Valentina and intended to "follow through with it" (referring to T 72.29-.32); 5. Dimce did not propose marriage to Valentina, bring her back to Australia and decide to have kids with her "to fulfil his end of a deal so [he] would get [his] parents' house" (referring to T 72.12-.16, .19-.22); and 6. Dimce did not say to his parents before proposing to Valentina that he was doing so on account of their promise to him that he would have their house if he went through with the marriage (referring to T 72.6-.10).

The "counterfactual" position

1. In his closing submissions, Mr McGrath characterised Valentina's counterfactual position in the following terms (T 288.42-.48): MCGRATH: She would not have married … and have started a family if she did not have the assurance that the material comforts there necessary to marry, to bring up a family and the like were there. Her evidence of that really I dealt with under reliance. Once someone does not marry then whatever the counterfactual was it would have happened in a different culture and a different continent, and one can infer that the degree she had and the work she was doing would have gone on.
2. At that point, Mr Bilinsky (correctly) observed that there is no evidence of any work undertaken by Valentina in Macedonia: T 288.50. In response, Mr McGrath contended that the counterfactual was not "explored in any depth" because "the change in all the factors was so colossal" that it did not make sense to identify one of a "huge number" of possible lives which Valentina could have led: T 289.2-.4.
3. Mr Bilinsky characterised the counterfactual positions of the plaintiffs as follows: 1. in respect of Dimce: 1. he would not have pursued what (he says) was his parents' request, being that he marry a Macedonian girl, bring her back to Australia and start a family; 2. presumably, he would have remained single and a "struggling artist" in Australia; and 3. without any "professional skills", "base qualifications", assets or other job prospects, he would have needed continuing assistance from his parents with accommodation and money, both of which he was receiving prior to leaving for Macedonia in 2001: T 321.37-322.21; 1. in respect of Valentina: 1. she would not have married Dimce and raised a family with him, and very likely would not have left Macedonia; 2. beyond that, there was no evidence that she had any existing employment in Macedonia or that she would have pursued a working career in Macedonia; 3. she gave no evidence of any assets or savings to deploy to, or any desire to, pursue alternative opportunities (including investment opportunities) in her home country; and 4. given her desire to have a family, a reasonable conclusion would be that she would have focused on assuming the task of raising children rather than on any career: T 322.23-.34.
4. In reply, Mr McGrath submitted that, in respect of Dimce's counterfactual position, it is likely that he would have continued with "following his art" and living "cheaply, but satisfyingly", following his passion on the north coast of New South Wales: T 335.46-.48. The following exchange then took place (T 335.48-337.42): MCGRATH: … He would probably have a good but much more distant relationship with his parents. The Court it is submitted would note that he had departed twice from home, and been brought back twice by inducements; the second time he wasn't living at home for ten years. It is highly likely that he would not have lived with his parents as a permanent son in residence. It is likely the parents would've provided some support to him, that he was one of two children and was close to them. It is likely that Danica would've passed when she passed; there's no suggestion otherwise and from the disease that did cause her passing. It is likely, very likely, that Rade, living by himself without the attention and care of Dimce and Valentina, and even with some support from wherever Dimce was living at the time, and whoever he may have been living with, would have had a shortened life, without the care and feeding of a dutiful son, that would've been almost certain in my submission, and Rade would've passed by now. BILINSKY: How can you say that? MCGRATH: It is unlikely that Dimce would've become a focus for Rade's false obsessions about Dimce wanting to murder Rade; they wouldn't have been that close, they wouldn't have been that together, he would not have ended up, or Rade, well he would've passed but he would've not ended in what is described by Ms Drew in her affidavit, and does appear to be quite close to believing he's in witness protection by Mr Julian Moore, when your Honour reads that affidavit. HIS HONOUR: So the submission is that the counterfactual is that Dimce would not have had the natural inclination out of the goodness of his heart to go and look after his father, irrespective of benefits. MCGRATH: No your Honour, that's turning a grey into an absolute; I'm sure Dimce would've helped his father, but he would not, very probably-- HIS HONOUR: But I thought the submission was that he would've gone off and lived a separate life? MCGRATH: He would've gone off and lived a separate life, as almost every Australian child does your Honour, but that doesn't mean - he would've given some support but in the nature of things he would not have given 24 hour care to Rade. HIS HONOUR: But there's no suggestion of 24 hour care. MCGRATH: But there is. HIS HONOUR: Where, where's the evidence? MCGRATH: Dimce and Valentina were there 24 hours a day doing what Rade wanted. HIS HONOUR: The fact that you're living in a house with other people doesn't mean that you're providing 24 hour care to them. MCGRATH: They were being paid by Rade and Danica and then just by Rade. BILINSKY: Yes, that's true. MCGRATH: They were performing all these work functions. HIS HONOUR: The impression I have is not that they were doing things 24 hours a day, but it's much closer to a position that they were available to do things and did do some things. So that's a much different proposition than 24 hour care. MCGRATH: Well they were there 24 hours a day your Honour, but particularly once Danica passed - which is really a major event obviously in Rade going the way he did, because Danica could no longer control them - it would've then really cooking for himself, cleaning and the like, it would have become something that did not happen so much. The affidavit of Susanna Stoyanovski is critical of Rade's position, even when he did have the care of his son and daughter in law. What is likely in my submission to be the case, and of course your Honour will bear in mind that detriment is to be assessed at the time of resi[l]ing effectively now, and that what is likely to have happened is that Rade would've passed and Dimce would not be here, he would be a multimillionaire, probably having not encountered the circumstances that caused Rade to make the final wills he did. HIS HONOUR: Sorry, just run that last little bit past me again. How would Dimce have become a multimillionaire? MCGRATH: Through Rade's passing. Dimce is the only son and one of two children; it is likely in my submission he would've received at least half, and very possibly rather more, from Rade, if the relationship hadn't been so close, and if the events of Rade's final years and the connections with Susanna, had not occurred. So the detriment is the comparison of the counterfactual where very probably there would've been a more distant but cordial and, or better than cordial relationship with Rade, and the current situation where Dimce faces the loss of his home of 20 plus years, and very possibly the loss of his income from MPC if he needs to house his family. That ends really the counterfactual.

