Supreme Court New South Wales Medium Neutral Citation: Sion & Ors v NSW Trustee and Guardian [2012] NSWSC 949 Hearing dates: 31 July 2012, 1 and 2 August 2012 Decision date: 20 August 2012 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Statement of Claim dismissed Catchwords: [CONTRACT] - alleged statement by the deceased to leave her estate to the plaintiffs if they "looked after" the deceased and her husband and looked after their "affairs" - whether intention to be legally bound - whether deceased suffering from dementia at time of alleged statement - capacity generally and in particular in relation to the consequences of the alleged statement. [ESTOPPEL] - whether alleged representations made - whether reliance - whether detriment established. Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Attorney-General v Parnther (1792) 3 Bro CC 441; (1792) 29 ER 632 Balfour v Balfour [1919] 2 KB 571 Banks v Goodfellow (1870) LR 5 QB 549 Bovaird v Frost [2009] NSWSC 337 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Darmanin v Cowan [2010] NSWSC 1118 Foster v Mackinnon (1869) LR 4 CP 704 Gibbons v Wright (1954) 91 CLR 423 Gillett v Holt & Anor [2000] EWCA Civ 66; [2001] Ch 210 Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 Horton v Jones (1935) 53 CLR 475 Jones v Padavatton [1969] 2 All ER 616 Lieschke v Lieschke [2003] NSWSC 743 McKeand v Thomas [2006] NSWSC 1028 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; (2010) 241 CLR 357 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 Re Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608; 39 FCR 31 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Stinchcombe v Thomas [1957] VR 509 Sullivan v Sullivan & Ors [2006] NSWCA 312 Susann Simpson-Cook v William John Martin Delaforce [2009] NSWSC 357 Thorner v Major [2008] EWCA Civ 732 Wakeling v Ripley (1951) 51 SR (NSW) 183 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Category: Principal judgment Parties: Ezekiel Haiem Sion (First Plaintiff) Louisa Joseph (Second Plaintiff) Hilda Mordecai (Third Plaintiff) NSW Trustee and Guardian (Defendant) Representation: AL Hill/MM Pringle (Plaintiffs) LJ Ellison SC/HP Bennett (Defendant) DG Thomas (Plaintiffs) Clinch Long Letherbarrow (Defendant) File Number(s): 2010/247928 Publication restriction: Judgment 1The three plaintiffs, Ezekiel Haiem Sion, Louisa Joseph and Hilda Mordecai, are respectively a nephew and nieces of the late Meda Chamita (Meda). For ease of reference and without intending any disrespect I will refer to the plaintiffs separately as Ezekiel, Louisa and Hilda. The defendant, NSW Trustee and Guardian, is the Administrator of Meda's Will. 2The plaintiffs claim that "in or about mid 1997" Meda and her husband, the late Abraham Chamita (Abe) made an agreement with them that in consideration for them "taking care of" Meda and Abe and taking care of "their affairs", Meda and Abe would leave their estates to the plaintiffs (the Agreement). The plaintiffs claim that although they took care of Meda and Abe and took care of their affairs, Meda breached the agreement by failing to leave her estate to the plaintiffs. In the Statement of Claim filed in July 2010 the plaintiffs sought a declaration that the defendant holds the whole of Meda's estate on trust for them. They also sought an order that the defendant distribute the whole of Meda's estate to them. However during final submissions the relief sought was limited to three-elevenths of the value of Meda's estate. This adjustment was made on the basis that the plaintiffs' claim that Meda promised to leave her estate to all her nieces and nephews. 3The plaintiffs also make a claim that in or about 1997 Meda represented to the plaintiffs that she did not have a Will and that if the plaintiffs cared for her and Abe and looked after their affairs, she would leave her estate to the plaintiffs. It is claimed that the plaintiffs relied upon these representations to their detriment and that Meda knew that they were so acting in reliance upon the representations. The plaintiffs claim that the defendant is bound by the representations and that it would be inequitable for the defendant not to be so bound. The claim as pleaded in the Statement of Claim is that "subject to the principles of equitable or proprietary estoppel" the defendant is bound by Meda's representation. 4The defendant claims that the plaintiffs' evidence of the conversation with Meda and Abe does not establish that Meda intended to enter into a legally binding relationship with the plaintiffs. This claim is based partly on the terms of the conversation and partly on the difficulty in ascertaining the terms with any certainty. The defendant also claims that at the time of the alleged conversation Meda was suffering from dementia such that she would not have had the requisite intention to enter into a binding legal agreement. Background 5Meda was the daughter of Ezra and Kitty Messiah. She had two brothers, Mordecai and Joseph, and a sister, Sophie. Meda was born in Calcutta, India (on 4 August 1921). She lived her early life in Singapore with her parents and siblings and after the death of her mother the family immigrated to Australia. Meda's sister, Sophie, married Sion Ezekiel in 1938. Mr and Mrs Ezekiel had 8 children being the three plaintiffs, Katie, Rachel (now deceased), Ezra, Joseph and Solomon. 6Meda met Abe in Sydney and they married on 17 January 1954. They did not have any children and for the whole of their married life they lived in Clyde Street, Bondi until they moved into an aged care facility in Waverley (Meda in 1998 and Abe in 2001) known as Phillip House. 7It is apparent that in 1968 an investment block of flats in Gould Street, Bondi (Gould Street) was purchased in Meda's name. On 26 September 1968 Meda executed an undertaking and agreement addressed to Abe that provided that in consideration of Abe advancing to Meda the sum of $7,000, she would provide security over Gould Street for the principal sum and interest at the rate equivalent to the rate charged by the Commonwealth Trading Bank of Australia on first mortgages (the Loan Agreement). The Loan Agreement also provided that Meda would repay the principal sum by instalments of $250 on each of the last days of March, June, September and December each year with the first instalment being payable on 31 December 1968. It also provided that Meda would repay the whole balance of the $7,000 together with interest by 30 June 1975. 8On 29 September 1966 Meda and Abe executed mutual Wills in accordance with which they left each other their estates; or if one or other predeceased the other, to any children of the marriage in equal shares; and if there were no children of the marriage then to Zsyfra Aptekarz (Zsyfra), Abe's cousin, and such of Zyfra's children who survived Meda. Zsyfra died on 16 September 1995 and is survived by her husband Naftali Aptekarz (now aged 81 years), and four children. I am satisfied that these Wills were made to honour an obligation that Abe felt he had to his cousins for saving his life and protecting from the Nazis during the Second World War (referred to later). 9On 24 January 2001 Abe executed a new Will revoking all former Wills and appointing Victor Gross and Ezekiel as his executors. That Will included the following provision: IF my wife MEDA survives me then I GIVE her all the net income from my estate during her lifetime. It is my wish that the care of my wife remain with my nephew (by marriage) EZEKIEL. 10The balance of the Will provided for 1% of the estate to go to the Spastic Centre of New South Wales with the residue of 99% going to Abe's nieces and nephews as to 77% shared equally between Louise, Katie, Hilda, Ezekiel and Solomon; 11% as between Ezra (as to 5%) and his two children (3% each); and the balance of 11% on trust for Joseph. Abe died on 25 July 2005 and Meda died on 15 May 2009. The Conversation 11Ezekiel, his wife Sophie, and Louisa gave evidence of the conversation that the plaintiffs allege occurred in 1997 with Meda and Abe upon which the plaintiffs rely to claim that they are entitled to the relief sought. Ezekiel's evidence 12Ezekiel arrived in Australia in approximately 1965 aged 18 years. Ezekiel married his wife, Sophie, in 1969. They lived in Dulwich Hill for approximately five years and then moved to Turramurra in 1974 where they still reside. From 1974 to 1998 Ezekiel worked in the Commonwealth Public Service, firstly at the Australian Bureau of Statistics and then at the Commonwealth Employment Service (CES). Ezekiel and his wife have two sons, the first born on 8 September 1975 and the second born on 30 March 1977. 13Between 1974 and 1997 Ezekiel "rarely" or "hardly ever" visited Meda and Abe at their home. There was some evidence that telephone calls may have occurred from approximately 1987, however they also appear to have been rare. Ezekiel claimed in his affidavit evidence that "in early to mid 1997" Meda telephoned him and said, "we want you and your sister Louisa to visit us, we wish to talk to you about our future". Ezekiel's affidavit evidence was that when he, his wife Sophie and Louisa visited Abe and Meda, the following conversation took place: Abe: We want your assistance in managing our affairs. We're getting on and we're not well. Meda: Yes, please, we want you to do this. Ezekiel: What do you want us to do, do you want us to look after your affairs or organise help? Meda: That's what we want you to do, I'm not well and can't cook much. Louisa: Who are you going to leave your estates to in your Wills. Abe: To you, to do this. Meda: Yes, to you. Abe: There is no one else. 14Ezekiel, gave further affidavit evidence that in October 1997 there was another conversation in the following terms: Meda and Abe: We need more of your help in managing our affairs. Abe: I'm having difficulty coping with Meda's poor health and with routine matters such as paying bills and shopping. This is exacerbated by Meda having her arm in a sling. Meda: I'm not well, I've got my arm in a sling. I can't cook and I can't look after myself. 