She then noted:
"This was not the first time Charlie had said this to me. He had told me this a number of times over the years I lived on the property."
23 It is extremely unfortunate that she did not give any details of these other events or tie them in with the work that she said she did. She then says in para 37:
"Two days before Charlie died he again said to me words to the following effect: 'If anything happens to me you can stay on in the house. You can live upstairs and Theo downstairs for the rest of your lives'."
24 That is as far as Mrs McDonald's evidence went. It will be observed that there is very little linkage with the alleged promise and the work she did and that she never actually says that she did work only because of the promise. This is significant because there are three inferences that might be drawn: (a) that she did the work because of the promise; (b) that she did the work in lieu of rent; and (c) that she did the work out a friendship.
25 The second plaintiff, who is still alive, gave evidence that in 1998 (para 22 of his affidavit of 7 December 2004):
"When Charlie was admitted to hospital … Charlie first told Mabel and I that we could live in the house if he died. Whilst we were waiting for the ambulance Charlie said words to the following effect to Mabel and me: 'You don't have to worry about the future at all. If something happens to me you and Mabel can live in the house. You can live downstairs and Mabel can live upstairs.'"
26 Evidence was given in para 26 that around Christmas 2000 and before Charlie went to hospital Mrs McDonald, Douglas McDonald and the second plaintiff were with him and Charlie said:
"I think I am going to die. If something happens to me don't be worried Mabel, you can live upstairs with Doug and Theo you can live downstairs."
27 In para 38, which refers to the time when Charlie went to hospital at Camden, the second plaintiff says, "He again made promises to Mabel and I to the same effect: 'Mabel, don't be worried. You and Doug can live upstairs when I die and Theo can live downstairs.' "
28 The second plaintiff does say in para 27 of his affidavit of 7 April 2005 that because of the promises he believed that he would have a secure place to live and on that basis he felt able to refuse the work and to continue to look after Charlie in the property: "I certainly relied on the promises made by Charlie in this regard."
29 The defendant is a close relative of Charlie and is the executor of Charlie's estate. The defendant is very adamant that the plaintiffs have completely overstated the case. He says Mrs McDonald and her son and the second plaintiff virtually did nothing and that he hardly ever saw any of them do any work on behalf of Charlie. He called as witnesses some other acquaintances of Charlie.
30 Ms Tibbey for the plaintiffs cross-examined them without, I think, much effect except that when one of the witnesses was leaving the witness box he made it quite clear that he considered that the plaintiffs' claims were completely fraudulent and he would like to punch one of them to show his displeasure. This, I think, even more than the cross-examination, showed that that witness was not a witness for whom one would give very much credit because he was so emotionally involved with the righteousness of the defendant's case.
31 In any event, it is very difficult to accept the defendant's evidence on this matter. Not only was he away from Australia for large periods of time, as Ms Tibbey points out, there are quite a number of references in the medical records which were composed by persons with no axe to grind which do show that Mrs McDonald and the second plaintiff were involved in the care of Charlie over a long period of time and they were even thought by the medical professionals to be people who must be next of kin.
32 Accordingly, it seems to me on the facts that I should accept, on the balance of probabilities, that both Mrs McDonald and the second plaintiff, Mr Jobse, did considerable work for Charlie personally and in and about Charlie's property.
33 The main difficulties that the plaintiffs have are that there is little evidence tying up the promises with the work that was done; that the claim is a claim against a deceased estate with very little corroboration of the promises that were made other than the plaintiffs themselves; that the work that was done could be in consideration of the promises or it could be in consideration that no rent was paid for them being on the premises or it could be out of friendship. There is the further difficulty that the promises were very vague.
34 As I said, with reference to authority in Barnes v Alderton [2008] NSWSC 107, there are a number of cases where a person makes a promise to leave someone property if they die and that sort of promise is usually completely unenforceable for a number of reasons, the main reason being that there is no equity to perfect an imperfect gift. Further, prima facie everyone in the community knows that there is freedom of attestation and that promises to leave people property after they die is always subject to someone changing their will. However, as Robert Walker LJ said in Gillett v Holt [2001] Ch 210, it is possible that a promise to leave property after death can be enforced under the doctrine of proprietary estoppel by encouragement if the facts and circumstances show that despite the general rule that wills are irrevocable, this promise was made on the basis that it was to be implied that the promise was irrevocable. There is some flavour in the evidence that this was so, but it seems to me that without the detailed evidence that one would expect given by both Mrs McDonald and the second plaintiff of the actual terms of the promises and of them saying that had they not believed the promises, they would not have continued to work and that they considered the promises to be irrevocable, the case is very flimsy.