Life decisions and marriage

1. Broadly speaking, I accept that the assumption created by the fourth to sixth representations, that the plaintiffs would live in and inherit the Illawong Property and be employed by Rade and Danica in return for caretaking duties, was a contributing cause in them making their respective life decisions to get married and raise a family in Australia. I accept their evidence to the effect that they had independently wished to get married and have a family, but had understood that they would need some guarantee of support from Dimce's parents to make that course viable.
2. As to Dimce, absent that guarantee, it is likely that he would not have married or had a family, as on his own evidence his artistic career was not going to be enough to support one. In this regard, there is some force in Mr Bilinsky's submissions on Dimce's counterfactual position. Indeed, it is not far removed from Mr McGrath's submission that Dimce would have continued with "following his art" and living "cheaply, but satisfyingly", following his passion on the north coast of New South Wales. Whether one characterises it that way or as the life of a "struggling artist" is not something I need to decide.
3. I accept that the assurance of support in the terms relayed by Dimce was particularly significant for Valentina in deciding to move to Australia with him. As both parties appeared to submit, Valentina would not have moved to Australia on the counterfactual. However, given there was little to no evidence as to Valentina's circumstances prior to meeting Dimce in Macedonia, it is difficult to say with any certainty how her life would have been different there, or what she was forgoing.

Financial contributions and expenditure on the Illawong Property

1. I have already addressed Dimce's claims in relation to the $25,000 "investment". In respect of whatever funds were handed over to Rade, Dimce parted with those funds before the Illawong Investment Representation occurred as claimed and I do not consider that it could relevantly be an act of reliance in respect of any subsequent representations.
2. I accept that Dimce otherwise made some very limited expenditure on the Illawong Property after 2002. However, I do not accept that his expenditure was as extensive as he asserted. His evidence is contrary to Valentina's evidence that she and Dimce were able to save money because Rade under no circumstances allowed them to undertake any renovations at the lllawong Property, with Rade telling her that "[w]hile I am alive, I decide what and how things will be done and who will pay for what. You have nothing that you need to pay for": CB 122[51]. Further, Dimce acknowledged that he had not produced a single invoice or receipt to show any payment for any of the works on the Illawong Property which he alleged that he undertook and paid for: T 77.11-.49.

Career decisions and opportunities

1. In relation to Dimce's career, I accept that for a period of about 10 years, from the end of 1987 or early 1988 to 1998, he pursued an art career and lived independently from his parents.
2. In cross-examination, Dimce indicated that he had come back to his family after that period because of "the ten years of psychic pressure" from his parents wanting him to come back: T 64.25-.26. Although, on the case pleaded and articulated by Mr McGrath in closing, the Occupation and Inheritance Representation appears to have occurred soon after Dimce returned (but still in 1998), I accept that Rade had previously provided some indication to Dimce that he would inherit the Illawong Property, and that Dimce would be employed by his parents and be able to live in the MPC flat: CB 46[48]-[50]. I am satisfied that Dimce's assumption particularly in relation to the latter two matters was a contributing cause to him returning from his period of independence in 1998.
3. Following Dimce's marriage to Valentina and the couple having children, I accept that Dimce had to some material degree put his artistic vocation to one side. While he was able to take on more artistic work after 2009, as his parents' health declined he had to focus on caring for them in addition to his family and the properties. I accept that the expectations created by the combination of the fourth to sixth representations were a contributing cause to Dimce prioritising those responsibilities over his artistic vocation, amongst others (including, no doubt, Dimce's filial obligations towards his parents).
4. In respect of Valentina, I accept that she decided not to defer having children for six years or so (in order to pursue further study in Australia) in response to pressure from Rade and Danica to have children. The expectation of receiving financial support, accommodation and inheritance from them would have likely contributed to that decision. I accept Valentina's evidence as to the reasons why she completed her further study in 2021 and not earlier.
5. I also accept that Valentina did not pursue employment opportunities outside of the family as a result of Rade's fervent view, which was also expressed to people outside the immediate family such as Lenche, that, as a result of their arrangement, Valentina and her family would be provided for. Had Valentina not held an assumption to that effect, I accept that she would have acted differently.

Investment opportunity

1. Mr McGrath made submissions that Dimce and Valentina were denied an opportunity to purchase the property at Heritage Drive, Illawong as an investment: POS [47]-[48].
2. Dimce was cross-examined about the investment opportunity briefly. Although not expressly put, the tenor of the cross-examination by Mr Bilinsky was that, realistically, the purchase of the property was beyond Dimce and Valentina's financial means at that point of time: T 78.1-.31.
3. However, for the following reasons, I am not persuaded on the balance of probabilities that, if the plaintiffs were indeed seriously looking to purchase the Heritage Drive property, it was as an investment rather than a home. First, Valentina's evidence indicated that in 2011 the plaintiffs wished to put their savings into renovating the Illawong Property, however Rade and Danica had refused: CB 122[50]-[52]. Secondly, Lenche's evidence was that she had understood that the plaintiffs had viewed a nearby house in Illawong not for investment purposes but rather for a home (although this was based off a conversation which she said took place in October 2012, rather than 2011): CB 177[12]; T 196.37-.45. I think the inherent likelihood is that Valentina, having been rebuffed by Rade in terms of renovating the Illawong Property, was looking for alternate accommodation.
4. Even if I be wrong on that, I am not convinced on the evidence before me that the plaintiffs had sufficient financial means in their own right to be able to purchase the Heritage Drive property as an investment in 2011.
5. Part of Valentina's cross-examination focused upon the asking price of the property and whether she had made follow-up enquiries with the agent handling the sale: T 146.36-147.29. Valentina indicated that she did not make follow-up enquiries because Rade was not happy with any proposed purchase of the property: T 148.8-.22.
6. Further, Dimce acknowledged that he had not adduced any supporting evidence that he and Valentina had applied to a bank, or any other financial institution, for approval of any kind of loan to be able to purchase the property: T 90.31-.44. Dimce accepted that he did not approach a bank for a loan, nor did he know that he and Valentina were going to be able to get one (considering that they each had a gross income of $21,000 at the time): T 91.45-92.7. His claim was simply that he and Valentina did not "get to the point of being able to try for it": T 92.7-.8.

