Supreme Court New South Wales Medium Neutral Citation: Bosganas bht Michael v Bosganas [2024] NSWSC 1041 Hearing dates: 19 August 2024 Decision date: 19 August 2024 Jurisdiction: Common Law Before: Leeming JA Decision: 1. Judgment for the plaintiff, Lena Bosganas, for possession of the land comprised in folio identifier XX/XXXX being the land situated at and known as XX Fenwick St Bankstown NSW. 2. Direct the plaintiff to effect personal service upon the defendant of (a) these orders, (b) the reasons for judgment of the Supreme Court, and (c) the materials upon which the plaintiff relied in that Court, as soon as practicable. 3. Stay the execution of the judgment in Order 1 above until further order. 4. Grant leave to the plaintiff, no earlier than 28 days after the date upon which personal service has been effected pursuant to Order 2 above, to apply to the Court to set aside the stay and take steps to execute the judgment. 5. Direct that the plaintiff serve electronically by the last address notified the documents referred to in Order 2 above upon Mr Steve Kassem at the same time as personal service is being effected. 6. Direct the plaintiff to supply a copy of these reasons to the Law Society of NSW. 7. The defendant to pay the plaintiff's costs of these proceedings to date. 8. Grant liberty to apply on five days' notice. Catchwords: LAND LAW – possession – possession sought by registered proprietor by her tutor – whether basis for doubting efficacy of power of attorney – whether defendant had established common intention constructive trust or estoppel – judgment entered Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b) Cases Cited: Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 Galati v Deans [2023] NSWCA 13 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Category: Principal judgment Parties: Lena Bosganas by her tutor Lena Elizabeth Michael (Plaintiff) George Theo Bosganas (Defendant) Representation: Counsel: J Horowitz (Plaintiff) Solicitors: Liam Carney (Plaintiff) File Number(s): 2024/00097347 Publication restriction: Nil EX TEMPORE JUDGMENT 1. HIS HONOUR: The plaintiff, Ms Lena Bosganas, who appears by her tutor, Ms Lena Elizabeth Michael, has proceeded this morning ex parte against the defendant who is her older son, Mr George Theo Bosganas. The tutor is the plaintiff's granddaughter and the daughter of the younger son, Mr Con Bosganas. The two sons were born in 1960 and 1965 respectively. They are aged approximately 64 and 59. Without any disrespect or unwarranted familiarity I shall follow the course adopted during the hearing and refer to members of the Bosganas family by their given names. 2. The proceedings were set down for final hearing on 26 June 2024 by Davies J sitting in the Possession List. On that occasion, Mr Horowitz appeared for the plaintiff, as he has appeared today, and an appearance was recorded for the defendant by a solicitor, Mr Steve Kassem. There has been no appearance on behalf of the defendant before me today. On 16 July 2024, an affidavit of George sworn on that date was filed, electronically, at 12.59pm. The solicitor filing the affidavit on its face appears to be Mr Kassem. Mr Kassem by email sent to the plaintiff's solicitors at 1.47pm on 16 July attached, in draft, the cross claim, affidavit of his client and exhibits to that affidavit. 3. I have mentioned those dates because there has been no appearance by the defendant today. A series of documents have been tendered before me. The first (exhibit A) records under the heading, "Register of Disciplinary Action", that apparently on 30 April 2024 the Law Society refused to issue a practising certificate for the year ended 30 June 2024 to Mr Kassem. I note, incidentally, that although the email correspondence refers to "Steve Kassem", both his name in the form it appears on the covering page of George's affidavit and on the register of disciplinary action is "Ammar Steve Kassem". There is nothing to suggest that it is not one and the same individual. Mr Kassem was the sole director and shareholder of FutureLegal Pty Ltd (exhibit B). That company was the subject of a winding up order made by the Federal Court of Australia on 7 February 2024 (exhibit C). Further, a search today of the register of solicitors maintained by the Law Society of New South Wales records that Mr Kassem is no longer registered as a solicitor (exhibit F; there are two other individuals named Kassem, but they have different given names and operate out of different practices). 4. The reason for this recitation is twofold. The first is that I accept Mr Horowitz's submission that I should be satisfied that George has personal knowledge on his own part (as opposed merely to the imputed knowledge of his solicitor) of the fact that the hearing of these proceedings was set down for a final basis today. That inference is drawn from the fact that George has prepared an affidavit on 16 July with the assistance of his solicitor (by whom it was witnessed) which is intended to refute the plaintiff's application for possession as well as to substantiate the matters put forward in his cross-claim. 