15Ezekiel claimed that after the conversation with Abe and Meda in early to mid 1997 he and Louisa committed themselves to keeping a "close eye" on Meda and Abe by telephoning and visiting them and by keeping regular contact with them. He said that he did not wish to intrude too much because he wished "them to continue to feel empowered in managing their lives". Ezekiel claimed that he would visit them each weekend and telephone them during the week. However in October 1997 when he visited Clyde Street he noticed that Meda's arm was in a sling and plaster. Meda informed Ezekiel that she had fallen and broken her arm. It was after the conversation in about October 1997 referred to above that Ezekiel decided to assist Meda and Abe to a "greater extent". He said he could do this because of his pending redundancy from work that would provide him with more time to assist them. He also claimed that he was "encouraged" to provide a higher level of assistance because they had said that they would leave their estates "to you to do this". His affidavit evidence was that he did not request any payment from Meda and Abe for the effort involved because they had promised to leave their estates to him and his siblings. 16Ezekiel was made redundant on 27 April 1998 at the age of 55 years. At that time he had the option of making application to be deployed in other divisions of the Commonwealth Public Service. However he claimed that in order to provide the high level of assistance necessary for Meda and Abe he was "unable to engage in full-time employment" to provide "for my wife and family and our future". He also claimed that he "felt that my financial future was taken care of with the eventual bequest" from Meda and Abe and he therefore "felt able to assist them with the level of assistance they required, unfettered by any financial concerns". 17Ezekiel gave evidence that in late 1997 he requested Meda and Abe to prepare Powers of Attorney and Wills if they did not have Wills. His evidence was that neither Abe nor Meda informed him that they had existing Wills or Powers of Attorney. It was not until late 1998 that Abe executed a Power of Attorney in favour of Ezekiel and he did not execute his Will until 24 January 2001. Ezekiel's affidavit evidence was that by January 2001 Meda was "too ill with Dementia" to prepare a Will. 18Ezekiel also gave affidavit evidence that from 1997 he concentrated on improving the "quality of life" of Meda and Abe and for the "next 12 years" he attended to their needs. He claimed that he would visit them at least once a week and more frequently if there were medical or other appointments to be attended. He claimed that from 1 July 2001 he assisted Meda and Abe in a range of matters listed in an Annexure to his affidavit sworn on 17 June 2010 (the List). The List was prepared from memory for this litigation (tr 27). It is headed "Matters attended to by Zeke for and on behalf of Meda (and Abraham) Chamita from 1 July 2001". It includes matters that would not have occurred or been necessary after Meda (in July 1998) and Abe (in 2001) moved into Phillip House (tr 27, 28). The List does not specify the time the activities might have taken and in most instances it does not specify how often the activity occurred. However, there are some exceptions, for instance, there is the claim of visits to Meda and Abe at "the nursing home (at least once a week)". In cross-examination Ezekiel said that it was his practice to visit Phillip House on Mondays from about 11.00 am to about 2.00 pm (tr 20). There are also claims mail was collected "at least once a week" and that "monthly" budgets were maintained and "monthly rentals" from the Gould Street property and later the Clyde Street property were banked. 19His affidavit of 7 September 2011 states that prior to his redundancy he had decided that he would commence a Professional Recruitment Consultancy because the CES was then vacating that field. He claimed that he would have been able to capitalise on his experience with the CES where he had been the manager of its Professional Employment Service for about fourteen years. During this time he obtained industry knowledge, extensive professional development and a wide range of industry contacts. He prepared a business plan for a business to be operated under the name "EZYEmployment". That business plan included set up costs of $100,000 ($50,000 from his own funds and $50,000 by way of bank overdraft). He had hoped to earn an annual income of about $130,000 in the first year of operation based on a remuneration of $90,000, fringe benefits of $7,000 and business profit of $33,000. His affidavit of 7 September 2011 included the following (par 10): Because of aunt Meda's and Abe's wishes I did not pursue the private sector option but spent from 1997 to 2009 looking after aunt Meda's and Abe's affairs. 20Once both Meda and Abe were living in Phillip House the tasks were limited to visiting them, attending to some of their needs from time to time (including some shopping), attending to the books and dealing with the rentals from the Gould Street property and later the Clyde Street property, paying bills and liaising with the staff at Phillip House. I accept that there were some weeks in which Ezekiel had to spend more time looking after the affairs of Meda and Abe, for instance, when Abe moved out of the Clyde Street property into Phillip House. Furniture had to be moved and cleaning had to occur so that the property could be rented. This was obviously a significant task. 21Ezekiel was asked in cross-examination whether after July 1998 (when Meda was admitted to Phillip House) the amount of time that was needed to look after Meda's and Abe's affairs "dropped off". He said that after July 1998 "it increased" (tr 22). However when pressed about his claim that he was spending "more time" after July 1998 he said that he was "spending as much time". He justified this claim by suggesting that although Meda was no longer living at Clyde Street her affairs were still his responsibility (tr 23). He then claimed that he was working on her affairs "a lot of the time" albeit that he was not able to claim that it was "the majority of the time" (tr 26). 22Ezekiel also gave the following evidence in cross-examination (tr 28-29): Q. You would have visited your aunt or uncle whether or not there had been any conversations about looking after them, wouldn't you? A. Not with the frequently (sic) that was required to do it when I took on this task to look after them. Q. So you would have visited them regularly? A. Not regularly. 23In December 2001 Ezekiel made an application to the Guardianship Tribunal for appointment as the manager of Meda's financial affairs. The Guardianship Tribunal made orders appointing Ezekiel as Meda's financial manager on 8 January 2002. The reasons for that decision noted that Ezekiel had informed the Tribunal that "because of his financial background and his position as the eldest nephew he had been assisting" Meda and Abe "over the past few years with management of their finances". The Tribunal referred to the investment property owned by Meda (Gould Street) with an estimated value at that time of $1.4 million with net rental returns of approximately $48,000 per annum. It was also noted that the Clyde Street property was in Abe's name and the investment property was in Meda's name but their income and expenditure had always been pooled. 24The Tribunal recorded that Ezekiel had informed it that there was no plan to sell the properties but that there was a need for someone with legal authority to authorise payments in relation to the investment property and to ensure that funds were available to meet Meda and Abe's ongoing needs. It also noted that Ezekiel had pointed out to the Tribunal that Abe's Will, that named Ezekiel as joint executor, stated that it was Abe's "wish that the care of my wife remains with my nephew, Ezekiel". 25The Tribunal also noted a number of other matters of which Ezekiel advised it. They included the following: He advised that although Mrs Chamita has several nieces and nephews, because of his financial background and role as the eldest nephew, he has been informally assisting Mrs Chamita with her finances. On a more formal level he has been managing her husband's finances as his appointed attorney. Mr Sion told the Tribunal that he is a retired economist with accountancy training and his wife is tax accountant. He is currently managing his cousin's substantial estate. 26Ezekiel was cross-examined as to why it was that he did not advise the Tribunal of the agreement into which he and his co-plaintiffs had allegedly entered with Meda and Abe in 1997. That cross-examination included the following (tr 30-32): Q. Do you agree with the proposition that you did not tell the Guardianship Tribunal of any arrangement, to use a general word, that had been entered into with regard to the Will or the estates of Meda or Abe? A. I mentioned to the Guardianship Board that Abe had indicated to me that he - that Abe had written into his Will, rather, that I would look after Meda in the event that he was not able to or in the event that he passed away. ... Q. Do you agree that you did not point out to them any arrangement or agreement or conversations that you had with Abe or Meda whereby, if certain things happened, you and family members would receive their estates? A. The issue did not arise, so I did not see fit to point this out to them. Q. You did not disclose anything about that subject? A. It did not appear to be necessary to - for me to do so. ... Q. But you did point out to them what was in your uncle's will? A. That he wanted me to look after Aunt Meda in the event that he was unable to. Q. But you didn't go on and say "They had told me that if I looked after uncle Abe and Aunt Meda I and my siblings, and perhaps some cousins, would get everything"? A. I didn't see the relevance of it at the time. ... Q. You put yourself forward as appropriate to be the financial manager because you were, amongst other things, the eldest nephew; correct? A. That's right, yes. Q. That you were taking on some honourable family responsibility as the eldest nephew looking after the ageing and sick aunt; correct? A. Yes. Q. And you told them you had been managing her husband's affairs as the attorney? A. Yes. Q. But you didn't think it was relevant, or it didn't cross your mind to say, "Well, by the way, I should also tell you that they've promised me and my family that we will get their whole estate when they die"? A. There was nothing sinister in me overlooking that, sir. Q. You say you overlooked it? A. I said I didn't - I didn't mention it at the time, no. 27I accept that Ezekiel attended to the matters he describes in the List but I am not persuaded that they were so burdensome or time consuming that he was unable to pursue other activities. Indeed, as noted by the Guardianship Tribunal at the time Ezekiel made the application in 2001 to become Meda's financial manager, he was "managing his cousin's substantial estate". This matter was not the subject of any explanation or cross-examination but it is clear that Ezekiel was not impeded from that management task by the time he was devoting to Meda's and Abe's affairs. 