Caretaking of properties

1. I generally accept the plaintiffs' evidence that they undertook certain caretaking duties in respect of the commercial premises in Mullumbimby and the Illawong Property over the years. I accept that those duties involved the plaintiffs and their children periodically moving between Illawong and Mullumbimby between 2002 and 2009. After 2009, it appears that it was predominantly Dimce who was travelling to Mullumbimby (albeit less frequently than previously) while Valentina stayed at Illawong with their children.
2. I accept that the expectation created by the combination of the fourth to sixth representations contributed to the plaintiffs' (in particular Dimce's) undertaking of caretaking duties at the properties in Mullumbimby, and they would not have undertaken those duties to the extent to which they did had they not held that expectation. One might reasonably suppose that more reliance was placed on the Employment Representation than the Occupation and Inheritance Representation, given that the caretaking duties were for the most part, as I understood it, what the plaintiffs were actually "employed" to do in the family business. However, given that the case was argued on the basis of a "single family arrangement" with a number of constituent aspects, it is difficult (if not impossible) to make that conclusion.
3. I do not accept that any caretaking duties undertaken in respect of the Illawong Property, which were mostly in the form of day-to-day domestic household duties, were done in reliance on any representation made by Rade and/or Danica. Their performance is explicable by the simple fact that the plaintiffs were living in the property rent-free on more than a temporary basis and thus had an interest in its upkeep and maintenance for their own comfort. As set out earlier, I am not satisfied that the plaintiffs outlaid any significant money to improve the Illawong Property, and indeed Rade forbade them undertaking any significant work.

Care for Rade and Danica

1. I find that the plaintiffs did provide some care to Rade and Danica in the form of driving them to the shops or for doctor appointments or other medical treatment, undertaking domestic household duties (including preparing food or washing clothes) and occasionally accompanying Rade and/or Danica (mostly Rade) to and from Mullumbimby. However, to the extent that Mr McGrath submitted that the plaintiffs provided "24 hour care" to Rade (T 336.35-.50), in particular in the period after Danica's death, I am not satisfied that the care was as extensive as they claim.
2. Between 2002 and 2010, Susanna, whose evidence I accept, visited Danica and Rade on a weekly basis and observed the relationship between her parents, Dimce and Valentina: CB 310[52]. She stated the following (CB 310[53]): 53. I observed my mother to be under great stress whilst Jimmy and Valentina were living with them and I often went to their home and helped Mum clean the house and cook. Jimmy and Valentina allege they were undertaking the household tasks such as cooking and cleaning. From my observations in the period 2002 to 2010 that was not the case and the majority of the responsibility fell to my mother and father for the support of Jimmy and Valentina. My parents were very independent and neither needed the assistance of Jimmy or Valentina to provide them with support.
3. It is clear that Rade travelled to Macedonia without Dimce in 2010 or 2011 (CB 78[4(a)]) and possibly in 2012 (it being unclear whether that was the same trip: CB 342[5]). According to Susanna, up until at least late 2017, Rade was managing the business of the Nelson Building: CB 307[39]. Up to that time, my impression from the evidence available is that Rade's health was manageable.
4. In about 2018, Rade's health deteriorated following the death of Danica.
5. Dimce had previously asserted that for a period of approximately two years and nine months after Danica's death, he provided particularly extensive personal care for Rade: CB 702. However, there is other evidence which gives more precision to what occurred and qualifies Dimce's general assertion. Having regard to the following evidence, which I accept, I do not consider that Rade ceased to live independently after Danica's death or that Dimce provided continuous care for a period of approximately two years and nine months, or at least an amount of care that could have given rise to any material strain on him.

Submissions

1. Mr McGrath submitted that the Court can infer that Rade knew the plaintiffs were relying on the representations: POS [107]. He submitted further (POS [107]-[108]): 107. … The promises were made at times of decision when Rade and where relevant Danica were trying to change the decisions of Dimce and Valentina. They were uniformly successful in so doing. 108. Practically speaking, Dimce and Valentina gave up their own aspirations in favour of the desires of Rade and Danica. This occurred on a number of occasions in the course of their lives. Rade (and Danica) must have been aware of this fact as they used it to achieve his vision of a continuation of his line and name within the Macedonian (and many other) cultural traditions and of continuing availability and service by Dimce and Valentina.
2. In closing, Mr McGrath submitted that Rade's knowledge may be inferred "from the fact that he made the promises and then [the plaintiffs] lived the life he wanted": T 288.16-.17.
3. Mr Bilinsky did not specifically address the knowledge issue in submissions, however I do not understand the knowledge issue to have been conceded.

Determination

1. As has been very recently confirmed by a majority of the High Court, it is sufficient for a proprietary estoppel by encouragement to arise that "either (i) a reasonable person in the position of the promisor would have expected, or (ii) the promisor actually expected, that the promise would be relied upon by the promisee in the general (detrimental) manner in which it was relied upon": Kramer at [35] per Gageler CJ, Gordon, Edelman and Beech-Jones JJ.
2. In this case, I am satisfied that, at least in relation to the fourth to sixth representations, Rade and Danica actually expected (and indeed knew) that the representations would be, and were being, relied upon by the plaintiffs. That much is demonstrated by the evidence of the plaintiffs and various other deponents as to conversations had with Rade and Danica after 2002.