5. Secondly, although I am acutely conscious that Mr Kassem has not been heard and I make no findings in relation to what has occurred since 30 April 2024, there is at least a strong prospect that George, the client, has not been well served by what appears to be (based on the materials in the court book) the second solicitor he has sought to retain to defend these proceedings. That in turn has direct consequences for such relief as the plaintiff is entitled. 6. I am confident that Mr Horowitz, very properly, has sought to engage not only with the high points of his case and the low points put forward by the defendant, but also the high points of the defendant's case both in opposition to the relief he seeks and in support of the relief that was sought pursuant to a cross-claim. 7. A further peculiarity of this litigation is that although when the matter was set down on 26 June 2024, and more particularly when the matter returned before Davies J on 16 July 2024, the defendant was given leave to file a cross claim, no cross claim has ever been filed. The email to which I referred, exhibit E, sent on 16 July at 1.47pm, has Mr Kassem saying, "In the last few hours I have tried to file the Cross Claim and waited on the phone to no avail. I apologise for this delay as it may be the case I will need to arrange for the Cross Claim to be filed in person with the Registry." 8. Very properly, the plaintiff in seeking as she has today judgment for possession of the land, has addressed the reasons why both equitable responses in the draft cross-claim, which are sought to be supported by George's affidavit, should not be made out. Those matters may be summarised as being a claim for a common intention constructive trust and a claim for an estoppel based on a conversation with George and Con's parents said to have taken place in 1984 or 1985. 9. A brief background of the family history which is sufficient for present purposes is as follows. 10. There are two pieces of land in Bankstown to which I shall refer as Fenwick Street and Edward Street. Edward Street was transferred by Con's and George's parents in 1984 (CB144). That was at about the time of the conversation, and also at around the time that Con married and left the family home at Fenwick Street. Previously, the older brother, George, had married in 1982, but that marriage did not last, and in around September 1983, George returned to the family home at Fenwick Street. From the period from around 1986 to 1992, George and his parents lived together at Fenwick Street. For some five months in early 1992, while his parents went to Greece, George lived at Fenwick Street by himself. But on their return, George left that home following his father's request. 11. In 1996, 1997, and part of 1998, while building a new house at Edward Street, Con, his wife, and two children (Theo and Lena) returned and lived in the family home at Fenwick Street. George was not living there at that time. Sometime in 1998, Con and his family moved to their Edward Street home. In around 2007, following financial difficulties, Con and his family returned to Fenwick Street. Indeed, Con and his family experienced financial difficulties to the extent that he declared bankruptcy in July 2006. By then he had sold the Edward Street property and bought a property in Kangaroo Point, but that too was sold in about October 2007. The bankruptcy is significant, I interpolate, because of the changes to Con's parents' wills at around about this time. Thereafter, Con's son Theo continued to live at Fenwick Street until 2015 when he moved out upon his marriage. Prior to 2015, George had been living at least intermittently in the house and sleeping on a couch. After 2015, George moved into Theo's bedroom. Con's daughter Lena moved out in September 2019 when she was married. 12. By that time, Con's and George's father had passed away, on 11 March 2019, and fairly shortly thereafter their mother Lena was moved to where she currently resides at Gillawarna Village which is operated by Bankstown City Aged Care. Sadly, she suffers from dementia. There is a dispute on the material before me as to when that dementia took away her capacity, but it is accepted as I understand the material that she no longer has testamentary capacity. 