28On 6 April 2010 Ezekiel submitted a Claim Form to the defendant in respect of Meda's estate. That Claim Form included the following certification: I hereby certify that the sum of $503,830.95 is justly and truly due to me from the abovenamed Estate, and that no portion of the said amount has been paid to me since the death of the said deceased, and that I hold no security whatever in respect of the said claim. 29That Claim Form included the following: 1998 to 2009 Estate administration - Meda Chamita - 499,200.00 1998 to 2009 inclusive - averaging 2 days per week: 52 x 2 x 8 x 12 = 9,984 HRS at 50 ph = May 2009 to March 2010 As per attached log sheet: 3,700.00 Time: 74 hours at 50 ph 930.95 Out of pocket expenses 503,830.95 30On the same day Ezekiel lodged a further Claim Form on behalf of Abe's estate particularised as follows: 6/3/10 Unpaid loan from Abraham Chamita to Meda Chamita, as per attached Loan Agreement Capital 7,000.00 Compound interest at 7.5% 1968 to 2009 (i.e. 41 years) 135,782.90 142,782.90 31These proceedings were commenced in July 2010. There is no quantum meruit claim. 32By Notices dated 19 July 2011 under s 93(1) of the Probate and Administration Act 1898 the defendant disputed both claims and called upon Ezekiel to take proceedings within 3 months to enforce and prosecute his claims. By Notices dated 21 November 2011 the defendant advised Ezekiel that if he did not serve any process on the defendant within a further 2 months it intended to distribute Meda's estate. Notwithstanding these Notices Meda's estate has not yet been distributed. Louisa's evidence 33Louisa's affidavit evidence of the conversation at the meeting with Meda and Abe in mid 1997 was as follows: Abe: I want you and Zeke to look after us because we are getting old and frail. Meda: Yes, we want you to do this. Louisa: What do you really want us to do? Meda: We want help. Ezekiel and Louisa: We can contact the various agencies like "Meals on Wheels". Louisa: Who are you leaving your estates to. Meda: To you. Abe: Yes, to you because you are helping us and looking after us. Meda: Yes to you, for your help. 34Louisa migrated to Australia from Singapore in 1964. She married in 1966 and her two sons were born in 1970 and 1972. Although she lived fairly close to Meda and Abe between the years 1966 to the late 1980s there were no visits to Clyde Street but there were random meetings at the local shopping centre. It is clear that Louisa had little to do with Meda and Abe prior to the visit she claimed occurred in mid 1997. In cross-examination Louisa gave the following evidence (tr 46): Q. You didn't ask them who is visiting them to look after them, or to give them care, or anything like that in the meeting? A. No. Q. And then you said: "Who are you leaving your estates to? I said this because I wanted to make sure that they had everything in order." Now, wasn't it of more importance, if you wanted to know whether everything was in order, to ask them whether they had a will? A. (witness nods) Q. You are agreeing with me? A. Yes. Q. But you didn't ask them that, you asked a question which perhaps is none of your business. You asked them who were they leaving their estates to? A. Well, I tried to make it as simple as I could so that they knew that we wanted to know that they have done the right thing. 35According to Louisa's affidavit evidence, all that was discussed at this meeting by way of the assistance sought by Meda and Abe was that Ezekiel suggested they could contact various agencies like "Meals on Wheels". It was not proposed that Louisa or Ezekiel were to do any cooking but rather they were to make contact with various agencies who would provide assistance to Meda and Abe. Louisa said that by 1997 Meda and Abe already had a cleaner attending the house at Clyde Street. She also gave affidavit evidence that she asked the question about the estates to make sure that Meda and Abe had "everything in order". However in her cross-examination she claimed that she asked the question to make sure that Meda and Abe knew that they (that is Ezekiel and Louisa) wanted to know that Meda and Abe had "done the right thing". Mrs Sion's Evidence 36Ezekiel's wife, Sophie Sion, gave affidavit evidence that she accompanied Ezekiel and Louisa on the visit to Clyde Street in 1997 when the Agreement was allegedly made. Mrs Sion gave evidence that the following conversation took place: Ezekiel: I understand from Louisa that you wanted to seem me. Meda: Yes. Ezekiel: Why do you want to see me and Louisa? Meda: We are getting old and we are having great difficulty caring for ourselves and looking after our affairs. I'm not very well and we need some help. Abe: Meda used to be able to look after the house very well before, but is now struggling to maintain the house. She is also having difficulty with cooking. Ezekiel: What is it you want us to do for you? Do you mean you want us to manage your affairs and organise home help for you? Meda: That's what I and Abe want from you. I am not well and not able to cook much now. I keep telling Abe that he should stand next to me and watch how I'm doing the cooking so he can learn how to cook. Abe: At my age you want me to start to learn how to cook? Meda: I keep telling him he should learn to cook. Ezekiel: Do you have any legal documents such as Powers of Attorney and Wills. Meda and Abe: No. Ezekiel: I'm concerned about the need for these documents, you must have such documents and they should be put in place. Do you require any help in arranging for these documents to be drawn up? Meda: Yes, we do. Abe: Yes, this is what we want. Ezekiel: What are your intentions. Louisa: To whom do you wish to leave your estates? Meda: To you, for helping us and looking after us. Abe: Yes, to you, can you help us. Louisa: When you say "to you" I assume you mean all your nieces and nephews equally. Meda and Abe: Yes. Meda: We do not have children of our own, our nieces and nephews are the only family we have. I'm especially fond of the grandchildren of my late sister, Sophie. 37Mrs Sion claimed that she suggested to Meda that she should consult a solicitor to prepare her Will. She claimed that Meda said that she would do that and as they left the house both Meda and Abe said to Ezekiel that they wanted him to assist them in arranging a visit to a solicitor to draw up their Powers of Attorney and Wills. This evidence is at odds with that of Ezekiel who gave affidavit evidence that it was not until late 1997 that he had any discussion with Meda and Abe about Powers of Attorney and Wills. He also gave the following evidence in cross-examination (tr 41): Q. There is no dispute that in one of your conversations you did raise the question of wills and powers of attorney, but I'm asking you specifically about the first conversation where it was spoken that you look after us and we will look after you. Wills and powers of attorney and outside assistance for that purpose were not raised or discussed, correct? A. Correct. 38Mrs Sion claimed that she attended Clyde Street with Ezekiel "on visits" and that she knew that shortly after the initial visit in 1997 Meda "deteriorated" after she broke her arm. Mrs Sion claimed that after Meda broke her arm, Ezekiel spent more time with Meda and Abe looking after them and managing their affairs. Other Matters Hilda's evidence 39It appears to me that of all the siblings Hilda was probably the closest to Meda. She had lived with Meda and Abe when she arrived in Sydney in mid 1961. Her affidavit evidence was that she developed a "mother and daughter" relationship with Meda. However that relationship soured after she rejected Meda's request that she allow Meda and Abe to adopt her. Hilda claimed that in 1962 Meda suggested to her that if she agreed to the adoption Meda and Abe would leave their estates to her. 40Hilda gave evidence that after she moved out of the Clyde Street property in 1962 and she had difficulty visiting Meda and Abe because of Meda's "coldness" towards her. However the friendship was restored in 1967 when Meda telephoned her and asked her to visit her at Clyde Street. From that time they visited each other and had outings together. Hilda located cleaners for Meda and Abe and responded to their "late phone calls for assistance". She also accompanied Abe to hospital for "suspected strokes" in the 1980s. 41From the 1980s to the mid 1990s Hilda observed that Meda's health was not good and that she needed her assistance. Her affidavit evidence was that her care and attention of Meda and Abe was greatly appreciated by both of them and Meda responded by giving her cakes that she often baked as a token of her gratitude. Hilda claimed that the assistance that she gave included taking Meda and Abe shopping, to doctors and dentists appointments, to the chemist and driving them to Hilda's mother's house in Bondi Beach or to other social events. 