Resiling issue

1. Little, if any, time was dedicated to this issue on the hearing. However, in his outline of submissions, Mr McGrath identified the acts of resiling by Rade as consisting of (POS [114]): 1. the fact that he was still attempting to evict the plaintiffs and their children from the Illawong Property; and 2. the fact that no provision is made for Dimce (or Valentina) in Rade's 2022 Will.
2. I accept that the contended acts of resiling by Rade are sufficient to constitute whatever is legally required by way of a promisor declining to make good the expectation to justify the plaintiffs in seeking relief based on the principles of proprietary estoppel.

Submissions

1. In the way in which the claim was argued, the countervailing benefits issues pertained to the issue of detriment and, as such, I propose to deal with them together. Notwithstanding that, I accept that an analysis of countervailing benefits is also relevant to the question of unconscionability, and I will provide some additional reasons under that issue.
2. I note at the outset that Mr McGrath did not accept that the plaintiffs bore the onus of accounting for countervailing benefits in establishing detriment: e.g. T 300.44-.47, 301.34-.42. I will consider the question of onus further in due course.
3. The plaintiffs' case for detriment was essentially characterised as involving what was described by Nettle JA in Donis at [34] as "life-changing decisions with irreversible consequences of a profoundly personal nature": POS [109]-[111], [113]; T 9.9-.10, 289.25-.27. An analogy was also drawn to the detriment in Riches, as referred to above: T 9.6-.9, .25-.27, 289.28-.45.
4. If that characterisation were not accepted, Mr McGrath submitted that there was nonetheless other detriment. He put that detriment in the following terms (T 9.46-10.6): MCGRATH: … Dimce and Valentina have lived in the Illawong home believing it to be theirs to occupy, and eventually theirs legally as well, for more than 20 years. They've built their lives around it, and to be deprived of the roof over their heads in circumstances where Rade wouldn't let them invest in another house, build their own investments, because really Rade wanted to be the patriarch, the man in charge of all the money, and they had to rely on his bounty, on him keeping his promises. In those circumstances, to be deprived of a roof over their heads and the property that has been their home for so long and that they were entitled to believe was their home is serious detriment.
5. In closing, Mr McGrath expanded on the individual aspects of each of the plaintiffs' detriment as follows (T 289.47-290.36): MCGRATH: … Dimce's detriments, taken now and in the last year or so, include that he would lose his home. Now, he has lived in the Illawong property for more than 20 years believing throughout that it was permanently his to live in and ultimately would be legally his too. He has paid for improvements and laboured himself on the property. HIS HONOUR: Is there any evidence of the value of the improvements? MCGRATH: No, your Honour. It wasn't really run that way. I suppose there's a little bit in Dimce's affidavit-- BILINSKY: There's no evidence. MCGRATH: --and, yes, some of the numbers were identified. They're in the tens of thousands rather than the millions. So they are admittedly very small in comparison with the current value of the property, but they're there. It is really more the mindset of being deprived of his home that I'm talking about. In addition, he has not required the return of his investment moneys that he understood had been invested in the renovation of the property. He has given up his freedom to be available for his mother throughout her life, and father, thereby restricting his vocation as an artist, something he is very keen on and is hugely important to him, and he hasn't pursued investment, but has really been the dutiful son. Valentina's detriment, or additional detriment, is that she will lose the security of a roof over her head for her and the children. She too has lived in the home for almost as long as Dimce believing that it would be hers forever. She was discourage[d] from undertaking education, including study to become a teacher, and this was done on the basis of enforcement of the arrangement which meant that she had to be in the household and available for her parents in law, and she was not allowed to undertake work outside the home and the family business. Your Honour will note that she is now working as a teachers' assistant, that her qualifications, of course, do not work her[e]. She did not obtain qualifications here. She has not established herself in the workforce. She doesn't have the qualifications and seniority that would be expected for someone of her age. It is submitted that your Honour would find that she seems to have the sort of personality where she could have been expected to go out and get the qualifications, get the work and now be in a much better position.

Countervailing benefits received by the plaintiffs

1. In his defence in respect of detrimental reliance, Rade pleaded that the plaintiffs have received a "significant financial benefit" arising from their residence at the Illawong Property since 2002, including but not limited to the fact that (CB 32[69]): (a) they have not paid rent since 2002, a period exceeding 20 years; (b) they have not paid for rates or property insurances for a residential property; (c) they have not been required to pay for maintenance or repair costs for a residential property; (d) they have been able to apply their income to savings or alternative uses without an obligation to pay for accommodation costs; (e) they have been able to provide stable accommodation for their children; (f) they have enjoyed the security of living in a well-appointed, modern property at no cost to them.
2. For convenience, I will refer to these matters broadly as falling within the category of "rent-free accommodation".
3. I should note that, in his NCAT statement, Dimce asserted that since January 2021, when Rade left the Illawong Property, he and Valentina have taken over the payment of all outgoings from the property, including rates, electricity and water (the exception being insurance, which continued to be paid automatically by Rade through his bank account): CB 726[55].
4. On the hearing, it was contended on behalf of Rade that the following were also countervailing benefits received by the plaintiffs (DCS [35]): 1. the payment of a consistent income for notional caretaking of the commercial properties at Mullumbimby from 2004 onwards (caretaking income); 2. a half share in the Burringbar Street Property; 3. an apartment in Macedonia, which was gifted to Dimce in or around 2012 or 2013 (Macedonian apartment); 4. a gift of the MPC in 2018; and 5. between 2018 and 2021, the receipt of approximately $147,000 - being rental monies which Rade was receiving from the Nelson Building (2018-2021 Nelson Building rent), still owned by Rade at the time - and applying such monies to the expenses on the MPC (now owned by the plaintiffs) as well as the Burringbar Street Property (of which the plaintiffs owned 50%).
5. In closing, Mr McGrath made a point of stating that the plaintiffs do not consent to any countervailing benefit that is not pleaded at [69] of Rade's defence being put forward or relied upon, and that he did not intend to allow Rade's case to traverse outside the pleadings as far as countervailing benefits went: T 338.40-.43. However, he accepted that this submission would face difficulties if indeed it were the plaintiffs who bore the onus of accounting for countervailing benefits.