13. The plaintiff, Lena, seeks possession of the Fenwick Street property. She is its registered proprietor. She is in the receipt of an aged pension, and the evidence before me establishes that while that pension is sufficient to meet the daily expenses of the nursing home (they are $61.96 per day), it falls short of meeting her other needs, both at the home and more particularly by way of medicine, and it falls short of meeting the outgoings for Fenwick Street. The evidence before me establishes that the operators of Gillawarna Village have advised (on 2 April 2024) that the total amount in arrears owed by the plaintiff at that stage was $7,689.92. That email advised that the debt required immediate attention. The plaintiff's solicitors responded within a week advising that steps had been taken to commence the sale of the property, and that proceedings had been commenced in this Court. So far as the evidence discloses there is no immediate threat that the plaintiff will be evicted for non-payment of the fees. There was also evidence that rates on the property have remained unpaid. 14. On 25 January 2024, the plaintiff's solicitors served a "Notice to Vacate" upon George. The notice states that the plaintiff's pension had been reduced in December 2023 based on the value of her assets. I interpolate to note that that appears to have been the case, but more recently the pension received by her has increased so that it is just sufficient to pay daily expenses. The letter proceeds to advise that the plaintiff was unable to meet her monthly accommodation fees, that they were in arrears, and that funds were urgently required to meet both accommodation costs and other expenses. The letter advised that the property was proposed to be sold and that "despite being requested to vacate the Property on numerous occasions you [George] have refused to do so". Notice was given to vacate the property and remove all belongings by 5pm on 15 February 2024, and the letter continued "To avoid doubt, any consent you previously may have had to occupy the Property is withdrawn". 15. The response from the first set of solicitors retained by the defendant was to refer to a recent dispute between the two brothers. I note that there is no dispute that last December there was a dispute between the two brothers which resulted in the two men (aged in their late 50s or early or mid-60s) coming to blows and also that George "does not accept the validity of the Power of Attorney and disputes its validity, legitimacy and authenticity". I should have said that the notice to vacate stated that the firm was instructed by Mr Con Bosganas, the younger son. It is convenient to deal with this point immediately. 16. On 24 January 2019, the plaintiff executed two documents: an enduring power of attorney in favour of Con, with his wife Elizabeth being a substitute attorney, and a second document appointing Con as the enduring guardian and his wife Elizabeth as an alternative guardian. The significance of both of those documents is that they were each prepared in the presence of a solicitor, Mr David Bentley, who signed a certificate for each. The certificate for the enduring power of attorney states that Mr Bentley explained its effect and that Lena "appeared to understand the effect of this power of attorney". The certificate for the enduring guardian states "Lena Bosganas appeared to understand the effect of this instrument and executed the instrument voluntarily in my presence." 17. There is no reason to doubt that if Mr Bentley were under any misapprehension as to Lena's capacity to execute either document, he would not have signed the certificate. Further, although in correspondence the solicitors formerly acting for George disputed the efficacy of the power of attorney, the affidavit prepared by him responding to the statement of claim does not provide any basis to sustain the proposition that Lena lacked capacity when executing either of those documents. 18. For those reasons, I am satisfied that (a) Lena, the granddaughter, acting as the plaintiff's tutor, and (b) Con, the son, acting as donee of power of attorney and enduring guardian, are both authorised to bring these proceedings. I reject the submission in correspondence to the contrary. 19. The substantial aspects of this dispute would have arisen on the unfiled cross-claim. The circumstances that it has not been filed are unexplained, and perhaps have to do with the cancellation of Mr Kassem's practising certificate. Nonetheless, I have been taken through the material which had been served by Mr Kassem in support of that cross-claim which, if it had been made out, would be a complete answer to the relief now sought. 20. There is a large dispute between the brothers as to whether the conversation in 1984 and 1985, whereby their father stated that the Fenwick Street property would be the oldest son George's occurred, or anything like it occurred. But there are also other, and indeed numerous – as is not atypical in cases such as this – disputes between the brothers as to the history within their family, both as to the care given by them to their parents, and what was said in relation to the property. But Mr Horowitz has emphasised that it is not necessary to resolve those factual issues because both aspects of the claims which George sought to advance are not made out, even taking his evidence at its highest. 