35 I note the second plaintiff makes a statement about that but it does not seem to me to be particularly strong for me to be able to make a finding in his favour, on the balance of probabilities.
36 Mr Southwick, who appears for the defendant, also says that where one has a promise which, if one was making it as a matter of common law, would be void for uncertainty, then equity normally does not enforce it under any guise: see Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 at 14, a case involving the specific performance of a shopping centre, but the principle is applicable in the instant case.
37 To my mind, even though the plaintiffs did do work for the estate, I do not consider that the evidence is strong enough in this claim against a deceased estate for me to reach the conclusion that the work was done on the basis of the promise. Even if I had come to the view that there was sufficient material, I would have had great difficulty in working out what the promise was. Was it to confer an equitable life estate? Did it involve subdivision? Probably the answer to both questions is "No", and if it was otherwise, s 23C of the Conveyancing Act 1919 as pleaded by the defendant would bar the claim.
38 Accordingly, it would seem that there was some promise to grant a personal life interest, but what were the terms of the personal life interest? Was it for the electricity, rates, maintenance (fair wear and tear excepted) to be paid by the occupiers or what?
39 But even assuming that there was such a promise, so far as Mrs McDonald is concerned, if she had an entitlement in equity on the basis of proprietary estoppel, the most that she could expect would be to continue to live in the subject property, or, if that became untenable, to be provided the cost of alternative equivalent accommodation between 28 October 2004 and her death in 2006. If this is the basis of equitable compensation, then Mrs McDonald was living with her daughter at no cost. So this would be minimal. In fact, even though the evidence is that that was very cramped living, she did not have to pay any rates or maintenance etc, on the Leppington property.
40 Ms Tibbey says that this is the wrong way of looking at it, that when one looks at what Handley JA said in Sullivan v Sullivan [2006] NSWCA 312 (which, although a dissenting judgment, is acknowledged to state the principles), the way in which one deals with this situation normally is to fulfil the expectation: see also Giumelli v Giumelli (1999) 196 CLR 101. There is, of course, a great deal of truth in that but it is not the whole story as cases like Jennings v Rice [2003] 1 P & CR 100 show, that even if one does opt for fulfilment of the expectation rather than compensation for it, one has to apply proportionality and the claim made by Mrs McDonald appears to be, on one basis, $350,000; on another basis, $15,000. The first would be far out of proportion to anything that the court would award.
41 It seems to me, that the way in which one addresses what is called the minimum equity would be the cost of alternative accommodation. That is virtually nil.
42 So far as Douglas McDonald is concerned, there is just no evidence that would allow me to work out any loss that he may have suffered. The promise, of course, was never made to him at all, so it would be part of the damages or equitable compensation which would be part of Mrs McDonald's claim.
43 The alternative case in restitution based on a quantum meruit fails for similar reasons. There is just insufficient material to show what was the arrangement under which the work was done. Thus, it would seem to me that the first plaintiff's claims fail.
44 Mr Jobse's claim is a little stronger on the evidence but, again, it suffers from most of the defects that were endemic in Mrs McDonald's claim. I accept that he did work, although I do have doubts in view of the other jobs he had in, and his living in, the Crookwell area whether he actually did such work as he claimed, but I find that he did more than Mr Hrubala would give him credit for. The promises that he relies upon go back to 1998 and although he says, in paragraph 27 of his affidavit of 7 April 2005, with respect to one of the promises, that he gave up looking for other things, there is really very slender material as to any detriment he suffered, and he was living rent free on the premises and for a considerable part of this time he was unemployed. Again, I do not think there is sufficient material in a claim against a deceased estate to uphold his claim.
45 As to the secondary claim under the Family Provision Act 1982, Ms Tibbey says that Mr Jobse was part of the household of the deceased. Being part of the household usually involves some sort of family connection. Perhaps it doesn't always, but it usually does. Here, the people were not living in the same building, though they were living in close proximity. There does not appear to be that degree of family connection. Again, even if there were a household connection so as to make Mr Jobse a person under clause (d) of the section 6 definition of "eligible person", I cannot see factors warranting the making of an order. He really was a person who just did a whole lot of odd jobs and performed personal services for the deceased, whilst he lived on the property for some considerable time free of charge. There is no indication at the moment that he has any needs. He is living somewhere in Alice Springs. I do not know where or under what circumstances. His assets as at 2005 are only very modest, but we do not know what they are today or what his income is and, accordingly, that claim fails also.
46 Accordingly, in my view, the plaintiffs' claims should be dismissed with
costs. I so order. The exhibits may be retained, though Exhibit PX06 may be returned.