The Burringbar Street Property

1. According to Dimce's affidavit evidence, funds for the purchase of the Burringbar Street Property were obtained (in part) from a self-managed superannuation fund for Rade, Danica and the plaintiffs which amounted to just over $340,353: CB 58[145].
2. Ultimately, however, Mr Bilinsky cross-examined Dimce on the basis that he had provided some capital contribution.
3. Specifically, Dimce accepted, by reference to exchanges of letters between his and Rade's respective solicitors, that he and Valentina's collective capital contribution to the Burringbar Street Property was $101,500 and Rade's capital contribution was $1,063,804.61, with the balance being made up from a joint Westpac loan: T 95.23-.35 (the figures referred to were obtained from Exhibit P2, a letter from the plaintiffs' solicitors, Ballantyne Law Group, dated 26 April 2022).
4. Dimce accepted that his father had offered him and Valentina a 50% interest in the property despite their financial contribution to the purchase falling far short of that: T 94.1-.29. However, he said that the arrangement was that "our 50% interest would be for the future of our children, and my father's 50% interest would also be … a gift from him for the future of our children": T 94.20-.22.
5. Dimce's affidavit evidence on the arrangement was as follows (CB 58[146]-[150]): 146. At the time, Ray said the [Burringbar Street Property] was to be an investment for our children, and he offered us the partnership on the basis that Valentina and I, as joint tenants of our half share (or 25% share each) would become tenants in common with Ray, whose share in the interest of the property made up the other 50%. … 148. During the period 17 February 2014 to 30 September 2018, wages paid to Valentina and me were deducted from the books of R&D Stoyanovski (later R Stoyanovski as sole trader after the passing of Danica). These amounts were not generally paid as wages from that partnership, but rather family drawings used as needed. 149. With the purchase of [the Burringbar Street Property], Ray instructed Valentina and me to take the rent received and use these funds to live on. 150. This arrangement concluded [in] September 2018, when ownership of the MPC was transferred to Valentina and I, discussed below.
6. According to Dimce, Rade expressed his desire to sell the Burringbar Street Property in early 2016: CB 58[152]. The plaintiffs resisted that course on the basis that their share of the property was the only investment which they had in their names at the time, and with some improvement the property had the potential for significant capital gain in the future: CB 58[153]. The plaintiffs understood that the Burringbar Street Property would be a long term investment for their children: CB 59[162], 128[89].

The Macedonian apartment

1. Dimce deposed that, in or around 2010 or 2011, Rade travelled to Macedonia and purchased two units in Bitola, which had an asking price of between $50,000 and $55,000 (AUD): CB 78[4(a), (c)]. In either 2012 or 2013, Dimce said that Rade transferred one of the units into his name, so that Dimce's children would have somewhere to stay when in Macedonia in the future: CB 78[4(b)].
2. Dimce said further that Valentina's family had been paying all of the expenses associated with the units in Bitola: CB 78[4(d)]. While up until 2020 the plaintiffs would send funds to reimburse Valentina's family, they have not done so since then and her family has attended to the maintenance and upkeep of the units.
3. In cross-examination, Dimce confirmed that Rade had gifted him the Macedonian apartment unencumbered, and that the apartment is not rented out: T 97.10-.17.

The MPC gift

1. In his affidavit evidence, Dimce deposed that his parents had told him in 2017 that they wished to gift him and Valentina the MPC: CB 60[173]. He said that Danica had told him the following (CB 60[174]): Danica: "I am satisfied that you have honoured your side of the agreement and I want to show you my appreciation." Danica: "You will have the security of income from the MPC and security of accommodation from the lllawong Property to live in, raise your family and inherit".
2. Valentina gave evidence to similar effect: CB 129[100]-[102]. She said further that it had been agreed that once the MPC had been transferred to the plaintiffs, their employment with Danica and Rade would stop immediately because they would then "have money to live": CB 131[103]-[104].
3. As noted above, the transfer of the MPC was made on 6 February 2019 pursuant to a deed of gift dated 30 November 2018: CB 60[177], 565-571, 573. The deed relevantly stated that the transfer was wholly gratuitous and involved no monetary or other consideration (cl 2(b)) and that Rade retained a right of occupation of the MPC flat for life (cl 2(f)). The MPC was transferred from Rade to the plaintiffs as joint tenants.
4. While a market appraisal for the MPC performed by Cochrane Property Solutions Pty Ltd was marked for identification as MFI-1 (T 236.4), it was not ultimately admitted into evidence. After the case for Rade had closed, Mr McGrath alluded to having in his possession a 2017 valuation of the MPC and made it available for Mr Bilinsky to view, in case he sought to tender the document. In any event, however, Mr McGrath did not seek to tender it: T 263.30-.50. As such, there is no evidence before me of the MPC's market value. However, it was contended on behalf of Rade that the MPC is of undeniably significant value (DCS [35(vi)]) and arguably is of much greater value than the Illawong Property: DCS [36].
5. As noted above, in his 2018 Will, Rade stated that "it is my intention that the [MPC] is to be gifted to my son during my lifetime however in the event that this gift has not taken effect at my death I give the [MPC] to my son DIMCE STOJANOVSKI": cl 4(a)(ii)(A). Dimce was also specifically bequeathed the Illawong Property in that Will: cl 4(a)(ii)(B). However, no provision is made for Dimce (or Valentina) in Rade's subsequent 2021 and 2022 Wills: Exhibit P1.