21. As I have previously indicated, George spent some time intermittently in residence in the property with his parents. Over the last three decades, to the extent that he has been in residence, so too have been his brother and family. There is no suggestion that George at any time paid rent when he was there. There is evidence in the form of Con's affidavit of George falling out with his father through the use of illicit drugs and indeed the dispute, as I understand it, which led to a physical altercation last December between the two brothers was connected with ensuring that a gate in the backyard was kept closed which is not unrelated to the use of illicit drugs. 22. Insofar as equity will recognise a constructive trust based upon a representation, it is necessary to establish significant detrimental reliance. Non-pecuniary reliance may, especially in a family context, suffice: see the reference to "life-changing decisions with irreversible consequences of a profoundly personal nature" in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [84]. But in the present case there is very little in George's affidavit to suggest any material form of detrimental reliance upon the conversation that was said to have occurred in 1984 or 1985. Conspicuous by its absence is any suggestion that George abandoned other – brighter – opportunities and stayed in the premises on the strength of the promise. 23. Instead the position seems to be that he at times intermittently stayed rent free in the family home. There are suggestions in George's affidavit at paragraphs 23 and 58 that George cared for his aging parents. Even that evidence is relatively elliptically expressed. Thus George says, "As my parents became older, my care for them and time spent assisting them increased", and, "I have committed my life to my parents and I have lived in the Fenwick property since the day I was born." Against any inference that might be drawn from those or other more general propositions, Con gives evidence, principally by reference to appointments taken from his mobile phone, of numerous medical consultations that he says overwhelmingly he and he alone took his parents to. But even taking George's evidence at its highest, and accepting as I do that there were periods of time when George looked after his parents, there is nothing like the sort of detrimental reliance – for example as may be described as "life-changing decisions" – as could give rise to the response of the equitable remedy of a constructive trust of the land. 24. George also puts forward the proposition that there should be a common intention constructive trust of the land in his favour. The availability in Australia of such a doctrine is itself not free from controversy: see Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [111]-[120] and Galati v Deans [2023] NSWCA 13 at [53]-[59]. Another aspect which appears to be controversial is the content of the requirement of detrimental reliance: see Bijkerk Investments Pty Ltd v Bikic at [123]-[124]. It entirely unnecessary to address any aspect of those issues. The substantial difficulty confronting acceptance of a common intention constructive trust in the present case arises from the inferences to be drawn by the series of wills executed by George's and Con's parents starting from 1991. 25. It will be borne in mind that if, as George contends, there was a common intention that Edward Street having been transferred to Con during his lifetime at the time of his marriage, and George as the older son was to receive the family home, then a will would have been necessary to effectuate that intention. It is true that both mother and father executed many wills. However, none of them effectuated the intention which George gives evidence of. 26. By will executed on 9 September 1991, Con's and George's father, Theo, left his property first to his wife and if she predeceased then to both of their sons in equal shares. By subsequent will executed on 30 April 2009, substantially the same result was effected. A different approach was taken in the next will dated 12 January 2015. That will appointed his wife as sole executrix and trustee and left the entirety of his estate to her but in the event that she predeceased, appointed George as executor and then divided the estate three ways between George and Con's children, Theo and Lena. Relatively shortly thereafter, by will executed on 4 June 2015, Theo made the same dispositions but with the difference that in the event that his wife predeceased he appointed Con rather than George as sole executor and trustee. Finally, by will executed on 7 July 2016 which on the evidence before me is his last will and testament, the will reverted to the earlier pattern, namely, leaving the entire estate to his wife but in the event that she predeceased dividing it in equal shares between the two sons