42She claimed that her relationship with Meda and Abe carried on until such time in around mid 1997 when they asked her to get them a live-in carer to do the cleaning and the housework. At that time she was unable to do so because she could not find anyone who was suitable. A little later in the year, Abe and Meda informed Hilda that they had approached Ezekiel for assistance to help them with their affairs. Hilda's evidence was that in 1997 Ezekiel informed her that Meda and Abe "have said that they are going to leave their estate to us but we have to continue to help them. I am looking after their affairs but I will need yours and the family's help". Hilda claimed that she responded by saying "of course". In 1997 Hilda's hours of work were flexible and she was able to help Meda and Abe when necessary and would see them practically every day as they lived not far from her. 43In cross-examination Hilda said that because she lived closer to Meda than Ezekiel did she was able to attend to any urgent needs if she was required to go "straight away" to Phillip House (tr 58). It seems to me that Hilda was motivated to assist Meda and Abe by a genuine feeling of closeness to them. Her following evidence exemplifies that position (tr 59): Q. If you wanted to you could have just stopped helping your aunt and uncle, if you made that decision, couldn't you? A. Yeah, but I thought I, as a relative I should be there for her, for them. Katie Sion Grand 44Katie Sion Grand, another of Meda's nieces, gave evidence that prior to Meda's admission to Phillip House she would regularly visit her and Abe in Clyde Street. Mrs Grand's husband, Sion Grand, would drive her to these visits from their home in Killara. Her affidavit evidence was that she and her husband were made very welcome on their visits and that Meda and Abe were always reluctant to see them leave. She claimed that during the course of these visits she learned from Abe that he had relatives in the United States of America with whom he had lost contact. Although Mrs Grand suggested that Abe and Meda should visit the relatives in the United States she said that Abe never showed any interest in doing so. 45Mrs Grand recalled in her affidavit that during one of her visits to Clyde Street in "mid 1997" Abe showed her a brown envelope in which there was a notice. Abe said that the notice had been given to him by a friend and that someone in the USA was trying to trace him. The notice that appeared to be a cutting from a newspaper that included the words "A relative from Florida in the USA has asked if anyone could help her to trace the whereabouts of her mother's cousin Abraham Chamita". Mrs Grand copied the name (Dina Hill) and the telephone number from the notice as it was her intention to make contact should she ever have the opportunity to visit Florida. However this opportunity never arose. Mrs Grand claimed that Abe informed her that he was not really interested in re-establishing contact with his relatives in the USA. 46Mrs Grand claimed that Meda was very coherent and actively participated in whatever they talked about when she visited her. She claimed that the telephone conversations she had with Meda were "normal". However she observed that after admission to Phillip House Meda's health gradually declined until eventually she was not able to recognise Mrs Grand or converse with her. 47In cross-examination Mrs Grand gave evidence that she would meet Meda at her parents' home on the weekend and did not feel the need to go over to Meda's house (tr 65). She claimed that during the 1980s and 1990s she would visit Meda at least once a month (tr 65). However when pressed in relation to this claim Mrs Grand said that she was including the times that she met Meda at her parent's house. Mrs Grand also said that at this time she was really quite busy raising her children and that she would visit Meda and Abe "often" in the 1990s, about once a month or twice a month (tr 66). Mrs Grand finally said it would be "once a month". She claimed that she was not "absolutely sure" because she spoke to Meda "a lot" on the telephone and conceded that most of her contact was by telephone (tr 66). 48Mrs Grand claimed that when she saw Meda in 1997 she was "lucid and coherent" and able to understand what she was saying. She claimed only to notice a change in Meda about two years after she went into Phillip House (tr 67). She claimed that this was the first time that she noticed that Meda was having problems with communication. Sion Grand's Evidence 49Mrs Grand's husband, Sion Grand, gave affidavit evidence of visiting Abe and Meda at Clyde Street. He recalled one particular visit when Abe informed him that someone in the USA was looking for him. He recounted the conversation in which Abe informed him that he was not interested in having contact with the people in the USA. 50Mr Sion said that the visits to Abe and Meda with his wife between the 1980s and the middle part of the 1990s would have been probably every second or third month. During that period he conceded that the visits were less frequent because the children were less than teenagers at that time. After the mid 1990s the visits were approximately every month, sometimes three weeks, sometimes five weeks (tr 71). 51Mr Sion also said that he and his wife visited Meda in Phillip House at regular intervals. He claimed that Meda was certainly quite able to recognise him and his wife and discuss family matters. The topics for discussion were largely family, food, the local real estate market and prices of property (tr 72). Naftali Aptekarz 52Naftali Aptekarz lives in Houston, Texas. He is the widower of Zsyfra whom he married on 20 December 1950 and with whom he had four children. Zsyfra died on 16 September 1995. 53Mr Aptekarz gave affidavit evidence that he met Abe in Krasnick, Poland towards the end of the Second World War. Mr Aptekarz and Abe were living in shared accommodation that consisted of one large room that had a dividing wall that did not reach the ceiling. Mr Aptekarz was living in one side of the room with his mother and Abe lived on the other side with his aunty, Slawa Chamita, and her two children Szyfra (then aged twelve years) and Chaimek (then aged fourteen years). Slawa Chamita was the sister in law of Abe's father, Laibisz Chamita. 54Mr Aptekarz' affidavit evidence was that Abe's parents had been killed by the Nazis and that in November 1942 Slawa found Abe begging for food in the streets and living alone in a forest. At that time Slawa and her children were living in a tiny underground bunker in an active barn that was owned by a Polish family named Robak. Slawa and her children were living there to avoid capture and removal to a concentration camp. On finding Abe, Slawa returned to the barn with Abe and persuaded the Robaks to allow Abe to live with her and her children in the bunker. 55Mr Aptekarz gave evidence that during the two months in 1944 that he spent with Abe in Krasnick he said to him on many occasions "I owe my life to Slawa...I owe her everything...I will never forget that. Slawa gave the Robaks the last of her jewellery to help feed me and keep me safe". It was during those two months that Abe and Mr Aptekarz started buying home made vodka from Polish farmers and selling it to the Russian soldiers. In exchange the Russian soldiers would give Abe and Mr Aptekarz military clothing, shirts, pants and overcoats. He and Abe would then arrange for a tailor to alter the military clothing into normal looking clothing so it could be re-used. In that way they had something of value to exchange with the local farmers for the vodka. 56After Mr Aptekarz left Krasnick in 1944 he did not meet with Abe again. However he was subsequently informed by Abe, Zsyfra and Slawa that they kept in contact with each other by letter. That continued after Zsyfra and Mr Aptekarz left Poland and moved to Israel in July 1950 where they married in December that year. Mr Aptekarz claimed that the correspondence with Abe continued throughout the time that he and Zsyfra lived in Israel until they moved to the USA in 1958. 57Mr Aptekarz gave affidavit evidence that, some time during 1959 or 1960, Zsyfra and he received a letter at home in the USA from Abe in which he informed them that he was then living in Sydney, Australia. Mr Aptekarz claimed that thereafter Abe would ring him and Zsyfra once or twice a year until Abe's last call to him in 1997. Mr Aptekarz gave evidence that both he and Zsyfra would talk to Abe when he made his regular phone calls. He claimed that, without fail, Abe would say that he owed his life to Slawa and that he would never forget his obligation to her. During the last call Abe enquired about Mr Aptekarz's health and that of his children and then said "I got a phone call from someone in Florida called Dina Hill. Do you know who that is?" Mr Aptekarz advised Abe that Dina was his daughter and was very interested in genealogy. 58Mr Aptekarz gave affidavit evidence that during the last telephone call he had with Abe in 1997 the following conversation took place: Abe: I never made it to thank Slawa and Zsyfra for what was done for me. I can't come now to thank you on their behalf due to my wife's mental illness. Mr Aptekarz: What do you mean by her mental illness - what does that mean? Abe: She has many problems. ... I want you to know that I have not forgotten what your wife's family did for me by saving my life. Without them I wouldn't even be here talking to you. Although I can't thank them personally I will live up to my obligation to repay them for what they did to get me into the bunker. My wife Meda and I have divided our real estate. My part of the real estate is a little less valuable. My share will go to my wife's family and my wife's share will be for your kids. 59In cross-examination Mr Apterkarz maintained that this conversation with Abe occurred in 1997 although he conceded that he was not sure it was not 1998 (tr 81-82). He put that date on the conversation having regard to communication with his daughter, Dina Hill, at about this time. He said that after his conversation with Abe in late 1997, Abe telephoned Dina. There was no real challenge to Mr Apterkarz version of the events of 1942 and 1944. Indeed there is documentary evidence to support the claims that he made in respect of Slawa protecting Abe with the assistance of the Polish family. 