Income for notional caretaking

1. The evidence of the plaintiffs' caretaking income was largely limited to Dimce's tax returns from 2004 to 2020, which also contained Valentina's taxable income as his spouse.
2. Dimce accepted in cross-examination that the income which he declared in his tax returns (bar 2019 and 2020) was limited to income from the "R&D Stoyanovski account" (which I infer is the family business account) for his work as a caretaker: T 88.30-.33. Whilst that statement is correct for most years, from 2014 onwards Dimce also received partnership distributions in addition to his caretaker salary, which I will detail below. No income was ever recorded from any sales as an artist: T 88.35-.36.
3. I set out the figures for the plaintiffs' taxable incomes in the financial years 2004 to 2018 in the table below: Financial year Taxable income (Dimce) Taxable income (Valentina) 2004 $17,867 $17,867 2005 $17,867 $17,867 2006 $17,867 $17,867 2007 $17,796 $17,796 2008 $18,092 $18,092 2009 $18,736 $18,716 2010 $18,502 $18,514 2011 $21,184 $21,184 2012 $22,188 $22,188 2013 $24,040 $24,040 2014 $59,851 $22,237 2015 $36,844 $36,843 2016 $36,845 $40,145 2017 $45,438 $48,738 2018 $52,284 $52,285

1. In 2014, the financial year in which the Burringbar Street Property was purchased by the plaintiffs and Rade, Dimce's income included a distribution from the partnership "D & V STOJANOVSKI & R STOYANOVSKI" of $2,517 which, I infer, likely relates to the income from that property: CB 487-488. In the financial years 2015 to 2018, Dimce received similar partnership distributions of $2,309, $3,310, $11,738 and $15,982, respectively: CB 501, 517, 544 and 561.
2. In 2019, the financial year in which the MPC was gifted to the plaintiffs, Dimce's taxable income was $48,587, which consisted of $40,519 from net rental property income from partnerships, a gross salary of $9,076 from Rade and deductions of $1,008: CB 579. The partnership income was further broken down as follows: $26,867 from the partnership "D Stojanovski & V Tusevska-Stojanovski" which, I infer, relates to the MPC (which the plaintiffs came to own as joint tenants in that financial year); and $13,652 from the partnership "D Stojanovski & V Stojanovski & R Stoyanovski" which, I infer, relates to the Burringbar Street Property (which the plaintiffs and Rade owned together): CB 583-585. Valentina's taxable income for 2019 was $48,589: CB 580.
3. The reduction in Dimce's salary in 2019 is consistent with the fact that the plaintiffs and Rade had agreed that their employment would cease after the MPC had been transferred to them.
4. In 2020, Dimce's taxable income was $64,927: CB 614. Unfortunately, the version of the 2020 tax return in the Court Book has pages missing such that there is no breakdown of how that income is constituted, nor is Valentina's taxable income included.
5. In cross-examination, Dimce indicated that, in addition to the wage which he and Valentina received and declared in their tax returns, they also received "family drawings" which were essentially monetary gifts from his parents: T 81.13-.33.

Onus

1. As noted above, Mr McGrath did not accept that the plaintiffs bore the onus of accounting for countervailing benefits in establishing detriment. To that end, Mr McGrath referred the Court to Michael Barnes QC, The Law of Estoppel (2020, Hart Publishing) at [7.249]. The extract relevantly includes the following: There is authority for saying that as regards the requirement of detriment in proprietary estoppel the burden of proof both that the actions carried out were detrimental to the person raising the estoppel and that that person would suffer detriment if no estoppel were enforced is on the person who raises the estoppel.
2. Through a reasoning process which remains unclear to me, Mr McGrath submitted that the extract from Barnes, rather than confirming that the plaintiffs bear the burden of accounting for countervailing benefits in proving detriment, in fact confirmed the opposite: T 330.20-.22.
3. As observed earlier, the onus lies with the plaintiffs to prove the detriment alleged to have been suffered. More broadly, it is clear that, as a matter of law, the onus must be on the person alleging the estoppel to establish unconscionability, that is, to establish the three essential ingredients of representation (or some other form of encouragement), reliance and detriment: Steria Ltd v Hutchison [2006] EWCA Civ 1551 at [129] per Neuberger LJ (as his Lordship then was), cited approvingly in Sidhu at [59]. Thus, regardless of whether or not one considers countervailing benefits to be more relevant to question of the unconscionability of departure from the promise than to the question of detrimental reliance, the onus of accounting for countervailing benefits must be on the person raising the estoppel. I reject Mr McGrath's submission otherwise.
4. Mr McGrath then submitted that even if the plaintiffs bore that onus, it had been discharged: T 332.15. For reasons which I set out below, I reject that submission.

The contended benefits

1. Ultimately, Mr Bilinsky submitted that the plaintiffs had the benefit of: 1. the rent-free accommodation; 2. the caretaking income; 3. a half share in the Burringbar Street Property; 4. the Macedonian apartment; 5. a gift of the MPC; and 6. the 2018-2021 Nelson Building rent being applied to the expenses on the MPC (now owned by the plaintiffs) as well as the Burringbar Street Property (of which the plaintiffs owned 50%).
2. As noted earlier, for a benefit to be considered as a countervailing benefit, it must have accrued to the plaintiffs under the arrangement encouraged by the representations or been received as a consequence of a change to their position in reliance on the representations: Soulos at [394]; Daniel at [218]. Mr Bilinsky accepted that proposition (T 333.28-.38) and Mr McGrath did not provide any authority otherwise.
3. With the possible exception of the Macedonian apartment, I find that the abovementioned benefits accrued to the plaintiffs under the "single family arrangement" encouraged by the fourth to sixth representations and were received as a consequence of their change of position in reliance upon those representations.
4. In respect of the Macedonian apartment, Mr McGrath submitted that there was no indication of any connection between the gift and the representations in respect of the Illawong Property: T 338.35-.37. However, Dimce's evidence was that Rade transferred the apartment to him so that Dimce's children would have somewhere to stay when in Macedonia in the future: CB 78[4(b)]. It is not evident that Dimce would have received the apartment other than by reason of his reliance upon the fourth to sixth representations and bearing grandchildren. In that sense, it is arguable that the Macedonian apartment was a benefit which accrued to Dimce under the family arrangement. Nonetheless, for the purposes of assessing countervailing benefits, I am prepared to put the Macedonian apartment out of the equation.