Con and George. Con's evidence before me – and it is supported by the fact of his bankruptcy in 2006 – is that he was involved in litigation in late 2014 and 2015 and against the possibility that he be made bankrupt once again, he advised his father to take steps to exclude him from an inheritance in the event that his father died. 27. As it turns out, Con's and George's father Theo predeceased the plaintiff. I also have before me her wills made in 2009, 2015 (twice) and 2016. They follow precisely the same pattern as the wills of her husband, leaving her estate to her husband, but in the event that he predeceases: 1. first, in 2009, to the sons in equal shares; 2. secondly, in 2015, excluding Con, and dividing the estate in three shares between George and grandchildren Theo and Lena; and 3. thirdly in 2016, which is the last will, in equal shares to Con and George in the event which has transpired, that her husband has predeceased. 1. The upshot is that on every one of those eight or nine occasions when if there were the common intention constructive trust for which George contended, it would have been necessary and appropriate for the substantial asset in the estate, namely Fenwick Street, to be devised to George, at no stage has George been given the entirety of that property. Instead, and consistently over a period of 25 years (in the case of his father Theo) and 7 years (in the case of his mother the plaintiff) George has been given merely a fraction of the Fenwick Street property. 2. I reject the contention that the application by the registered proprietor for possession of her land is defeated by a common intention constructive trust arising in the circumstances set out in the defendant's affidavit. 3. Further to the above, the plaintiff makes the point that there has been very substantial delay. On the evidence before me, the first time that a common intention constructive trust was asserted was in response to the proceedings commenced in this Court. There had been a series of fallings out between the brothers beforehand. More importantly, years have passed during which Theo has passed away and Lena, the mother, the plaintiff, has lost capacity, and hence there is very substantial forensic disadvantage in seeking to refute what George now wishes to advance, based upon conversations said to have taken place some 40 years ago. 4. It is not necessary to base this decision on laches. It is doubly unnecessary to do so because (a) it does not arise, and (b) the cross-claim after all has not been filed. However, what I have said is sufficient to indicate that George faces real difficulties in coming to this Court seeking equitable relief when, so far as it appears on the evidence before me, he has been the opposite of attentive to his rights, and indeed has let such time pass as has given rise to substantial and irremediable prejudice in the form of evidence which is no longer available from their parents. 5. I am acutely conscious, as is the plaintiff, that this hearing has proceeded today in the absence of the defendant. I am also acutely conscious that the absence of his representation may not be through any fault attributable to him, in light of the materials that have been supplied, sourced from Law Society and ASIC records. It is important, in my view, and when raised during argument, the plaintiff acknowledged as much, that the defendant have a full and fair opportunity to, speaking colloquially, "have his day in court". That day was intended to be today, but perhaps through reasons outside his control, that has not occurred. 6. For that reason I indicated during argument that I was not minded to grant leave which is sought to the plaintiff to issue a writ for possession over the property forthwith. For the same reason I also rejected (or more precisely, resisted the tender until it was withdrawn) the plaintiff's reliance upon material which had not been shown to have been served. However, I am minded to accept the plaintiff's primary case, which is an entitlement to judgment for possession, and shortly I will make orders in terms of paragraph 1 of the statement of claim that was listed for final hearing today. 7. As noted above, the defendant is entitled, if so minded, to approach the Court to set aside the orders that have been made adverse to him and in his absence: Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b). The plaintiff is also entitled to have the benefit of legal advice from a lawyer who has a current practising certificate. Those considerations have led to a position which, as I understand it, following an exchange between myself and Mr Horowitz, is not opposed by the plaintiff, namely, that the appropriate course is for the plaintiff to be directed to effect personal service on the defendant of the entirety of the materials relied upon in this application, together with the orders of this Court and the reasons for judgment. 