60Although I am satisfied that it does not have an impact on the outcome of the proceedings, there is some difficulty in accepting the accuracy of Mr Apterkarz' recollection of part of his conversation with Abe in 1997. I should say that I have no difficulty in accepting that Abe probably said that he wanted to ensure that he thanked Szyfra's family for looking after him and effectively saving his life. However in 1997 each of Abe and Meda still had their 1966 Wills in force. At that time Abe had not changed his Will so that it provided for Meda's family. It may be that by this time Abe had decided that this was to occur but it is curious that he did not make his new Will until 2001 reflecting that position. Francis Mary Kenney 61Francis Mary Kenney, a genealogist, gave affidavit evidence that she has had a long interest in genealogy and regularly reviews the Genealogy Australia and New Zealand website (the Website). Her evidence was that in mid 1997 she contacted Abe in regard to a family tree investigation, having read an enquiry from America about his whereabouts on the Website. Mrs Kenney informed Abe that she had heard from someone in America who thought she may have been a relative of his. She claimed that Abe was happy when she gave him that news. She also advised him that she would pass on his details to the person in America. Mrs Kenney claimed that Abe told her that he was married and that "he had been unable to visit his American relatives because of the problems with his wife's health". The Neighbours 62Carol Leslie Silver and her husband purchased the property next door to Meda and Abe in 1987 and moved into the property in 1988. Shortly after moving in they met Meda and Abe. Mrs Silva gave evidence that when she first met Meda she thought that she was "not all there" and it was difficult to have a conversation with her. In the year that Mrs Silver and her husband moved into the property, she had her second child. During the following 12 months, Meda and Abe would come into Mrs Silver's house to keep an eye on the baby whilst Mrs Silver went to collect her elder child from school. By 1996 when Mrs Silver had her third child she "found it very difficult to make sense of anything Meda had to say". Accordingly she did not ask Meda and Abe to mind the children any more. In cross-examination Mrs Silver gave evidence of Meda "constantly shouting" and calling Abe "often" (tr 111-112). 63Mrs Silver gave evidence that Abe informed her that he had relatives in the USA but that he could not visit them because it was "too late now" and that he "couldn't do it". In cross-examination Mrs Silver gave evidence that Abe had informed her that he wanted to travel to the USA but that Meda was never well enough to go (tr 113-114). Mrs Silver's evidence in cross-examination also included reference to a conversation in which Abe informed her that he was going to give his money to charity (tr 115). 64June Ellen Williams and her husband purchased the property on the other side of Meda and Abe's house in late 1990. Mrs Williams had many conversations with Abe over the years who she said always liked "to have a chat". He would often stand at the front gate speaking to people who had stopped as they were walking past. However Mrs William said it was difficult to have any in-depth conversation with Meda who "seemed" to her "to become more vague as time went along". Her only conversations were about simple things such as the weather and other small talk. Mrs Williams did not see much of Meda in the two years prior to her going into Phillip House. However by that time she appeared to Mrs Williams to be "even more vague". Over the years Mrs Williams would regularly hear Meda "shouting out" and on one occasion she and her husband were woken by Meda's "wailing" to the point that her husband went next door to check that everything was alright. Mrs Williams's house was a semi-detached cottage with wooden floors. It was obviously very easy to hear what was happening next door or as Mrs Williams put it "you could hear the light switch being turned on in the bedroom" (tr 121). Expert Opinion 65The plaintiffs relied upon the expert opinion of Associate Professor Tuly Rosenfeld, a specialist physician and geriatrician. The defendant relied upon the expert opinion of Associate Professor Carmelle Peisah, a psychiatrist with a special interest in old age and medico-legal issues related to old age. Professor Rosenfeld provided two reports, dated 20 September 2011 and 22 April 2012. Professor Peisah provided two reports dated 9 February 2012 and 10 July 2012. 66Professor Rosenfeld conceded that his ability to express an opinion about Meda's capacity in 1997 was "limited" by reason of the absence of any contemporaneous medical opinion regarding her medical condition at the time. In those circumstances Professor Rosenfeld looked at the medical reports and documents that were available to him for late 1997 and 1998 and extrapolated back to 1997 to conclude that Meda's "physical and cognitive functioning would have been significantly better in 1997 than in mid 1998". 67One document that became available, apparently after Professor Rosenfeld produced his reports, is an application for Meda to be admitted to the War Memorial Hospital respite unit for a period of one month respite care in February 1997. Abe signed the application on Meda's behalf and gave the reason for her inability to sign the form as "Dementia". That part of the application was dated 18 February 1997. The application included a certification by Meda's general practitioner, Dr John Kearney, dated 25 February 1997 in which the "medical diagnoses" were recorded as: "(1) senile dementia; (2) depression". The duration of the senile dementia was recorded as "years" and the duration of the depression was recorded as "3 years". The medication for the depression was recorded as Tolvon. 68Professor Rosenfeld had expressed the opinion in his reports that Meda was likely to have understood the implications of the alleged Agreement particularly as the nature of the Agreement was "not complex". However having reviewed the diagnoses given by Dr Kearney in the February 1997 Certificate, Professor Rosenfeld was asked whether his opinion would need to be adjusted. In answering "Well, yes and no" (tr 102), Professor Rosenfeld made the point that Dr Kearney did not indicate the extent of the dementia. However his evidence was that if Meda was on Tolvon, "her functioning would have been impaired, and she would be less able than if she wasn't on it to make those considerations" (tr 103). Professor Rosenfeld expressed the very firm view that any problems of cognition and memory that Meda was suffering in February 1997, would have been exacerbated by the administration of Tolvon. 69Professor Peisah addressed the 1997 application in her second report. She referred to the "tentative" conclusions that she had reached in her 9 February 2012 report in relation to Meda's mental state in 1997 due to the paucity of contemporaneous medical documentation. However having reviewed Dr Kearney's 1997 certificate, Professor Peisah expressed the opinion that it was "highly probable" that Meda suffered from a dementia of moderate severity as well as depression in mid 1997. 70Professor Peisah gave evidence that ninety percent of people with a "dementing illness" suffer from what is referred to as "behavioural and psychological symptoms of dementia" that include "calling out" and "being demanding, asking for assistance over and over again" (tr 127). Contract claim 71The plaintiffs contend that the agreement was between family members and although it was expressed in simplistic terms, the subject matter was one of seriousness to both Meda and Abe and the plaintiffs and the other nieces and nephews. The plaintiffs submitted that a binding legal contract may be entered into notwithstanding informality and close familial relationships. In this regard the plaintiffs relied upon a number of cases in which promises have been made between family members and/or people in social or neighbourly relationships: McKeand v Thomas [2006] NSWSC 1028; Darmanin v Cowan [2010] NSWSC 1118; Ashton v Pratt (No 2) [2012] NSWSC 3. Those cases give detailed consideration to many other cases including where plaintiffs have agreed to look after elderly people for the rest of their lives in return for some vague promise of future reward: Bovaird v Frost [2009] NSWSC 337 and the cases cited at [49]. There is also in those cases analysis of the presumption of fact that family, social and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention (Darmanin v Cowan [2010] NSWSC 1118 at [205]-[210]) but intend to "rely solely on family ties of mutual trust and affection": Jones v Padavatton [1969] 2 All ER 616 per Salmon LJ at 621. The presumption was explained in Balfour v Balfour [1919] 2 KB 571 at 578-580 by Atkin LJ, there dealing with the arrangements between husband and wife. However that is not to say that there may be circumstances in which arrangements between "close relations" are intended to have the force of law: Jones v Padavatton per Salmon LJ at 621. 72In Stinchcombe v Thomas [1957] VR 509 the plaintiff was persuaded by the deceased to leave her employment as a housekeeper where she had prospects for increases in income on the promise that if she would come and look after things at his home and stay with him as long as he lived, he would "see to it that she would be well rewarded and would never regret it". After referring to the language employed by Starke J and Evatt and McTiernan JJ in Horton v Jones (1935) 53 CLR 475 at 488 and 492 respectively, Monahan J concluded that the relationship between the plaintiff and the deceased was one in which she was entitled to have an expectation but the language used was not of obligation or contract (at 512). 