The rent-free accommodation

1. Mr McGrath appeared to accept the fact that the plaintiffs did not have to pay outgoings or household bills for more than 20 years: T 332.44-.45. However, he disputed that the plaintiffs' rent-free accommodation (including the non-payment of outgoings) should be considered as a countervailing benefit: T 332.36-.46.
2. His basis for so disputing was unclear, but it seemed to relate to the fact that the plaintiffs had to provide some care to Rade and Danica whilst living at the Illawong Property.
3. The fact that the plaintiffs provided some care to Rade and Danica whilst living at the Illawong Property does not mean that the rent-free accommodation they received for their family was not a countervailing benefit to them. In such cases, the Court may exercise a wide judgmental discretion in assessing the receipt of such benefit against the burden of care: see e.g. Jennings v Rice [2002] EWCA Civ 159 at [51] per Robert Walker LJ. In this case, however, there are various other countervailing benefits which also have to be taken into account.

The caretaking income

1. Mr McGrath was equivocal in relation to whether the caretaking income was a countervailing benefit. He initially stated that the plaintiffs "were paid an income for what's called notional caretaking of the commercial properties", but then added: "That's not quite correct. The evidence is they were paid really to do what Rade wanted and Danica wanted": T 332.46-.49. He contended that the income related to the work done by the plaintiffs both in care of Rade and Danica and at the "two locations" (i.e. the Illawong Property and the Mullumbimby properties): T 334.1-.17.
2. I cannot see how the caretaking income is not a form of countervailing benefit to the plaintiffs. It was a benefit that had accrued to them as a direct result of the "single family arrangement" encouraged by the fourth to sixth representations. The plaintiffs enjoyed rent-free accommodation for their family and other monetary gifts from Dimce's parents for the entire period in which they received the caretaking income. In light of that, and considering the nature of the caretaking duties which the plaintiffs actually undertook, the amount of income which they received (as evidenced in Dimce's tax returns) was substantial.

The Burringbar Street Property

1. After some discussion, Mr McGrath's ultimate submission appeared to be that the plaintiffs will likely end up with just over $300,000 from the sale of the Burringbar Street Property: T 298.7-.14. For his part, Mr Bilinsky contended that, for the purposes of considering countervailing benefits, it is sufficient to appreciate that, notwithstanding the plaintiffs contributed significantly less than Rade to the purchase price (on his calculation, approximately 7.75%), they have enjoyed 50% of the capital appreciation of the property: T 296.22-.26.
2. On any view of it, the plaintiffs appear to have received a capital benefit by sharing between them 50% of the capital appreciation of the property in circumstances in which they did not contribute anything near 50% of the purchase price.
3. In addition, Mr Robinson's investigations revealed that, for some period of time prior to his engagement in 2021, Rade had not been receiving any of the rent from the Burringbar Street Property (of which he owned a 50% interest). Rather, all of that rental income was being paid to the plaintiffs, despite them only having a combined 50% interest in the property: CB 298[10], [13]-[14], 299[16(b)].

The MPC

1. In closing, Mr Bilinsky submitted that the sequence of Rade's 2018 Will and the subsequent deed of gift illustrates that Rade had determined to replace the gift of the Illawong Property with the MPC: DCS [36]. Much was also made of the fact that, on the plaintiffs' evidence, it appears that Danica had initially only promised the income of the MPC, as distinct from the fee simple estate, and so the ultimate gift was of much greater value than what had initially been promised: DCS [37]; T 329.1-.19.
2. Meanwhile, Mr McGrath contended that the MPC was not transferred to the plaintiffs as a replacement for the Illawong Property: POS [116]. It was put that since, at the time that the gift of the MPC was discussed, the Illawong Property was promised again, the Illawong Property was additional to the MPC and not a substitute. Rather, the MPC was intended to replace the income that the plaintiffs received from their employment: POS [117]; T 298.39-.40.
3. There was debate between myself and Mr McGrath regarding whether the capital value of the MPC could be taken into account. Mr McGrath disputed that it was correct to proceed on the basis that the plaintiffs were getting a capital asset and income: T 350.40-352.42. Despite Mr McGrath's fervent attempts to contend otherwise, I cannot see how the capital value of the MPC could be ignored as a countervailing benefit to the plaintiffs.
4. For whatever reason, the plaintiffs did not adduce evidence in respect of the value of the MPC. Notwithstanding, it goes without saying that the various commercial and residential premises which constitute the MPC must be of significant value.
5. I reject the plaintiffs' contention that the gift of the MPC cannot be considered a countervailing benefit because it was not transferred to them as a replacement for the Illawong Property. The plaintiffs contend that they had a "single family arrangement" with Rade and Danica which essentially encompassed their domestic and business relations. In my opinion, it would be completely artificial to say that the gift of the MPC was not made as a consequence of the plaintiffs' change of position.
6. Even on the plaintiffs' view of the MPC gift as a replacement for the income that the plaintiffs were receiving from their employment, the rent from the MPC after November 2018 is a form of countervailing benefit.