8. Although that is burdensome and perhaps a little unusual, the reality of these unusual circumstances is that the defendant is entitled to obtain legal advice on his entitlements, and in order to obtain that advice in a timely and cost efficient way, the best way of achieving that is in effect for the plaintiff to provide what in effect is a brief to whomever the defendant may seek to get that advice from. 9. In the meantime, I have expressed the view that it would be inappropriate for the plaintiff to take any steps by way of execution – whether by serving a writ on the property, issuing a writ of possession or serving a bankruptcy notice – until the Court is satisfied that the defendant has been made aware of the orders and the basis on which they are made, and of his entitlement should he see so fit of approaching the Court to be let back into the litigation. 10. For those reasons I make the following orders: Mr Horowitz, these orders will be entered today and we will give you a copy of them when they are entered on JusticeLink, and please feel free to interrupt me and tell me I have the orders slightly wrong. 11. HOROWITZ: Thank you. 12. HIS HONOUR: Order 1 will be in terms of para 1 of the statement of claim. Judgment for the plaintiff, Lena Bosganas, for possession of the land comprised in folio identifier XX/XXXX, being the land situated at and known as XX Fenwick Street, Bankstown, New South Wales. 2. Direct the plaintiff to effect personal service upon the defendant of (a) these orders, (b) the reasons for judgment of the Supreme Court and (c) the materials upon which the plaintiff relied in that Court, as soon as practicable. 13. I am just interrupting myself. There have been problems of service in the past. I think it is inappropriate to give you a period of time, but the sooner you do it the better, because I am about to make an order which is 28 days from service. 14. HOROWITZ: Yes, thank you. 15. HIS HONOUR: 3. Stay the execution of the judgment in Order 1 above until further order. 4. Grant leave to the plaintiff, no earlier than 28 days after the date upon which personal service has been effected pursuant to Order 2 above, to apply to the Court to set aside the stay and take steps to execute the judgment. 16. Mr Horowitz, I have not mentioned this, I am inclined to think because you've hinted at and I've hinted at, the circumstances of Mr Kassem, that I should direct you to simply serve in the usual way Mr Kassem the same documents. I can see what is going to happen. There is a possibility that the defendant is going to say Mr Kassem behaved badly and for that reason he should be let back in to the litigation. The sooner Mr Kassem finds out about this, the better as well. 17. HOROWITZ: Yes. 18. HIS HONOUR: You have not been heard on this. I am just thinking of directing you to electronically serve, when they are ready, the same materials that you are going to personally serve upon the defendant. 19. HOROWITZ: I concur with that approach. I was just thinking, and I don't know the answer, just as a matter of public protection, if what I have relied on is true, that there was a solicitor or a legal practitioner practising without a practising certificate, there is a risk to the public should Mr Kassem continue to purport to be a practising solicitor. Might there be a step taken or direction by the Court in relation to notification of the matter being directed to The Law Society in relation to this matter? 20. HIS HONOUR: It is for them to take any such step, but you're quite right, I will make that direction. 5. Direct that the plaintiff serve electronically by the last address notified, the documents referred to in Order 2 above upon Mr Steve Kassem at the same time as personal service is being effected. 6. Direct the plaintiff to supply a copy of these reasons to the Law Society of New South Wales. 7. The defendant to pay the plaintiff's costs of these proceedings to date. 21. [Application for indemnity costs] 22. HIS HONOUR: Application is made by the plaintiff for an order for indemnity costs essentially on the basis that the cross-claim was never filed, and had it been relied upon, it was destined to fail. I am disinclined to make any such order. It is far from self-evident that the deficiency in the filing of the cross claim is attributable to the defendant as opposed to his solicitor and in those circumstances nothing more need be said as to the inappropriateness of visiting upon the client an order for indemnity costs as is sought. 23. [Discussion re third party costs orders] 24. HIS HONOUR: The transcript will then make it clear that nothing that's happened to date should stand in the way of any application for a third party costs order should the plaintiff be so minded. ********** Amendments 20 August 2024 - - anonymised folio identifier in orders and [39] 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: 20 August 2024