73In Wakeling v Ripley (1951) 51 SR (NSW) 183 the plaintiffs, the defendant's sister and her husband, relocated from England to Australia to look after the defendant in his home in consideration of the promise recorded in a letter that if they came to Australia to look after him he would "keep you for all time and I trust with no worry - for the future" (at 185). In a later communication the defendant informed the plaintiffs that he would alter his Will so as to leave everything to the plaintiffs so that they may "if necessary" leave everything to their daughter and her husband. The defendant went so far as to provide a copy of a Will to the plaintiffs in which he devised and bequeathed the estate to them in equal shares (at 186). 74The Court, (Street CJ, Maxwell and Dwyer JJ concurring), concluded that the arrangement entered into "was something very much more than a mere family or social agreement" (at 186). The Court found that the plaintiffs were insistent on having the matter put on a "clear footing and in the form of a legal bargain" before they left England to relocate to Australia (at 187). The Court also concluded that the parties intended to enter into a binding and enforceable contract and rejected the argument that the agreement was void for uncertainty because certainty was to be found in the documents and letters written between the parties (at 187). 75In Palmer v Bank of New South Wales [1973] 2 NSWLR 244 the defendant had promised the plaintiffs that if they took up residence in his house and cared for him for the remainder of his life then his property would be left to the plaintiffs. The plaintiffs took up residence in the property where they cared for the deceased until his death. Whilst living in the home they entered into a written agreement that stated that they had agreed to "look after and keep" the deceased and that they were to pay all normal expenses on the property but not to pay rent. The deceased agreed that "in return for such services" his property would pass to the plaintiffs on his death with no encumbrance. 76The trial judge had decided that the initial arrangement that he designated as a "consensus" was without legal effect. That conclusion was reached on the basis that the arrangement to live at the deceased's house "and to look after him until his death" was too uncertain to be treated as a promise in law (at 251) on appeal. Hutley JA said at 253: There may be some circumstances in which a court could hold that an undertaking by some body to look after another is too uncertain to be enforceable, but in determining this the court is entitled to consider the circumstances in which the words were used. Here they were addressed to persons who knew the testator well, knew all about the circumstances under which he lived and that he was to be looked after in a particular place, namely Sawtell, in his home. ... The term "to look after" in these circumstances is no more indefinite than a promise to "care for" or "to nurse". It is a contract to render services of a sufficiently definite character as to constitute a legal obligation. 77In any event it is not controversial in the present case that a Court can find that parties intended to enter into a legally binding contract notwithstanding close relationships of a social or familial nature and informality. It will all depend upon the assessment of all the circumstances surrounding the making of the alleged agreement. 78The defendant contends that the conversations relied upon by the plaintiffs do not reflect an intention by Meda to enter into legal relationships with the plaintiffs. According to Ezekiel's evidence, Abe said that "we" (referring no doubt to himself and Meda) "want your assistance in managing our affairs" and that Meda said "yes, please, we want you to do this". The vagueness of that request prompted Ezekiel to seek clarification by asking what it was that Abe and Meda wanted by way of assistance. The question he asked was whether Abe and Meda wanted "us to look after your affairs or organise help". The response that Ezekiel claimed that Meda gave was "that's what we want you to do". It is not clear from that response whether Meda wanted the plaintiffs to look after the affairs or to organise help or both. 79Louisa claimed that Abe asked her and Ezekiel "to look after us" because they were becoming old and frail and that Meda said "yes, we want you to do this". Louisa claimed that it was she, rather than Ezekiel, who sought clarification by saying "what do you really want us to do". The response from Meda was "we want help". Louisa claimed that she and Ezekiel responded by saying that they could contact various agencies like "Meals on Wheels". 80The facts of this case are distinguishable from the facts in Palmer v Bank of New South Wales in which the plaintiffs took up residence in the deceased's home to "care" for him. It was in that very different circumstance that Hutley JA was able to conclude that the contract was entered into to render services of a sufficiently definite character so as to constitute a legal obligation. In this case there was no clarity or certainty as to what was to occur. There was no discussion as to which particular plaintiff would provide any particular services or assistance. There was no identification of the nature of the assistance sought other than a tacit acceptance that the plaintiffs might make contact with some support agencies such as Meals on Wheels. There was no discussion of the manner in which the assistance could be provided and/or the length of time during which such assistance was to be provided. There was no discussion or contemplation of what was to happen should either Abe or Meda become ill and/or need to enter an aged care facility. Indeed, when Meda broke her arm in late 1997, Ezekiel was not aware of her predicament for some weeks after the event when he observed Meda at Clyde Street with her arm in plaster and in a sling (tr 15). Louisa claimed that Abe telephoned her to advise her that Meda had broken her arm and was in hospital. Louisa also claimed that she visited Meda in hospital. However it appears that she did not advise Ezekiel of Meda's problem at that time having regard to his evidence that he first became aware of the problem when Meda had returned home. 81Ezekiel's evidence in relation to Louisa's conversation about the "estates" was that Louisa asked Abe and Meda who they were going to leave their "estates to in your Wills", whereas Louisa claims that she asked "who are you leaving your estates to" with no mention of the "Wills". Mrs Sion claimed that it was Ezekiel who broached the subject by asking, "what are your intentions" and that Louisa then asked "to whom do you wish to leave your estates". Mrs Sion claimed that Meda said "we need some help" and that, when Ezekiel sought to clarify what it was that Abe and Meda wanted them to do by asking "do you mean you want us to manage your affairs and organise home help for you", Meda responded by saying that that is what she and Abe wanted from him. It was only Mrs Sion who claimed that Louise clarified the matter relating to their intentions by saying to Meda and Abe "when you say 'to you' I assume you mean all your nieces and nephews equally". Neither Ezekiel nor Louisa suggested at any stage in their evidence that Louisa said those words. However Ezekiel and Louisa gave some evidence of what that understood from the words. 82The Claim Forms Ezekiel lodged with the Guardianship Tribunal may be taken into account for the purpose of assessing whether there was an agreement entered into in 1997: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153. It is significant that the claim for the $503,830 is made for the period from "1998" and not from "1997" particularly having regard to the plaintiffs claims that the agreement was struck "in or about mid 1997". An inference to be drawn from this Claim Form is that at least at the time that Ezekiel lodged it on 6 April 2010 his memory was that he had assisted Meda for 2 days per week from 1998 and not from 1997. 83If Ezekiel believed that by reason of a contract entered into in 1997 with Meda, he and his siblings were entitled to the whole of Meda's estate in equal shares, the fact that he did not disclose this to the Guardianship Tribunal at any time (particularly at the time he applied to become Meda's financial manager in 2001 and at the time he made a claim on Meda's estate for half a million dollars) is to be taken into account in deciding whether there really was an intention in mid 1997 to enter into a legally binding contract of the nature claimed. This claim on Meda's estate is also at odds with Ezekiel's affidavit evidence that he did not seek payment from Meda and Abe because he understood that they would give him (and his siblings) their estates. However, by the time that he made the claim, he was aware of the contents of Meda's Will and it might be suggested (although it was not) that he made the claim because Meda had not honoured her promise. Alternatively it might be suggested (although it was not) that he did not claim for any time prior to his redundancy from the CES in 1998, however that suggestion would not have force because he made a claim from the beginning of 1998 rather than limiting it to after his redundancy in April 1998. 84Ezekiel was aware of the terms of Abe's Will under which he was a beneficiary and, I am satisfied, sought to have the $142,782.90 in the second claim repaid from Meda's estate so that it could be distributed to himself and his siblings. There is no evidence that Meda did not repay the loan by 1975 as provided for in the Loan Agreement. Nor is there any evidence of the relevant interest rates that were referred to in the Loan Agreement. It is not clear on what basis Ezekiel decided to charge Meda's estate at 7.5% compound interest for the 41 years from the date of the Loan Agreement. 