The 2018-2021 Nelson Building rent

1. Mr Robinson's assessment of the financial arrangements between 2018 and 2021 were that, from the rental income which Rade was receiving from the Nelson Building (owned solely by him), Dimce had paid $147,000 towards the expenses of the Burringbar Street Property and the MPC, notwithstanding the fact that the plaintiffs were only 50% owners of the former and the sole owners of the latter: CB 298[10]-[15], 299[16(a)], [17(a)].
2. Mr Robinson asserted, and it appears to be the case, that Rade has had to pay income tax on that income he received from the Nelson Building, notwithstanding that he did not benefit from it: CB 667.

Conclusions

1. I accept that the plaintiffs had each made certain life-changing decisions over 20 years ago in reliance upon the arrangement encouraged by Rade and Danica. Those decisions were particularly significant for Valentina, as they involved moving from her home in another country to start a life and family in Australia. However, detriment requires an understanding of the disadvantage that the plaintiffs would suffer by reason of their change of position in reliance on the encouraged expectation, if it were to be departed from.
2. In respect of Dimce, he has forgone the opportunity to pursue his artistic endeavours to a greater degree, but that sacrifice has not been complete or enduring. It is clear even on his own evidence that he was at times able to resume his career as an artist and had sufficient time to do so to perform credibly and achieve prize results (particularly in the period between 2009 and 2015: see CB 51[89]-52[92]). In any case, what he has sacrificed in terms of his art he has gained multiple times over in having the opportunity to get married and raise a family, which is something he independently wanted and would not otherwise have had without his parents' support.
3. In respect of Valentina, there was no evidence as to any opportunities in Macedonia she has forgone by moving to Australia. Once in Australia, I accept that Valentina deferred gaining tertiary qualifications in order to have children earlier than she otherwise would have wished, but she has not been denied educational opportunities completely. Essentially what has occurred is that she has had the benefit of having children, been given "employment" by Dimce's parents and deferred her education. In 2021 she gained professional accreditation and at least from April 2022 has been working most days of the week at a number of schools as a teacher's assistant.
4. I accept that there is detriment established in the plaintiffs', and in particular Dimce's, provision of assistance and care to Rade and Danica over the years, and their caretaking of the family's properties in Illawong and Mullumbimby. However, as I have explained earlier, I do not consider that the extent of that care and assistance was as extensive as the plaintiffs claim.
5. On balance, the countervailing benefits received by the plaintiffs are so significant as to lead to the conclusion that no real or substantial detriment has been suffered by them. They have lived and raised their family in the Illawong Property for over 20 years rent-free. While the plaintiffs have maintained the property and undertaken occasional minor works, this is not a case where the party raising the estoppel has undertaken significant expenditure in improving the property in the expectation that it would one day be theirs. Under the family arrangement, the plaintiffs have been remunerated by Rade for their caretaking duties, and have received significant proprietary interests in the Burringbar Street Property and the MPC, the latter of which they continue to derive rental income from. The plaintiffs' case for detriment is not made out.

Unconscionability issue

1. Were it more appropriate to consider countervailing benefits in terms of the unconscionability of departure from the promise or expectation, I find that the countervailing benefits that have accrued to the plaintiffs in effect subsumed or sufficiently made good the representations of Rade and Danica (specifically, the fourth to sixth representations) so as to make it not unconscionable for Rade to depart from the expectation that the plaintiffs could occupy, and Dimce would inherit, the Illawong Property.

Relief issue

1. Given my findings in respect of detriment, countervailing benefits and unconscionability, the plaintiffs' proprietary estoppel claim must fail. In those circumstances, I propose to dismiss the plaintiffs' claim.
2. Prima facie, costs should follow the event.

Cross-claim

1. My findings against the plaintiffs on the estoppel case are sufficient to determine the outcome of the cross-claim. Rade's cross-claim ought to succeed.
2. The plaintiffs' defence to the cross-claim recognised that, if their statement of claim were dismissed, they do not technically have any defence. Nonetheless, the plaintiffs contended that the four week period allowed for in the cross-claim for the plaintiffs and their family to vacate the Illawong Property was harsh and unreasonable. Instead, they sought a period of six months or more to vacate the property.
3. As matters currently stand, I do not see any basis for permitting such an extended period of time for the plaintiffs to vacate the Illawong Property, particularly in circumstances where they have been on notice since November 2021 that Rade was seeking to have them vacate the property.
4. However, in light of Rade's death and cognisant of potential exigencies of the administration of his estate unrelated to these proceedings, I consider that the most appropriate course is for the parties to bring in short minutes of order to give effect to these reasons for judgment in respect of what, if any, relief is sought on the cross-claim.

Orders

1. The orders of the Court are as follows: 1. Order that the plaintiffs' statement of claim be dismissed. 2. In light of the defendant's death and any potential exigencies of the administration of his estate unrelated to these proceedings, direct the parties to confer and bring in short minutes of order giving effect to the reasons for judgment in respect of what, if any, relief is sought on the defendant's cross-claim by 4pm on 3 February 2025. 3. In the event that the parties are unable to agree on a set of orders on the defendant's cross-claim as per order 2, direct the parties to provide their own short minutes of order by 4pm on 3 February 2025. 4. Order that the plaintiffs pay the defendant's costs of the proceedings (including those of the defendant's estate) on the ordinary basis. 5. Grant liberty to any party to apply to Meek J within 7 days by email correspondence to the Associate to Meek J to vary order 4, failing which the costs order will become a final order.

Endnotes

1. While the country known as of 2019 as North Macedonia has undergone various changes in the last century, I will for convenience henceforth refer to it as "Macedonia", as the parties have throughout these proceedings.
2. Dimce's surname is spelt differently to the other family members, namely with a "j" rather than a "y". The reasons for that remain unexplained on the evidence.
3. This quote was admitted on a qualified basis as belief under s 136 of the Evidence Act.
4. See Fiorenza at [45]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2024