85The only person who gave evidence of the steps that were to be taken by Abe and Meda immediately after the 1997 conversation was Mrs Sion. Her evidence was that both Abe and Meda said they wished to be taken to a solicitor to finalise Powers of Attorney in favour of Ezekiel and to make their Wills. I do not accept that this conversation took place in mid 1997. Ezekiel's evidence in cross-examination was to the contrary and in his affidavit of 17 June 2010 he said it was not until late 1997 that he requested that Meda and Abe prepare Powers of Attorney and Wills. His evidence was that they said that they would do so. He made no reference to any suggestion that he might assist them by taking them to a solicitor for this purpose. His affidavit went on to record that it was not until late 1998 that the "question" of Abe's Power of Attorney was "attended to". That Power of Attorney was executed on 7 December 1998. It was not until 2001 that Abe executed his Will. 86The defendant emphasised the fact that at no stage were any of the plaintiffs identified on any of the hospital records or Aged Care Assessment Teams (ACAT) forms as carers for either Meda or Abe. Indeed the hospital notes for the War Memorial Hospital for 23 April 1998 refer to Abe as Meda's "primary carer" with no mention of any of the plaintiffs or the fact that the plaintiffs had agreed to care for Meda. Indeed it was recorded that Abe was considering a Nursing Home placement for Meda that would be a "secure place". There is no suggestion that at any stage Abe lacked a full understanding of the matters with which he was dealing. In those circumstances it is important to note that whilst discussing Meda's condition with the hospital staff, Abe apparently made no mention (or any mention thought by the hospital staff important enough to note) of any agreement that he had reached for the plaintiffs to care for himself and Meda. There was no suggestion in any of the notes that any of the plaintiffs should be consulted or contacted at any stage. Another matter in this regard is Abe's 2001 Will in which he referred only to Ezekiel caring for Meda with no mention of the other plaintiffs or any of the other nieces or nephews caring for Meda. 87There is real doubt in my mind about the accuracy of the conversation as claimed and the date of the conversation. The claims made by Ezekiel on Meda's estate in the Claim Forms lodged with the defendant on 6 April 2010 are in my view significant matters militating against the existence of a legally binding contract having been entered into in mid 1997. In any event, the very vague language used by the parties in the context of a family setting in which there had been little or rare face to face contact between the parties at the meeting, coupled with the serious difficulty in identifying with any certainty the real substance of the alleged agreement leads me to the conclusion that, irrespective of Meda's dementia, there was no intention by Meda to enter into a legally binding contract. 88That conclusion means that it is not necessary to consider Meda's dementia and capacity to form an intention to enter into a legally binding contract in mid 1997 with the plaintiffs . However I will address that matter for completeness. 89I am satisfied that the contents of Dr Kearney's certificate of 25 February 1997 is a significant matter to be taken into account in reviewing the expert opinions in this case. It is not medical opinion alone that is to be considered when assessing a person's capacity to understand the nature of the particular transaction: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]; Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [196]. Although Professor Rosenfeld gave a somewhat equivocal response as to whether his previous opinion needed to be adjusted in the light of this new evidence, it seems to me that it must be adjusted. The evidence of the neighbours is also important. Both Mrs Williams and Mrs Silver gave evidence of Meda shouting out for Abe repeatedly and wailing in the night. This evidence is consistent with what Professor Peisah described as behavioural or psychological symptoms suffered by patients with dementia. The evidence also fits within the timeframe of the diagnosis of senile dementia that Dr Kearney certified that Meda had been suffering for "years". 90The plaintiffs relied upon Gibbons v Wright (1954) 91 CLR 423 to submit that if it is established that Meda did not have the capacity to understand the transaction the subject of the 1997 conversation, such agreement is not void but voidable. In this regard the plaintiffs relied upon what was said by Dixon CJ, Kitto and Taylor JJ at 444 that the settled doctrine of English law was that "the contract of a lunatic was not void but was voidable only" (at 444). Their Honours used the word "lunatic" to refer to a person "incapable of understanding the nature of the acts or transactions which the particular power of attorney purports to authorize" (at 445). Their Honours said at 437: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. 91The defendants also referred to the presumption of sanity (Attorney-General v Parnther (1792) 3 Bro CC 441; (1792) 29 ER 632) and to the onus upon the defendant to establish Meda's incapacity to understand the nature of the transaction into which the plaintiffs claim she entered. The "familiar test" referred to in Banks v Goodfellow (1870) LR 5 QB 549 of testamentary capacity has been said to be "dependent on being able to carry out the particular tasks involved in understanding and evaluating the matters that need to be taken into account in deciding what one's testamentary dispositions will be: Guthrie v Spence [2009] NSWCA 369 at [174]. 92In this case, the evidence of Meda's dementia is to be viewed not for the purpose of deciding whether the alleged agreement was void or voidable but rather whether in all the circumstances Meda had the requisite intention of entering into a legally binding relationship with the plaintiffs: Foster v Mackinnon (1869) LR 4 CP 704 at 711. 93There are a number of sources from which to draw the conclusion that Meda was suffering moderately severe dementia in 1997 (and prior to 1997) including, the evidence of the neighbour's observations of Meda over the years, the evidence of Mrs Kenney to whom Abe disclosed Meda had health problems, the Certificate of Dr Kearney and the medical records of the hospitals and the ACAT forms and indeed the evidence of both experts. It is important to recognise the difference between the presence of a dementing illness and a capacity to understand a particular task. It is necessary to focus on the task to assess whether the person would have had the capacity to understand the transaction. 94On the one hand, the plaintiffs, Mrs Sion and Mr and Mrs Grand put forward a different picture of Meda to that put forward by, in particular, the neighbours and the certification by Dr Kearney. The difficulty for each of the witnesses was the fact that they were being asked to recall Meda's presentation 13 or 14 years prior to the time they swore their affidavits. There were no records to assist any of the witnesses to give their evidence of the observations they made of Meda at any particular time. In those circumstances I have found the contemporaneous records are the most reliable evidence to corroborate any claims made by the various witnesses. I am satisfied that notwithstanding Meda's capacity to carry out simple conversations about the weather and the like, she was suffering a moderately severe dementia in 1997 and would not have had the capacity to understand a transaction that involved: (a) a consideration of the existence of the 1966 Will and the circumstance that if Abe predeceased her, of having given the whole of her estate to Abe's cousins in the USA; (b) the revocation of that Will and thus a departure from what Abe had seen as an obligation to his cousin's family for saving his life; and (c) giving the whole of her estate to her nieces and nephews (and possibly to a wider group than the plaintiffs). I am satisfied that Meda did not have the capacity to form an intention to enter a legally binding contract with the plaintiffs as alleged. 95The plaintiffs' claims in contract fail. Estoppel claim 96The Statement of Claim includes the allegation that in 1997 Meda made two representations: (1) that she did not have a Will; and (2) that if the plaintiffs cared for and looked after her and Abe and their affairs, she would leave her estate to the plaintiffs (par 20). It is alleged that the plaintiffs relied upon the representations to their detriment, the particulars of which are pleaded as: (1) Ezekiel did not pursue other employment after he ceased employment in the Commonwealth Public Service; and (2) the plaintiffs devoted a "more than reasonable amount of time" taking care of Meda and Abe and their affairs, "thereby prejudicing the plaintiffs' personal and professional life" (par 21). The plaintiffs claim that Meda knew that they were so acting and relying upon the said representations (par 22). 97The plaintiffs relied upon the summary of the principles of estoppel in Brennan J's judgment in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 428. Reliance was also placed on what Priestley JA (with whom Hope and McHugh JJA agreed) in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 said at 472 as follows: For equitable estoppel to operate...there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable. 98The plaintiffs also emphasised that "encouragement" does not need to be particularly sophisticated or complex. In this regard reliance was placed on Lieschke v Lieschke [2003] NSWSC 743 in which the words uttered were "that's yours now. You pay the rates". Similarly in Sullivan v Sullivan & Ors [2006] NSWCA 312 in which the deceased had written a Christmas card to his sister stating that he would provide a home "to live in as long as you like" which was to be her "home for life". 99In Thorner v Major [2008] EWCA Civ 732 Lloyd LJ said at [35]: Where the question concerns the landowner's intentions as regards the disposition of his property upon his death, a more subtle distinction needs to be drawn between, on the one hand, a statement as to the landowner's current testamentary intentions and, on the other, a promise or assurance by him to the other party as to what he will do by his will. The latter could be intended to be relied on by the other party, and to influence his or her course or action; the former might be no more than a matter of information, not intended to be relied on, and which the other party could not reasonably be expected to take as so intended. 100The plaintiffs in the present proceedings contend for the "latter" example in the "subtle distinction" referred to by Lloyd LJ in Thorner v Major in that they contend that: (a) Meda made a promise or gave an assurance that she would leave her estate to the plaintiffs if they looked after her and Abe and looked after their affairs; (b) Meda intended the plaintiffs to rely on that promise or assurance; and (c) Meda intended the promise and assurance to influence their course of action. The representations 101The first representation upon which the plaintiffs rely is that Meda represented that she did not have a Will. Louisa claimed that the conversation that occurred in mid 1997 (relied upon in the contract claim) was that she asked both Abe and Meda "Who are you leaving your estates to?" to which she claimed Meda responded, "to you". Louisa claimed that Abe then said "Yes, to you because you are helping us and looking after us" and Meda then said "Yes to you, for your help". 102As I have said earlier, Louisa's affidavit evidence was that she asked the question "Who are you leaving your estates to?" because "she wanted to make sure they had everything in order". If this evidence is accepted, it appears that the answer conveyed is that Meda did have a Will, rather than the alleged representation that she did not. As I also said earlier, Louisa said in cross-examination that she asked the question to let Meda and Abe know "that we wanted to know that they have done the right thing". That answer also suggests that Meda had a will rather than did not have a Will. 103Mrs Sion's evidence of the conversation in mid 1997 recounts Meda's request to be taken to a solicitor so that she could make a Will. This was not supported by Louisa's evidence and was contrary to Ezekiel's evidence and I do not accept that it occurred. If Meda had asked to be taken to a solicitor it would not be unreasonable to expect that this would have occurred. It did not occur. 104The claim that Meda represented that she did not have a Will may be based on Meda's alleged silence when, in late 1997, Ezekiel suggested to her and Abe that they prepare Powers of Attorney and their Wills. Ezekiel's affidavit evidence in this regard was as follows: 29. In late 1997, I requested Aunt Meda and Abe to, "Prepare Powers of Attorney and also your Wills, if you don't have any", they said, "Yes, we will do so". They did not say to me that they possessed existing Wills or Powers of Attorney. 105Silence was not pleaded as a basis for the alleged representation, nor was it possible otherwise to glean from the evidence or submissions what it was the plaintiffs actually relied upon to ground this part of their claim. If it is silence then that is a "circumstance" to be assessed like any other circumstance: Re Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608; 39 FCR 31 per Black CJ at [3]. In a case in which silence is a basis for a claim that a representation was made, there needs to be a pleading of that claim (Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 per French CJ and Kiefel J at [5]) and an unambiguous context from which it said the representation arises. The fact that Abe and Meda said they would "do so" in the context of the conversation alleged by Ezekiel might amount only to a representation that they (or one of them) had not granted Power(s) of Attorney, rather than a representation that they (or one of them) had not made Wills. Alternatively it might amount to a representation that one of them had not granted a Power of Attorney but had made a Will, whereas the other had not made a Will but had granted a Power of Attorney. The ambiguity of the silence in this context prevents a finding that the representation was made. 106The plaintiffs have not established that this representation was made. 107As I have said earlier I have some real doubts about the accuracy of the conversation as alleged by Ezekiel and Louisa in mid 1997. However assuming that the words as claimed by Ezekiel and Louisa were said the only words ever spoken by Meda were "to you, to do this" and "yes, to you" (Ezekiel) and "to you" and "Yes, to you for your help" (Louisa). 108As Walker LJ said in Gillett v Holt [2000] EWCA Civ 66, [2001] Ch 210 at 232: There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded - that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved. 109Reliance and detriment are often intertwined: Susann Simpson-Cook v William John Martin Delaforce [2009] NSWSC 357 at [29]. On these matters Ezekiel gave the following affidavit evidence: 24. ...It was now [October 1997] clear to me that Aunt Meda and Abe were in declining health and their capacity to cope with daily routines was diminishing. 25. I therefore decided to assist Aunt Meda and Abe to a greater extent. I could do this because of my pending redundancy from work which would provide me with more time to assist them. I was also encouraged to provide this higher level of assistance to them because they had said that they would leave their assets "to you to do this". Although this statement was addressed to my sister, Louisa, and myself at the time, I understood this to mean that in return for this assistance by myself and my siblings Aunt Meda and Abe would bequeath their estates equally to us, that is, Aunt Meda's nieces and nephews. 26. I was encouraged to assist Aunt Meda and Abe and to manage their affairs by this understanding, and consequently, I did not at the time request any payment from them for the efforts involved. I felt I could afford to devote more time to them and not have to seek alternative employment after my pending redundancy. I was made redundant on the 27th April, 1998. I was then fifty five years of age and was able to be deployed within other divisions of the Commonwealth Public Service or seek alternative employment in the private sector. 27. In order to provide Aunt Meda and Abe with the high level of assistance necessary, I was unable to engage in full-time employment to provide for my wife and family and our future. 28. I also felt that my financial future was taken care of with the eventual bequest from Aunt Meda and Abe and therefore felt able to assist them with the level of assistance they required, unfettered by any financial concerns. Because I was about to become redundant from my work in April 1998, and rather than look for alternative work. 110Meda was admitted to Phillip House by May 1998. During the six or seven months from October 1997 (or the vast majority of it until late April 1998) whilst Meda was still living at home, Ezekiel was in full time employment. I have already concluded that the matters to which Ezekiel attended for Meda and Abe would not have prevented him from taking up other employment. The fact that Ezekiel had the time (even he was not paid for it) to take on the management services in respect of his cousin's substantial estate damages his claims of an inability to take up other employment because of the time needed to care for Meda and Abe. 111The Claim Forms that were lodged in April 2010 and the failure by Ezekiel to inform the Guardianship Tribunal of the alleged representations may be taken into account for the purposes of determining whether it is the case that Ezekiel relied upon the alleged representation. As I have said in relation to the contract claim, I regard Ezekiel's conduct (both in 2002 when he became Meda's financial manager and in 2010 when he lodged the Claim Forms on her estate) as significant. I am satisfied that had Ezekiel relied upon the alleged promise he would have certainly raised this matter at either of those times. The Claim Forms might support a case that there had been a representation made, which Ezekiel relied upon, that he would be entitled to be paid $50 per hour for attending to Meda's affairs, but they do not support the claim of reliance on the alleged representation. 112I am not satisfied that Ezekiel has established either reliance or detriment in relation to his estoppel claim. 113Neither Louisa nor Hilda gave any evidence of any prejudice as claimed in the Statement of Claim. At the time Louisa gave evidence she said that she was a secretary at the Prince of Wales Hospital. There was no evidence of her previous occupations and certainly there was no evidence of her professional career being adversely affected or prejudiced by any of the assistance that she gave to Meda and/or Abe. There was no evidence given by Louisa that her personal life was adversely affected by the time that she spent with either Meda or Abe. The highest that she put it was in cross-examination when she said that she would not have visited Meda or Abe as "regularly" as she did if the conversation had not occurred. 114I am quite satisfied from Hilda's evidence that she was willing to assist both Meda and Abe irrespective of any representation that might have been made by Meda. Hilda assisted them because she thought it was appropriate for a relative to do so. There was no evidence from which I could conclude that Hilda's personal or professional life was prejudiced as claimed. Rather I got the impression from Hilda's evidence that she enjoyed her relationship with Meda and did not see it as prejudicing her life at all. I am not satisfied that either Louise or Hilda relied upon the alleged representation to their detriment. 115The plaintiffs' estoppel claims fail. 116In the circumstances it is not necessary to consider any other defences raised by the defendant. Conclusion 117The Statement of Claim is dismissed. If the parties are unable to agree on a costs order I will hear argument on a date to be fixed by the parties seeking a mutually convenient date for such argument by arrangement with my Associate. ********** 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 2012